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Augusta Lumber & Supply Inc. v. Truslow6/24/1997
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
MEMORANDUM OPINION *
Augusta Lumber & Supply, Inc. and its insurer (hereinafter collectively referred to as "employer") contend that the Workers' Compensation Commission (commission) erred in reversing the deputy commissioner's credibility determination and finding that James F. Truslow (claimant) proved that he sustained an injury by accident arising out of and in the course of his employment on August 30, 1995. 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 below. 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 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).
The deputy commissioner was not persuaded that claimant sustained a work-related accident on August 30, 1995. The deputy commissioner based his Conclusion upon his findings that claimant worked for four days after the accident, he did not report the accident immediately, and he did not seek medical attention until four weeks after the accident.
The full commission reversed the deputy commissioner and held that claimant's testimony regarding the August 30, 1995 accident was credible. In so ruling, the commission found that claimant testified that he immediately reported the accident to his supervisor, Glen Harris, and later that day he reported the accident to another supervisor, Joe Peduto. The commission also considered the medical records in which claimant consistently reported a history of an accident on August 30, 1995 while loading lumber onto a trailer at work.
Employer contends that the full commission arbitrarily disregarded the deputy commissioner's credibility determination and failed to articulate a sufficient basis for its Conclusion. However, he principle set forth in [Goodyear Tire & Rubber Co. v.] Pierce[, 5 Va. App. 374, 383, 363 S.E.2d 433, 438 (1987),] does not make the deputy commissioner's credibility findings unreviewable by the commission. Rather, it merely requires the commission to articulate its reasons for reversing a specific credibility determination of the deputy commissioner when that determination is based upon a recorded observation of demeanor or appearance of a witness. In short, the rule in Pierce prevents the commission from arbitrarily disregarding an explicit credibility finding of the deputy commissioner. Bullion Hollow Enters., Inc. v. Lane, 14 Va. App. 725, 729, 418 S.E.2d 904, 907 (1992).
In this case, as in Bullion, upon a review of the deputy commissioner's decision, we do not find a "specific recorded observation" concerning any witness' demeanor or appearance related to a credibility determination. The deputy commissioner merely concluded from the evidence before him that claimant had not met his burden of proof. "Absent a specific, recorded observation regarding the behavior, demeanor or appearance of [the witnesses], the commission had no duty to explain its reasons for . . . [accepting claimant's version of events]." Id.
Moreover, when the commission's findings are supported by credible evidence, as in this case, those findings are conclusive and binding on appeal. Ross Laboratories v. Barbour, 13 Va. App. 373, 377-78, 412 S.E
Page 1 2 Virginia Personal Injury Attorneys
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