COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
DOMINION WATER, INC.
AND
AETNA CASUALTY & SURETY
COMPANY OF ILLINOIS MEMORANDUM OPINION *
PER CURIAM
v. Record No. 2661-96-4 FEBRUARY 25, 1997
CALVIN EUGENE DUNCAN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Michael E. Ollen; Law Offices of William C. E.
Robinson, on brief), for appellants. Appellants
submitting on brief.
(Nikolas E. Parthemos; Prosser, Parthemos &
Bryant, on brief), for appellee. Appellee
submitting on brief.
Dominion Water, Inc. and its insurer (hereinafter
collectively referred to as "employer") appeal a decision of the
Workers' Compensation Commission (commission) awarding
compensation benefits to Calvin Eugene Duncan (claimant).
Employer contends that the commission erred in (1) reversing the
deputy commissioner's determination that claimant and his
co-worker, Larry King, were not credible; and (2) finding that
claimant proved he sustained a back injury as the result of a
June 20, 1995 injury by accident arising out of and in the course
of his employment. Finding no error, we affirm.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
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
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 found that claimant did not prove he
sustained an injury by accident arising out of and in the course
of his employment on June 20, 1995. The deputy commissioner
rejected claimant's testimony, finding that it conflicted with an
August 29, 1995 letter written by claimant. In the letter,
claimant described pain that arose from a combination of
activities during the course of the entire day, including a fall
into a hole. In addition, the deputy commissioner found that Dr.
James E. Favareau's July 17, 1995 medical history of long-
standing back pain conflicted with claimant's testimony relating
a specific incident resulting in back pain. The deputy
commissioner also took into account that claimant denied prior
back complaints, although the medical records showed that he had
undergone such treatment since 1989. Furthermore, the deputy
commissioner noted that Larry King was not a credible witness
2
based upon his demeanor, including his attempts to avoid
answering questions, yawning, evasiveness, lack of respect, and
an indifferent attitude.
The full commission reversed the deputy commissioner's
finding and held that claimant proved he sustained a back injury
as a result of stepping into a hole on June 20, 1995 in the
course of his employment, resulting in total disability beginning
July 20, 1995. In so ruling, the commission thoroughly reviewed
King's testimony and disagreed with the deputy's characterization
of it. The commission found no evidence in the record to show
that King demonstrated a lack of respect or an indifferent
attitude. Secondly, the commission accepted claimant's
testimony, which it found to be corroborated by his co-workers'
testimony. Finally, the commission found that Dr. William K.
Renas' undisputed opinion established that the fall on June 20,
1995 caused claimant's back injury.
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 &
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
3
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 claimant's demeanor or appearance related
to the deputy commissioner's credibility determination. The
deputy commissioner merely concluded from the evidence before him
that claimant was not credible. "Absent a specific, recorded
observation regarding the behavior, demeanor or appearance of
[the witness], the commission had no duty to explain its reasons
for . . . [accepting claimant's version of events]." Id. With
respect to Larry King's testimony, the commission sufficiently
articulated its reasons for disagreeing with the deputy
commissioner's determination that King was not credible.
II.
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 June 20, 1995, while dragging mud and rocks brought up by a
drill, he stepped into a hole approximately thirty inches deep
and twenty inches in diameter, causing him to twist and catch
himself as he fell towards the ground. He initially felt a
4
tingling sensation in his lower back and left leg, and then felt
back and leg pain that evening. When he completed his work on
June 20, 1995, claimant told his supervisor, Mike Downey, that he
thought he had hurt his back. James Ball, claimant's co-worker
corroborated claimant's testimony concerning the incident.
Downey acknowledged that claimant told him that he stepped in a
hole and twisted his knee around June 20, 1995.
Claimant first sought medical attention on July 17, 1995
from Dr. Favareau. Claimant contended that he told Dr. Favareau
about the June 20, 1995 incident and could not explain why Dr.
Favareau did not record it in his initial history. On July 21,
1995, claimant began treating with Dr. Renas, a chiropractor.
Claimant gave Dr. Renas a history of back and leg pain resulting
from a work-related fall into a hole on June 20, 1995. In his
Attending Physician's Report dated November 9, 1995, Dr. Renas
opined that claimant's back condition and resulting disability
were caused by the June 20, 1995 work-related fall. Dr. Renas
opined that claimant had been totally disabled as a result of the
June 20, 1995 incident since July 20, 1995. The medical records
also showed that claimant had received chiropractic treatment for
back problems prior to June 20, 1995. He received three
treatments in 1989, one in 1991, one in 1993 and one in 1994.
The last treatment prior to June 20, 1995 occurred on May 28,
1994. Claimant's pre-June 20, 1995 back problems never prevented
him from working.
5
Based upon the testimony of claimant and Ball, and Dr.
Renas's medical records, we find that credible evidence supports
the commission's decision that claimant proved he sustained a
back injury causally related to a June 20, 1995 injury by
accident. "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 these reasons, we affirm the commission's decision.
Affirmed.
6