COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
MW MANUFACTURERS, INC. AND
TRAVELERS INDEMNITY COMPANY
OF ILLINOIS
MEMORANDUM OPINION *
v. Record No. 2468-97-3 PER CURIAM
APRIL 14, 1998
HENRY B. DOWDY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Dale W. Webb; Monica L. Taylor; Gentry,
Locke, Rakes & Moore, on brief), for
appellants.
(Richard M. Thomas; Rider, Thomas,
Cleaveland, Ferris & Eakin, on brief), for
appellee.
MW Manufacturers, Inc. and its insurer (hereinafter referred
to as "employer") contend that the Workers' Compensation
Commission erred in finding that Henry B. Dowdy proved that (1)
he sustained an injury caused by a specific identifiable incident
occurring at work; and (2) his back injury was caused by that
injury by accident. Upon reviewing the record and the briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27.
I.
On appeal, we view the evidence in the light most favorable
to Dowdy, the prevailing party below. See R.G. Moore Bldg. Corp.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So
viewed, the evidence proved that on September 6, 1996, Dowdy and
a co-worker, Junior Frith, were lifting a triple window unit when
Frith lost his grip on the unit. Dowdy used his left hand to
prevent the unit from falling and, in doing so, felt pain in his
lower back. The window unit weighed approximately 250 pounds and
measured six feet long and nine feet wide.
Dowdy testified that he reported the incident to his
supervisor and to the plant nurse, but did not describe the
accident with any specificity. Dowdy also gave his employer a
recorded statement that detailed the incident consistent with his
hearing testimony. Dr. Roger D. Tims, the first doctor who
treated Dowdy, recorded a history of "acute low back pain which
occurred after lifting windows at work." Dowdy gave Dr.
W. Ronald Howell and Dr. Edgar N. Weaver, Jr. a history
consistent with his hearing testimony.
Based upon the evidence in the record, the commission made
the following findings:
The Deputy Commissioner found [Dowdy]
testified credibly regarding the details of
the September 6, 1996, incident, finding his
account consistent with that given to the
plant nurse, the carrier, and Drs. Howell and
Weaver. As to the history recorded by Dr.
Tims, the Deputy Commissioner found that
[Dowdy] did not appreciate the significance
of the details of the incident. . . .
While it is true that Dowdy was
convicted of a felony over ten years ago,
this conviction does not mean [he] cannot
testify truthfully. Moreover, co-worker
Frith corroborated Dowdy's testimony about
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the specific details of the September 6,
1996, incident and Dowdy reported the same
history to the carrier, the plant nurse and
Drs. Howell and Weaver.
That Dr. Tims reported that [Dowdy]
experienced back pain after lifting "windows"
is not dispositive. Dowdy was unsure whether
he reported a specific incident to Dr. Tims,
and the bulk of the record reflects that
[Dowdy] reported a specific incident to
several individuals. Also, the only other
witness to the September 6, 1996, incident
testified that [Dowdy] injured his back while
preventing a large window unit from falling.
The commission ruled that Dowdy proved that he was injured as a
result of an identifiable incident at work on September 6, 1996
and "agree[d] with the Deputy Commissioner that [Dowdy] proved a
compensable injury by accident."
"In order to carry [the] burden of proving an 'injury by
accident,' a claimant must prove that the cause of [the] injury
was an identifiable incident or sudden precipitating event and
that it resulted in an obvious sudden mechanical or structural
change in the body." Morris v. Morris, 238 Va. 578, 589, 385
S.E.2d 858, 865 (1989). "In determining whether credible
evidence exists [to support the commission's ruling], the
appellate court does not retry the facts, reweigh the
preponderance of the evidence, or make its own determination of
the credibility of the witnesses." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). "The
fact that there is contrary evidence in the record is of no
consequence if there is credible evidence to support the
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commission's finding." Id.
In rendering its decision, the commission considered the
various medical histories and resolved any inconsistencies
between this evidence and Dowdy's testimony in favor of Dowdy.
Dowdy's testimony, which was corroborated by Frith, the plant
nurse, the recorded statement, and the medical histories of Drs.
Howell and Weaver, provides credible evidence to support the
commission's finding that Dowdy proved an identifiable incident
that resulted in a compensable injury. Thus, that finding is
conclusive on this appeal. See James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
II.
In holding that Dowdy proved that his back injury was caused
by the September 6, 1996 accident at work, the commission found
as follows:
Dr. Weaver offered no opinion on causation.
Dr. Howell concluded that he could not state
within a reasonable medical certainty that
the degenerative disc disease from L1 through
L4 was causally related to the industrial
accident. However, in his Attending
Physician's Report of February 3, 1997, Dr.
Howell related [Dowdy's] persistent radicular
back pain to the September 6, 1996, incident.
"Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing."
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 214 (1991). Furthermore, "[t]he actual determination
of causation is a factual finding that will not be disturbed on
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appeal if there is credible evidence to support the finding."
Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d
814, 817 (1989).
In its role as fact finder, the commission was entitled to
weigh the medical evidence and to accept the opinion Dr. Howell
expressed in his Attending Physician's Report. That opinion and
Dowdy's testimony that he had not experienced back symptoms
immediately prior to the September 6, 1996 incident at work
constitute credible evidence to support the commission's
decision. Consistent with Dollar General Store v. Cridlin, 22
Va. App. 171, 468 S.E.2d 152 (1996), the commission properly
considered both Dowdy's testimony and the medical evidence in
determining causation.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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