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Hardees of Charlottesville 3 and Boddie Noell Enterprises Inc. v. Crawford11/10/1997
MEMORANDUM OPINION *fn*
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Hardees of Charlottesville #3 and Boddie Noell Enterprises, Inc. (employer) contend that the Workers' Compensation Commission erred in reversing the deputy commissioner's credibility determination and finding that Brenda Lee Crawford (claimant) proved that she sustained an injury by accident arising out of and in the course of her employment on October 31, 1994. 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. See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "In order to carry burden of proving an 'injury by accident,' a claimant must prove that the cause of 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 October 31, 1994. The deputy commissioner based his Conclusion upon the inconsistencies between the Time Clock Activity Report and the testimony of claimant and Lucy Snow (formerly Tilson), employer's assistant manager at the time of the alleged accident.
The commission reversed the deputy commissioner and accepted claimant's testimony regarding the October 31, 1994 accident. In so ruling, the commission found that claimant testified that she immediately reported the accident to her manager, Maurice Bartley. The commission also considered the medical records, which consistently corroborated claimant's testimony regarding the accident and her continuing pain. The commission "recognize the various inconsistencies evinced by the witnesses' testimony particularly regarding the time of the incident. However, [it was] more persuaded that the details of the incident faded in the minds of the witnesses over two years, rather than that the claimant and witnesses fabricated the incident." Employer contends that the 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 her 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. Although the deputy commissioner ambiguously referred to Snow's paus
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