COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Senior Judge Hodges
Argued at Norfolk, Virginia
KENNETH W. ZERBE
MEMORANDUM OPINION *
v. Record No. 1081-94-1 BY JUDGE JOSEPH E. BAKER
MAY 30, 1995
KENKEV COMPANY and
EMPLOYERS INSURANCE OF WAUSAU
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Jill Roseland (Carlton F. Bennett; Bennett
and Zydron, P.C., on brief), for appellant.
Fay F. Spence (Gaidies, Young & Spence, on
brief), for appellees.
Kenneth W. Zerbe (claimant) contends that the Workers'
Compensation Commission (commission) erred in disregarding the
deputy commissioner's credibility determination and in finding
that claimant failed to prove that his herniated disc was caused
by an identifiable incident which precipitated a sudden
mechanical change in his body. Finding no error, we affirm the
commission's decision.
At the evidentiary hearing, claimant testified that at 10:00
a.m. on April 12, 1993, while he was in the process of digging
thirty-two post holes, he experienced a sharp pain in his lower
back as he plunged the post-hole digger into the thirteenth or
fourteenth hole. However, in a recorded statement given by
claimant to employer's insurance carrier shortly after the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
incident, claimant did not provide any description of a specific
identifiable incident. Rather, he stated that he experienced low
back pain while digging post holes on April 12, 1993, and
performing additional work on April 13 and 14, 1993. Contrary to
claimant's assertion at the hearing, there is nothing in the
recorded statement to indicate that claimant was impaired by
medication, that he did not understand the questions, or that he
was unable to give coherent answers. Moreover, the insurance
adjuster testified that claimant did not sound impaired when he
gave the recorded statement.
The deputy commissioner's finding that claimant proved a
compensable injury by accident was based upon the substance of
claimant's hearing testimony and the contents of the medical
records, rather than upon claimant's demeanor or appearance.
Accordingly, the credibility issue was as determinable by the
full commission as it was by the deputy. Goodyear Tire & Rubber
Co. v. Pierce, 5 Va. App. 374, 383, 363 S.E.2d 433, 438 (1987);
see also Kroger Co. v. Morris, 14 Va. App. 233, 236, 415 S.E.2d
879, 880-81 (1992).
On appellate review, we construe the evidence in the light
most favorable to the party prevailing before the commission.
R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390
S.E.2d 788, 788 (1990). "In order to carry his burden of proving
an 'injury by accident,' a claimant must prove that the cause of
his injury was an identifiable incident or sudden precipitating
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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). "Factual findings of the
commission are binding on appeal. Code § 65.1-98 [now Code
§ 65.2-706]. [Only] if no credible evidence exists in support of
a factual finding, [will] the issue of sufficiency of the
evidence [be] one of law for this Court to decide." Spruill v.
C.W. Wright Const. Co., 8 Va. App. 330, 333, 381 S.E.2d 359, 360
(1989). Unless we can say as a matter of law that claimant's
evidence sustained his burden of proof, the commission's finding
is binding and conclusive upon us. Tomko v. Michael's Plastering
Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Claimant received medical treatment for his back pain from
Patient First and Dr. Colin Hamilton, an orthopedic surgeon.
Their medical records do not reflect that claimant mentioned a
specific identifiable incident. Rather, the records merely refer
to claimant's symptoms commencing after digging post holes.
The commission was entitled to determine credibility and to
give little weight to claimant's hearing testimony, which was
inconsistent with his recorded statement and the medical records.
Based upon claimant's recorded statement and the medical
records, we cannot say as a matter of law that his evidence
sustained his burden of proving a specific identifiable incident
as required under the Workers' Compensation Act. Thus, the
commission did not err in denying him compensation.
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For these reasons, we affirm the commission's decision.
Affirmed.
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BENTON, J., dissenting.
At the evidentiary hearing Zerbe appeared pro se and
testified in response to the deputy commissioner's questioning as
follows:
Q: And can you tell us if anything unusual
happened that day?
