COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
THOMAS MYERCHIN
MEMORANDUM OPINION *
v. Record No. 0617-97-4 PER CURIAM
AUGUST 26, 1997
HEART CORPORATION AND
MICHIGAN MUTUAL INSURANCE
COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Mark Westerfield; Johnston, Foley &
Westerfield, on briefs), for appellant.
(Cecil H. Creasey, Jr.; Sands, Anderson,
Marks & Miller, on brief), for appellees.
Thomas Myerchin (claimant) contends that the Workers'
Compensation Commission (commission) erred in denying benefits on
the ground that he failed to market his residual work capacity,
(1) where his physician had released him to part-time light-duty
work; and (2) Heart Corporation (employer) failed to provide
necessary medical care. Pursuant to Rule 5A:21(b), employer
raises the following additional questions: Whether the
commission erred in finding that (1) claimant proved he sustained
an injury by accident arising out of and in the course of his
employment on September 12, 1995; and (2) claimant gave employer
timely notice of his September 12, 1995 industrial injury. Upon
reviewing the record and the briefs of the parties, we conclude
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that the issues raised on appeal by both parties are without
merit. Accordingly, we summarily affirm the commission's
decision. Rule 5A:27.
Injury by Accident
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
So viewed, the evidence proved that in June 1995, claimant
injured his right kneecap. Thereafter, he came under the care of
Dr. Young J. You. In June 1995, Dr. You prescribed a patella
stabilizing brace. On July 12, 1995, Dr. You noted that
claimant's knee appeared stable. Dr. You advised claimant to
wear the brace for any major activity. Dr. You did not indicate
the need for any further treatment at that time.
Claimant testified that on September 12, 1995, while working
for employer as a mechanic, he was assigned to go to American
Stone to work on an overhead crane, his last assignment of the
day. At approximately 4:00 p.m., claimant began to descend to a
platform after taking readings and measurements. In the process,
he fell four to five feet, his foot jammed, and he experienced a
mild ache and pop in his right knee. When claimant returned to
the shop, he did not see a supervisor. He went home with an ache
in his knee. The next day, claimant had to stop working due to
severe pain in his knee. At that time, he reported his September
12, 1995 injury to Stephen Welch, employer's part owner and vice
2
president of operations.
On September 15, 1995, claimant returned to Dr. You.
Claimant reported a history of falling while working on a crane
four days earlier, causing an injury to his knee with an
increased amount of pain, soreness, and swelling. Dr. You opined
that claimant's symptoms were consistent with the September 12,
1995 injury described to him by claimant, rather than claimant's
pre-existing knee injury. Dr. You opined that claimant's prior
dislocated patella had no relation to the current anterior
cruciate ligaments and meniscus injury.
"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). Claimant's testimony, which was
corroborated by the history he reported to Dr. You, provides
credible evidence to support the commission's finding that
claimant proved an identifiable incident resulting in a sudden
mechanical change in his body. 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).
Notice
Claimant testified that he reported his injury to Welch the
day after it occurred. Welch denied knowing about claimant's
3
work-related injury until approximately thirty days later when
the insurer notified employer of the accident.
As fact finder, the commission was entitled to accept
claimant's version of events, and to reject Welch's testimony.
It is well settled that credibility determinations are within the
fact finder's exclusive purview. See Goodyear Tire & Rubber Co.
v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).
Claimant's testimony constitutes credible evidence to support the
commission's finding that he gave timely notice of the September
12, 1995 injury by accident to employer.
In rendering its decision, the commission considered Welch's
testimony, and resolved any inconsistencies between his testimony
and claimant's testimony in favor of claimant. "In determining
whether credible evidence exists, 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 commission's finding." Id.
Marketing
It is well settled that in order to establish entitlement to
benefits, a partially disabled employee must prove that he has
made a reasonable effort to procure suitable work but has been
unable to do so. See Great Atl. & Pac. Tea Co. v. Bateman, 4 Va.
4
App. 459, 464, 359 S.E.2d 98, 101 (1987).
Dr. You testified that claimant could have returned to
part-time, light-duty work as of September 15, 1995. No evidence
proved that claimant made any effort to market his residual work
capacity. Claimant argues that because he was released only to
part-time employment, he should not be penalized for failing to
market his residual capacity by suffering a complete loss of wage
benefits. The Workers' Compensation Act ("the Act") provides no
exception for employees released to part-time light-duty work
versus full-time light-duty work with respect to that employee's
duty to market his or her residual work capacity. Accordingly,
we conclude that this argument is without merit.
Claimant also contends that because employer wrongfully
withheld medical care, claimant should not be penalized for his
failure to market his residual capacity. Again, this argument is
without merit. No evidence proved employer wrongfully withheld
medical care. Moreover, the Act does not support such an
argument.
For the reasons stated, we affirm the commission's decision.
Affirmed.
5
Thomas Myerchin v. Heart Corporation
Combined Opinion