COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
AUGUSTA LUMBER & SUPPLY, INC. AND
LIBERTY MUTUAL FIRE INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 2563-96-3 PER CURIAM
JUNE 24, 1997
JAMES F. TRUSLOW
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(J. David Griffin; Fowler, Griffin, Coyne &
Coyne, P.C., on briefs), for appellants.
(Terry L. Armentrout; Armentrout &
Armentrout, P.L.C., on brief), for appellee.
Augusta Lumber & Supply, Inc. and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission (commission) erred in reversing the
deputy commissioner's credibility determination and finding that
James F. Truslow (claimant) proved that he sustained an injury by
accident arising out of and in the course of his employment on
August 30, 1995. 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. Rule
5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "In
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
order to carry his burden of proving an 'injury by accident,' a
claimant must prove that the cause of his 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).
The deputy commissioner was not persuaded that claimant
sustained a work-related accident on August 30, 1995. The deputy
commissioner based his conclusion upon his findings that claimant
worked for four days after the accident, he did not report the
accident immediately, and he did not seek medical attention until
four weeks after the accident.
The full commission reversed the deputy commissioner and
held that claimant's testimony regarding the August 30, 1995
accident was credible. In so ruling, the commission found that
claimant testified that he immediately reported the accident to
his supervisor, Glen Harris, and later that day he reported the
accident to another supervisor, Joe Peduto. The commission also
considered the medical records in which claimant consistently
reported a history of an accident on August 30, 1995 while
loading lumber onto a trailer at work.
Employer contends that the full commission arbitrarily
disregarded the deputy commissioner's credibility determination
and failed to articulate a sufficient basis for its conclusion.
However,
[t]he principle set forth in [Goodyear Tire &
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Rubber Co. v.] Pierce[, 5 Va. App. 374, 383,
363 S.E.2d 433, 438 (1987),] does not make
the deputy commissioner's credibility
findings unreviewable by the commission.
Rather, it merely requires the commission to
articulate its reasons for reversing a
specific credibility determination of the
deputy commissioner when that determination
is based upon a recorded observation of
demeanor or appearance of a witness. In
short, the rule in Pierce prevents the
commission from arbitrarily disregarding an
explicit credibility finding of the deputy
commissioner.
Bullion Hollow Enters., Inc. v. Lane, 14 Va. App. 725, 729, 418
S.E.2d 904, 907 (1992).
In this case, as in Bullion, upon a review of the deputy
commissioner's decision, we do not find a "specific recorded
observation" concerning any witness' demeanor or appearance
related to a credibility determination. The deputy commissioner
merely concluded from the evidence before him that claimant had
not met his burden of proof. "Absent a specific, recorded
observation regarding the behavior, demeanor or appearance of
[the witnesses], the commission had no duty to explain its
reasons for . . . [accepting claimant's version of events]." Id.
Moreover, when the commission's findings are supported by
credible evidence, as in this case, those findings are conclusive
and binding on appeal. Ross Laboratories v. Barbour, 13 Va. App.
373, 377-78, 412 S.E.2d 205, 208 (1991). Claimant testified that
on August 30, 1995, at approximately 3:10 p.m., he felt a pull in
his neck down to the middle of his back while loading flooring
lumber onto a truck. At that time, he reported to Harris that he
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might have pulled something. Claimant also reported the incident
to Peduto. Claimant continued to work, but felt stiff the next
day. He worked for four more days, but refrained from heavy
labor. The medical records of Drs. William J. Knizer, Thomas J.
Spicuzza, and William C. Broaddus corroborated claimant's
testimony. Those records consistently reported a history of a
neck and back injury while loading lumber at work. A November
22, 1995 MRI revealed a moderate right paracentral herniated
nucleus pulposus at the C6-7 level. On March 18, 1996, Dr.
Spicuzza opined that claimant's disability was causally related
to the August 30, 1995 accident.
Based upon claimant's testimony and the corroborating
medical histories, we find that credible evidence supports the
commission's decision that claimant suffered an injury by
accident arising out of and in the course of his employment on
August 30, 1995 and that its decision was not arbitrary.
"Although contrary evidence may exist in the record, findings of
fact made by the commission will be upheld on appeal when
supported by credible evidence." Bullion, 14 Va. App. at 730,
418 S.E.2d at 907.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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