A: Yes, ma'am. I was digging some post
holes and about the thirteenth or fourteenth
hole, while I was thrusting the post hole
diggers into the ground, I experienced a
sharp pain in my lower back. At that time I
thought it was a pinched nerve. I took a
small break and walked over and took a few
sips of my drink, stretched a little bit, and
tried to stretch it out.
Q: About what time was this, sir?
A: This was, to the best of my recollection,
around 10 o'clock in the morning.
Q: All right.
A: Realizing that I was the only one there,
and had to get these things done, I tried to
continue on.
The employer's attorney sought to impeach Zerbe by
questioning him concerning the statements Zerbe had made to the
employer's insurance agent on the telephone. In response to her
questioning, Zerbe continued his testimony as follows:
Q: Mr. Zerbe, how many holes did you do
during the day on April 12th?
A: Thirty-two.
* * * * * * *
Q: And do you recall speaking with [the
insurance agent] on May the 20th about your
case?
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A: Yes, I do.
Q: And do you remember him asking you if
there was any particular hole that the pain
started on?
A: Yes, ma'am, I do.
Q: And isn't it true that you told him that
there was no particular hole, that it was
from digging all the holes?
A: No, ma'am. I told him I couldn't
possibly remember exactly which hole it was.
Q: Didn't you tell him that it was a gradual
thing that developed as you dug all the holes
and you could feel it as you would go into
the post holes?
A: I don't know if that's exactly what I
told him. At that point in time you have to
understand I was -- had no idea that this
claim could possibly be turned down from it
not being a particular accident. I thought
he was investigating me to find out whether
or not I actually was hurt on the job. Okay.
I didn't know I had to specify exactly which
hole. I didn't know that I had to do all of
that. So, I told him that halfway through I
was in pain. I had experienced pain and had
to keep digging these holes and it got worse
as I went.
Indeed, the transcript of the telephone interview reflects
that during the course of the telephone interview, in which the
agent made inquiries suggesting that the pain occurred at an
imprecise time, Zerbe stated:
Ah, I can't really pinpoint a certain hole,
you know, I felt it when I was jamming the
post hole diggers down into the hole, I could
feel it, but I can't tell you ah, any one
certain hole that I really felt it on.
Thus, in both his recorded statement to the insurance agent and
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his testimony at the evidentiary hearing, Zerbe testified that
when he was "about halfway through" he injured his back while
pushing the post hole digger "into the hole."
After he was informed that he had to more precisely identify
the hole, Zerbe testified at the evidentiary hearing that it was
the "thirteenth or fourteenth hole." Zerbe explained during his
testimony at the evidentiary hearing that he sought to more
precisely identify the particular hole when he was told after his
recorded statement that he had to specify a particular hole. He
also testified that he believed the insurance agent was concerned
about "whether or not [he] actually was hurt" and not whether he
could precisely identify the precise hole.
The commission's findings that Zerbe's recorded statement
"contains no description of an accident" is not supported by
credible evidence. Zerbe's statement that he was injured "when
. . . [he] was jamming the post hole diggers down into the hole"
is precisely an event that proves an "identifiable incident."
See Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865
(1989).
Furthermore, the deputy commissioner was the fact finder who
was able to observe Zerbe's demeanor when Zerbe testified and
explained the basis of his response during the telephone
interview. The commission's finding that it found from the
recorded statement no indication that Zerbe was injured as a
result of "any particular activity at any particular time" is
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both plainly wrong and made in contravention of Goodyear Tire and
Rubber Co. v. Pierce, 5 Va. App. 374, 363 S.E.2d 433 (1987).
Without any adequate basis, the commission has disregarded the
deputy commissioner's assessment of Zerbe's testimony and
explanation for his inability to specify the particular hole in
the recorded statement. Moreover, Zerbe's recorded statement and
his testimony are both consistent in the assertion that Zerbe was
injured when he jammed the digger into one of the holes. His
diligence in completing the work while in pain does not convert
his injury by accident to an injury caused by repetitive trauma.
For these reasons, I would reverse the commission's denial
of an award to Zerbe.
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Kenneth W. Zerbe v. Kenkev Company
Combined Opinion