COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia
OFFICE MAX, INC., ET AL.
v. Record No. 1875-95-2 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
LINDA ANN MOREHOUSE APRIL 9, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Joseph C. Veith, III (Montedonico, Hamilton &
Altman, P.C., on briefs), for appellants.
David C. Jackson (William G. Shields &
Associates, on brief), for appellee.
Office Max, Inc. (employer) appeals a decision of the
Workers' Compensation Commission (commission) awarding temporary
total disability benefits to Linda Ann Morehouse (claimant).
Employer contends on appeal that the commission's finding of
accidental injury is unsupported by credible evidence. We
disagree and affirm the commission.
The parties are fully conversant with the record, and we
recite only those facts necessary to a disposition of this
appeal.
Guided by well established principles, we construe the
evidence in the light most favorable to the party prevailing
below, claimant in this instance. Crisp v. Brown's Tysons Corner
Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).
"If there is evidence, or reasonable inferences can be drawn from
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the evidence, to support the Commission's findings, they will not
be disturbed on review, even though there is evidence in the
record to support a contrary finding." Morris v. Badger
Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876,
877 (1986).
Claimant was employed as a "floor supervisor," primarily
responsible for "stocking shelves." On September 27, 1994, after
removing several boxes from shelves, claimant "pick[ed] up [a]
box of computer paper, put it in [a] cart, and took it . . . to
the cashier." Although claimant then experienced no pain, she
recalled a "pull" in her "shoulder area," followed by "stiffness"
and "serious pain" several hours later. Claimant was
subsequently treated by Dr. Hallett H. Mathews, an orthopedist,
for "mechanical right shoulder motion pain."
In denying claimant's application for benefits, the deputy
commissioner concluded that she failed to prove "a single
identifiable incident that produced an obvious sudden mechanical
or structural change in the body." However, the full commission
reversed, awarding claimant temporary total disability benefits.
An "injury by accident" requires "(1) an identifiable
incident; (2) that occurs at some reasonably definite time; (3)
an obvious sudden mechanical or structural change in the body;
and (4) a causal connection between the incident and the bodily
change." Chesterfield County v. Dunn, 9 Va. App. 475, 476, 389
S.E.2d 180, 181 (1990). "[P]ain does not have to be
contemporaneous with the accident to be an injury by accident."
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Ratliff v. Rocco Farm Foods, 16 Va. App. 234, 239, 429 S.E.2d 39,
42 (1993). "The actual determination of causation is a factual
finding that will not be disturbed on appeal," if supported by
credible evidence. Ingersoll-Rand Co. v. Musick, 7 Va. App. 684,
688, 376 S.E.2d 814, 817 (1989); see Code § 65.2-706.
Here, claimant testified that lifting the computer paper
"pulled [her] shoulder area," and medical records relate
"pick[ing] up box of computer paper" as relevant history of the
disputed injury. Moreover, as the commission noted, "[t]here is
no evidence of any shoulder problems prior to this 'pulling'
incident," and the attendant circumstances were consistent with
the medical findings. Such evidence, together with the entire
1
record, provides sufficient support for the commission's
conclusion that claimant suffered a compensable injury by
accident.
Employer's argument that Massie v. Firmstone, 134 Va. 450,
114 S.E. 652 (1922), precludes benefits because claimant was
unable to "identify a single incident" which precipitated her
injury is without merit. Massie instructs that a party cannot
"ask [the fact finder] to believe that he has not told the truth"
in furtherance of his cause, id. at 462, 114 S.E. at 656, and,
therefore, is "bound by his unequivocal testimony at trial."
1
Employer correctly asserts that the "accident/injury
report" and claimant's "affidavit" were not properly before the
commission on review, and, consequently, not before this Court on
appeal. See Rule 3.3 of the Workers' Compensation Commission.
However, there is no indication that the commission considered
such evidence in its disposition of the claim.
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McMurphy Coal Co. v. Miller, 20 Va. App. 57, 59, 455 S.E.2d 265,
266 (1995). Claimant's testimony simply described the
circumstances of her injury, thereby providing evidence to be
considered by the commission in assessing the claim. Under such
circumstances, her testimony neither limited nor diminished other
evidence in support of the claim.
Accordingly, we affirm the decision of the commission.
Affirmed.
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