COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
VIRGINIA ANN REED
v. Record No. 2068-94-4 MEMORANDUM OPINION *
PER CURIAM
COLUMBIA CABLE MAY 9, 1995
AND
TWIN CITY FIRE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Kenneth D. Bynum; Koonz, McKenney, Johnson &
Depaolis, on brief), for appellant.
(Dawn E. Boyce; Lewis, Trichilo, Bancroft, McGavin &
Horvath, on brief), for appellees.
Virginia Ann Reed contends that the Workers' Compensation
Commission erred in (1) finding that she failed to prove that she
sustained an injury by accident arising out of and in the course
of her employment on March 26, 1993; and (2) relying upon
impermissible hearsay contained in medical records and a recorded
statement to contradict Reed's testimony. 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 party prevailing 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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
claimant must prove 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).
Unless we can say as a matter of law that Reed's evidence
sustained her burden of proof, the commission's findings are
binding and conclusive upon us. Tomko v. Michael's Plastering
Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Reed was employed by Columbia Cable ("employer") as a
service technician. In describing the back injury which she
alleged she sustained while digging a ditch in the course of her
employment on March 26, 1993, Reed testified that "when my foot
hit the shovel . . . I felt like I shocked my back or pulled and
I didn't know what, what it, what else to say it felt like, like
when you hit your elbow and you have a shock reaction." She
testified that she immediately reported the incident to her
supervisor, John Franklin, and that she told her co-workers at
that time that she hurt her back digging. She also stated that
she told her orthopedic surgeon, Dr. Andre Eglevsky, Jr., and her
physical therapist how she hurt herself.
Franklin denied that Reed initially reported an accident or
a sudden incident of pain to him. Franklin also stated that
Reed's co-workers did not corroborate her testimony that she told
them that she had hurt her back, nor did they notice that she was
in any pain. Scott Weber, a supervisor, stated that he observed
2
Reed on April 2, 1993 limping and in pain. He testified that
Reed denied that she had sustained an accident, instead she
stated that her injury occurred over a period of time. In an
April 13, 1993 recorded statement taken by employer's insurance
adjuster, when Reed was asked whether the injury occurred at a
specific time or whether she gradually felt pain, she responded
that "it was like gradual." Finally, the initial medical history
given by Reed to Dr. Eglevsky reflected that she felt low back
pain after "doing a lot of shoveling Friday and Saturday." The
initial history noted by the physical therapist stated that Reed
injured "her back on March 26, 1993 after digging all day."
These medical histories do not corroborate claimant's hearing
testimony describing a specific incident.
In holding that Reed failed to prove an injury by accident,
the commission found that Reed's evidence failed to prove that
her injury was precipitated by an accidental event such as she
described at the hearing.
Based upon the inconsistencies between Reed's hearing
testimony, the initial medical histories, the testimony of Reed's
supervisors, and Reed's recorded statement, we cannot say as a
matter of law that the commission erred in finding that Reed's
evidence was insufficient to prove a compensable injury by
accident.
We find no merit in Reed's contention that the commission
improperly relied upon medical reports and the recorded statement
3
to determine how the accident happened. The commission is not
bound by common law rules of evidence. Piedmont Manuf. Co. v.
East, 17 Va. App. 499, 512-13, 438 S.E.2d 769, 777 (1993).
Furthermore, it is clear from the commission's opinion that it
considered the medical reports and the recorded statement as
impeachment of Reed's testimony.
For the reasons stated, we affirm the commission's decision.
Affirmed.
4