COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
CHARLES CITY COUNTY PUBLIC WORKS AND
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION,
VML INSURANCE PROGRAMS MEMORANDUM OPINION *
PER CURIAM
v. Record No. 2729-96-2 FEBRUARY 25, 1997
JOHN THOMAS WILLIAMS, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ralph L. Whitt, Jr.; Mark M. Caldwell, III;
Sands, Anderson, Marks & Miller, on brief),
for appellants.
(Charles A. Gavin; White, Blackburn & Conte,
P.C., on brief), for appellee.
Charles City County Public Works and its insurer
(hereinafter collectively referred to as "employer") contend that
the Workers' Compensation Commission erred in (1) finding that
John Thomas Williams, Jr. proved that he sustained an injury by
accident arising out of his employment on February 2, 1996; and
(2) reversing the deputy commissioner's credibility
determination. 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.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
A finding by the commission that an injury did or did not
arise out of the employment is a mixed finding of law and fact
and is properly reviewable on appeal. Jones v. Colonial
Williamsburg Found., 8 Va. App. 432, 434, 382 S.E.2d 300, 301
(1989). The phrase "arising out of" refers to the origin or
cause of the injury. County of Chesterfield v. Johnson, 237 Va.
180, 183, 376 S.E.2d 73, 74 (1989). To prevail, the employee
must "show that the conditions of the workplace . . . caused the
injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482,
484, 382 S.E.2d 305, 306 (1989). "'[C]ontortions of the body' to
perform a job task is a hazard of the workplace." Grove v.
Allied Signal, Inc., 15 Va. App. 17, 22, 421 S.E.2d 32, 35 (1992)
(citation omitted).
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). Based
on evidence in the record, the commission found that Williams was
positioned under a desk when he reached up in an awkward position
to hand his supervisor a heater cover and felt a "pop" in his
back. The commission found that shortly after the "pop,"
Williams attempted to rise and felt excruciating pain, which he
immediately reported to his employer. The commission also found
that Dr. Irby's report provided the causal connection between the
injury that Williams suffered and the surgery. In rendering its
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decision, the commission "reviewed the transcript, the recorded
statement, and the medical records."
The commission, in its role as fact finder, was entitled to
accept Williams' testimony and Dr. Irby's opinion. Williams'
testimony, and Dr. Irby's opinion, constitute credible evidence
to support the commission's findings. Williams' employment
required that he assume an awkward position under the desk,
remove the heater cover, hand it to his co-worker, and then
extricate himself from his position under the desk. This
evidence established that Williams' injury was causally connected
to the manner in which he was required to perform his work and
flowed from his employment as a rational consequence. Factual
findings made by the commission will be upheld on appeal if
supported by credible evidence. James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). "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." Wagner Enters., Inc. v. Brooks, 12 Va.
App. 890, 894, 407 S.E.2d 32, 35 (1991).
II.
Employer contends that the full commission arbitrarily
overturned the deputy commissioner's credibility determination
and failed to articulate a sufficient basis for its conclusion.
That argument lacks merit.
The 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
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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).
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 Williams 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 Williams' version of events]." Id. Moreover, the
commission's opinion clearly shows that it weighed all of the
evidence, including the recorded statement, the medical records,
and the witnesses' testimony in rendering its decision.
For these reasons, we affirm the commission's decision.
Affirmed.
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