COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
VIRGINIA GUNITE, INC.
AND
VIRGINIA CONTRACTORS GROUP MEMORANDUM OPINION *
SELF-INSURANCE ASSOCIATION PER CURIAM
APRIL 22, 1997
v. Record No. 2852-96-4
ROBERT WHITE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Roger L. Williams; Vasiliki Moudilos;
Williams & Lynch, on brief), for appellants.
(Craig A. Brown; Ashcraft & Gerel, on brief),
for appellee.
Virginia Gunite, Inc. and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission (commission) erred in finding that (1)
Robert White proved he sustained an injury by accident arising
out of and in the course of his employment on May 15, 1995; and
(2) White proved that his post-May 15, 1995 medical treatment
and disability were causally related to the May 15, 1995 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. Rule
5A:27.
On appeal, we view the evidence in the light most favorable
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to the prevailing party below. 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 on May 15, 1995, White felt a
pop in his back as he and two co-workers lifted a compressor to
hook it onto a truck's trailer hitch. Immediately after the
incident, White reported the injury to his foreman, Wayne Purdy.
Purdy told White to sit in a vehicle.
Purdy denied that White lifted a compressor on May 15, 1995,
stating that the compressors were already connected to the
trucks. Purdy initially stated that White did not report an
injury on May 15, 1995. However, on cross-examination, Purdy
admitted that on May 16, 1995, he told Gary H. Rudd, president of
the company, that White told him that he had hurt his back.
The May 16, 1995 Potomac Hospital nursing assessment
reported that White "lifted a compressor [at] 6pm yesterday -
felt his back pul[l]." Dr. Joseph M. Ceballos reported a history
of "pain in the lower back after [White] lifted a compressor at
work." Dr. Ceballos diagnosed an acute strain of the lumbosacral
joint.
On May 20, 1995, Dr. John A. Bruno, Jr. reported that White
told him that he strained his back lifting heavy objects on May
12. White complained of "severe back pain and spasm with
radiation of the pain to the legs." Dr. Bruno reported that
White "has a severe spondylolisthesis." Dr. Bruno referred White
to Dr. Mirza S. Baig, an orthopedic surgeon.
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On May 24, 1995, Dr. Baig reported that White felt pain in
the lumbar region on May 15, 1995 while lifting and pulling a
compressor. Dr. Baig noted that White described a sudden onset
of symptoms while lifting the compressor to hook it to a truck.
White complained to Dr. Baig of pain radiating into his legs.
Dr. Baig noted that White was experiencing "weakness in the upper
and lower extremities." Dr. Baig diagnosed L4-5 spondylolysis
with spondylolisthesis causing spinal stenosis. Dr. Baig
referred White to Dr. Ian Gordon.
On August 29, 1995, Dr. Gordon noted a history of White
injuring his back while lifting a heavy compressor in May 1995.
Dr. Gordon noted that White complained of marked right sciatica
and suffered from numbness in his foot and hip and weakness in
his leg. Dr. Gordon diagnosed L5 radiculitis and recommended
various treatment alternatives.
I. 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). The commission found that White
sustained an injury by accident on May 15, 1995 while lifting the
compressor.
White's testimony, which was corroborated by the histories
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contained in the medical records of Potomac Hospital and Drs.
Bruno, Baig, and Gordon, provides credible evidence to support
the commission's finding that White sustained an injury by
accident arising out of and in the course of his employment on
May 15, 1995. Thus, that finding is conclusive on this appeal.
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989).
Employer argues that the commission erred in reversing the
deputy commissioner's credibility determination. We disagree.
If, as in this case, "the deputy commissioner's determination of
credibility is based on the substance of the testimony rather
than upon the witness's demeanor, such a finding is as
determinable by the full commission as by the deputy." Kroger
Co. v. Morris, 14 Va. App. 233, 236, 415 S.E.2d 879, 880 (1992).
The deputy commissioner's credibility determination was based on
the evidence and the substance of the witnesses' testimony.
Therefore, the full commission could make its own credibility
determination. Id. In its role as fact finder, the commission
was entitled to accept White's testimony.
II. Causation
"The actual determination of causation is a factual finding
that will not be disturbed on 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). Furthermore,
"the employer takes the employee as he is and if the employee is
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suffering some physical infirmity, which is aggravated by an
industrial accident, the employer is responsible for the end
result of such accident." McDaniel v. Colonial Mechanical Corp.,
3 Va. App. 408, 414, 350 S.E.2d 225, 228 (1986).
Dr. Bruno's records proved that White suffered from severe
spondylolisthesis without a significant degree of neurological
deficit shortly before the May 15, 1995 accident. Dr. Baig
testified that after the May 15, 1995 accident, White, who was
neurologically intact before the accident, suffered from weakness
in his left calf, and weakness in his hip muscles and quadriceps
muscles on both sides. Dr. Baig noted that White also had some
sensitivity loss in both legs. Dr. Baig opined that "the
neurological deficit that I checked out on May 23, 1995, was
caused by the compressor injury." Dr. Baig further opined that
the May 15, 1995 accident aggravated White's preexisting
condition, causing total disability from work. Dr. Baig based
this opinion upon the fact that White was able to engage in heavy
labor before the May 15, 1995 incident, as well as the objective
neurological findings which were not present before May 15, 1995.
Dr. Baig was aware of White's significant preexisting back
problems. Dr. Baig's medical records and uncontradicted opinions
provide credible evidence to support the commission's finding
that White's treatment and disability are related to the May 15,
1995 injury by accident.
For the reasons stated, we affirm the commission's decision.
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Affirmed.
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