COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
HUNTLEY FARMS
AND
CENTURY INDEMNITY COMPANY MEMORANDUM OPINION *
PER CURIAM
v. Record No. 1169-96-4 NOVEMBER 26, 1996
RANDOLPH S. KENDRICK, SR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Douglas A. Seymour, on brief), for
appellants.
(Lawrence J. Pascal; Ashcraft & Gerel, on
brief), for appellee.
Huntley Farms 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
Randolph S. Kendrick, Sr. ("claimant") proved he sustained an
injury by accident arising out of and in the course of his
employment on August 15, 1994. 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).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 commission found that claimant sustained a new injury by
accident arising out of his employment on August 15, 1994. In so
ruling, the commission stated:
We find credible the claimant's testimony
that as he was stepping down from a saw mill
platform, he stepped awkwardly onto the
corner of a step in order to avoid a log
which was protruding onto the step and a
co-worker who was sawing on the platform.
The comments of Dr. Dart indicate that the
April, 1994 injury contributed to the
claimant's ankle instability. The claimant,
his wife, and the farm manager all testified
that the claimant continued to experience
problems with this ankle following the April
injury. The awkward movement onto the step,
combined ith [sic] the pre-existing ankle
instability, caused claimant to fall.
Although the step from the saw mill platform
was not defective, the claimant's movement
was impeded. The Deputy Commissioner found
that this description of the accident was not
credible because the medical reports do not
mention the log protruding on the step.
However, we do not find that the medical
reports which describe the accident in
general terms, impeach claimant's credible
testimony.
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).
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Claimant's testimony, which was not inconsistent with the
medical records, provides credible evidence to support the
commission's finding that he sustained a new injury by accident
arising out of and in the course of his employment on August 15,
1994. The deputy commissioner's credibility determination was
based on the evidence and the substance of claimant's testimony.
Therefore, the full commission could make its own credibility
determination. Id. In its role as fact finder, the commission
was entitled to accept claimant's testimony.
In addition, Dr. Dart's medical records provide credible
evidence to support the commission's finding that claimant's
post-August 15, 1994 disability and left ankle surgeries were
causally related to his August 15, 1994 injury by accident.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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