COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
EMPORIA FEED AND SEED, INC.
AND
CONTINENTAL INSURANCE COMPANY MEMORANDUM OPINION *
PER CURIAM
v. Record No. 2849-96-2 APRIL 22, 1997
DONALD G. HOBBS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Richard A. Hobson, on brief), for
appellants.
(Peter D. Eliades; Marks & Harrison, on
brief), for appellee.
Emporia Feed and Seed, Inc. and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission (commission) erred in finding that Donald
G. Hobbs (claimant) proved that he sustained an injury by
accident arising out of and in the course of his employment on
August 22, 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.
Claimant, who works for employer as a counter clerk,
testified that on August 22, 1995, he went to the warehouse to
retrieve bags of feed in order to fill a customer's order.
Claimant stated: "I went in and lifted a hundred pound bag of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
feed. And, when I did that I felt a sharp pain in the direct
center of my shoulders and in my spine." Claimant had to lift
several bags to fill the order, but maintained that he felt the
pain upon lifting the first bag. When he finished filling the
order, claimant reported his injury to his supervisor, Ricky
Wood, and his supervisor's secretary. Tracy Cutliff, claimant's
girlfriend and employer's bookkeeper, testified that on August
22, 1995, claimant reported to her that he injured himself
lifting a 100 pound bag of feed.
Claimant's initial medical care provider, Dr. Kathryn
Bennett, D.C., recorded a history of claimant injuring himself
while lifting feed bags. On October 12, 1995, Dr. Richard
Waller, a neurologist, recorded a history of claimant feeling a
sharp pain in the center of his back between his shoulder blades
when he picked up a feed bag without bending his legs. Dr.
Waller diagnosed a herniated thoracic disc.
In an August 22, 1995 letter to the employer's owner,
claimant stated that he pulled muscles in his back while lifting
bags of 100 pound feed. In a September 14, 1995 recorded
statement given by claimant to employer's insurance carrier,
claimant stated that he could not pinpoint a specific incident
that caused his back injury.
Based upon this record, the commission found as follows:
We have carefully considered the
evidence and find it preponderates in
establishing an injury by accident. The
Deputy Commissioner believed the claimant
sustained a noncompensable cumulative trauma
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injury. However, the claimant testified to a
specific incident and his testimony is
corroborated by the account given to Dr.
Waller and the Employer's First Report of
Accident. While there is conflicting
evidence in the record, we find it
establishes an 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). Claimant's testimony, which was
corroborated by Dr. Waller's medical history, provides credible
evidence to support the commission's finding that he proved an
identifiable incident resulting in a sudden mechanical change in
his body. 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).
In rendering its decision, the commission considered the
various medical histories, claimant's letter to employer, and
claimant's recorded statement, and the commission resolved any
inconsistencies in this evidence 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
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evidence in the record is of no consequence if there is credible
evidence to support the commission's finding." Id.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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