COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
MCR PROPERTY MANAGEMENT, INC.
AND
ERIE INSURANCE EXCHANGE
MEMORANDUM OPINION *
v. Record No. 0229-95-3 PER CURIAM
JULY 18, 1995
MICHAEL W. SLAGLE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Monica L. Taylor; Ronnie L. Clay; Gentry, Locke,
Rakes & Moore, on briefs), for appellants.
(H. Keith Moore; Mark K. Cathey; Cranwell & Moore, on
brief), for appellee.
MCR Property Management, Inc. and Erie Insurance Exchange
(hereinafter collectively referred to as "MCR") contend that the
Workers' Compensation Commission erred in reversing the deputy
commissioner's credibility determination and finding that (1)
Michael W. Slagle proved that he sustained an injury by accident
arising out of and in the course of his employment on July 23,
1993; and (2) Slagle's herniated disc was caused by the July 23,
1993 injury by accident. 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 before the commission. R.G. Moore Bldg.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). 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).
Slagle, a maintenance worker employed by MCR, testified
that, on Friday, July 23, 1993, he unbolted a toilet and, as he
began to lift it, he experienced back pain so severe that he fell
to his knees. Slagle reported his back pain to his supervisor at
the end of his shift. Slagle had a prior back strain in 1991.
That strain resolved after one week.
James Powers, Slagle's supervisor, testified that, on the
evening of July 23, 1993, Slagle told him that his back was
bothering him and he needed a few days off to go to the doctor.
Powers testified that Slagle did not tell him about the specific
incident of lifting a toilet.
On August 17, 1993, Slagle provided a written statement to
Jeannie Stosser, the owner of MCR, in which he related that
"[d]uring the course of renovating the apartments at Draper's
Meadow, while moving stoves, refrigerators, countertops, and
pulling up toilets, I have injured my back."
On June 26, 1993, Dr. C.L. Boatwright diagnosed an acute low
back strain. Slagle gave Dr. Boatwright a history of "[o]ver the
course of the day I was moving and lifting. The next day my low
back hurt." Slagle was put on bedrest over the next few weeks;
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however, his symptoms did not subside. A CT scan revealed a
herniated disc.
On August 19, 1993, Slagle underwent surgery for his
herniated disc. Dr. Ward Stevens, the neurosurgeon, related a
history of "doing a great deal of heavy lifting about three weeks
ago while at work and developing a great deal of low back and
shortly thereafter right leg pain, numbness and weakness." Dr.
Stevens indicated that Slagle told him he injured his back while
working on a Friday. Dr. Stevens opined that "[i]t is my medical
opinion within a reasonable degree of medical certainty that Mr.
Slagle's disc herniation occurred with his initial injury."
The deputy commissioner found that Slagle's testimony was
impeached by the failure of the medical reports to indicate that
the disc rupture occurred while he was lifting a toilet, by
Slagle's failure to tell his employer of a specific incident, and
by Slagle's written statement that he lifted toilets and other
appliances. The full commission reversed the deputy's
determination, and found that
[t]he claimant indicated that his back became
sore through lifting over a period of time.
However, this does not negate the occurrence
of a specific incident which occurred on
Friday, July 23, 1993, while lifting one
toilet. Dr. Stevens states that the disc
herniation was the result of a single
"initial incident." It comports with human
experience that the claimant would describe
the general activities which caused soreness
in his back, and such a general description
does not impeach his testimony of an acute
incident which brought him to his knees and
produced a sudden mechanical change, i.e.
disc herniation.
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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).
Slagle's testimony provides credible evidence to support the
commission's finding that he sustained an injury by accident
arising out of and in the course of his employment. The deputy
commissioner's determination that Slagle's assertion of an injury
by accident was not credible was based on the evidence and the
substance of Slagle's testimony. Therefore, the full commission
could make its own credibility determination. Id. The medical
histories provided by Slagle to his physicians do not necessarily
contradict his testimony. In addition, these histories are
consistent with Dr. Stevens' opinion that Slagle could first have
a sore back, which would later develop into leg pain, thus
indicating a herniated disc.
The commission could have reasonably inferred from Slagle's
testimony and Dr. Stevens' opinion that Slagle sustained an
identifiable incident on July 23, 1993 which caused an obvious
sudden mechanical or structural change in his body. "Where
reasonable inferences may be drawn from the evidence in support
of the commission's factual findings, they will not be disturbed
by this Court on appeal." Hawks v. Henrico County Sch. Bd., 7
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Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).
For the reasons stated, we affirm the commission's decision.
Affirmed.
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