COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
RENFRO CORPORATION
AND
HEWITT, COLEMAN & ASSOCIATES MEMORANDUM OPINION *
PER CURIAM
v. Record No. 3010-95-3 JULY 9, 1996
RITA D. COLLINS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Deborah W. Dobbins; Gilmer, Sadler, Ingram,
Sutherland & Hutton, on brief), for
appellants.
(Randolph D. Eley, Jr., on brief), for
appellee.
Renfro Corporation and its insurer (hereinafter collectively
referred to as "employer") contend that the Workers' Compensation
Commission erred in finding that Rita D. Collins ("claimant") (1)
proved she sustained compensable injuries by accident; (2) proved
her back condition and resulting disability were causally related
to a compensable injury by accident; and (3) was not required to
market her residual work capacity at certain points in time.
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.
I.
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). "In
order to carry [her] burden of proving an 'injury by accident,' a
claimant must prove that the cause of [her] 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). We must uphold the commission's findings of fact if
they are supported by credible evidence. James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
Claimant testified that, on October 22, 1994, when she
attempted to arise from a stool, the stool stuck on the mat
underneath it, causing her to fall backwards and hit her back,
leg and head. After the fall, her "hip was out." A co-worker
helped claimant get up. Claimant sought immediate medical
attention from Dr. Wiley A. Greene. Dr. Greene diagnosed a
lumbar sprain/strain with possible disc rupture. Claimant
admitted she had treated with Dr. Greene prior to October 22,
1994 for back and head injuries sustained in a non-work-related
August 25, 1994 incident. After the August 25, 1994 incident,
claimant returned to work on October 17, 1994 and performed her
regular duties until the October 22, 1994 accident. After the
October 22, 1994 accident, claimant returned to her pre-injury
work, without restrictions, on December 4, 1994.
Claimant testified that, on January 24, 1995, she lifted a
2
conveyor belt and felt a pop in her lower back, causing increased
back pain and leg numbness. She sought treatment from Dr. Greene
on the same day. Dr. Greene diagnosed intervertebral disc
disorder and lumbar spine sprain/strain.
Claimant's testimony describing the October 22, 1994 and
January 24, 1995 accidents was consistent with the descriptions
she wrote on employer's accident forms. The histories of these
accidents, which Dr. Greene reported on his Attending Physician's
Reports, are not inconsistent with claimant's testimony.
Moreover, on January 25, 1995, claimant gave Dr. Robert B.
Stephenson a history of the January 24, 1995 accident which is
consistent with her hearing testimony.
Claimant's testimony, which was corroborated by her reports
to employer and the medical histories, constitutes credible
evidence to support the commission's decision. The commission,
after observing the demeanor of the witnesses and reviewing the
evidence, afforded greater probative weight to claimant's
testimony than to the testimony of employer's witnesses. It is
well settled that the determination of a witness' credibility is
within the fact finder's exclusive purview. Goodyear Tire &
Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437
(1987). In this instance, whether claimant sustained injuries by
accident arising out of and in the course of her employment
depended largely upon the credibility of the witnesses. The
commission resolved any conflicts in the evidence in favor of
3
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). Because
credible evidence supports the commission's decision, we cannot
find that the commission erred in holding that claimant proved
she sustained injuries by accident arising out of and in the
course of her employment on October 22, 1994 and January 24,
1995. "The fact that there is contrary evidence in the record is
of no consequence if there is credible evidence to support the
commission's decision." Id.
II.
On January 25, 1995, Dr. Stephenson reported that claimant
suffered "an exacerbation of a pre-existing low back and cervical
strain with possible LLE radiculopathy." Dr. James M. Leipzig
noted that, after the January 24, 1995 accident, claimant began
suffering from different symptoms. Dr. Leipzig specifically
noted that "the left leg component to this current flare is a new
symptom to her." On his March 15, 1995 Attending Physician's
Report, Dr. Greene opined that claimant's intervertebral disc
disorder and lumbar sprain/strain were due to the January 24,
1995 accident.
The uncontradicted opinion of Dr. Greene, coupled with the
records of Drs. Stephenson and Leipzig, constitute credible
4
evidence to support the commission's decision that claimant
proved that the January 24, 1995 injury by accident exacerbated
her pre-existing back condition and resulted in her current
symptoms and disability.
III.
On November 18, 1994, Dr. Stephenson released claimant to
light duty work. Claimant returned to her pre-injury work,
without restrictions, on December 4, 1994. Under the
circumstances of this case, the commission ruled that it was not
unreasonable for claimant to fail to market her residual work
capacity during this short period of time. We agree with the
commission. This issue is controlled by our decision in Holly
Farms v. Carter, 15 Va. App. 29, 422 S.E.2d 165 (1992).
Accordingly, we cannot say as a matter of law that the commission
erred in awarding claimant temporary total disability benefits
from October 24, 1994 through December 3, 1994.
On January 26, 1995, Dr. Greene opined that claimant was
totally incapacitated. He excused claimant from work until
February 10, 1995. On February 7, 1995, Dr. Leipzig opined that
claimant should remain off work until March 7, 1995. In a March
15, 1995 Attending Physician's Report, Dr. Greene reported that
claimant became totally disabled on January 24, 1995. Dr. Greene
did not know when claimant would be able to return to light duty
work. On March 24, 1995, Dr. Stephenson noted that claimant
5
suffered from "persistent pain in the low back," "diffuse
numbness," and "increased stiffness." Dr. Stephenson did not
opine in this report that claimant could return to light or full
duty. Rather, he prescribed a neurology evaluation, an
appointment with Dr. Jackson, and possible treatment at the
Center for Behavioral Medicine. Dr. Stephenson told claimant to
continue with home exercises and activity as tolerated.
Based upon this record, the commission could reasonably
infer that claimant remained totally disabled after the January
24, 1995 accident, and therefore, did not have a duty to market
her residual capacity. Accordingly, the commission did not err
in awarding claimant temporary total disability benefits
beginning January 24, 1995.
For these reasons, we affirm the commission's decision.
Affirmed.
6
Renfro Corp. v. Rita D. Collins
Combined Opinion