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Dominion Water Inc. v. Duncan2/25/1997
MEMORANDUM OPINION *
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Dominion Water, Inc. and its insurer (hereinafter collectively referred to as "employer") appeal a decision of the Workers' Compensation Commission (commission) awarding compensation benefits to Calvin Eugene Duncan (claimant). Employer contends that the commission erred in (1) reversing the deputy commissioner's determination that claimant and his co-worker, Larry King, were not credible; and (2) finding that claimant proved he sustained a back injury as the result of a June 20, 1995 injury by accident arising out of and in the course of his employment. Finding no error, we affirm.
I.
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 found that claimant did not prove he sustained an injury by accident arising out of and in the course of his employment on June 20, 1995. The deputy commissioner rejected claimant's testimony, finding that it conflicted with an August 29, 1995 letter written by claimant. In the letter, claimant described pain that arose from a combination of activities during the course of the entire day, including a fall into a hole. In addition, the deputy commissioner found that Dr. James E. Favareau's July 17, 1995 medical history of long-standing back pain conflicted with claimant's testimony relating a specific incident resulting in back pain. The deputy commissioner also took into account that claimant denied prior back complaints, although the medical records showed that he had undergone such treatment since 1989. Furthermore, the deputy commissioner noted that Larry King was not a credible witness based upon his demeanor, including his attempts to avoid answering questions, yawning, evasiveness, lack of respect, and an indifferent attitude.
The full commission reversed the deputy commissioner's finding and held that claimant proved he sustained a back injury as a result of stepping into a hole on June 20, 1995 in the course of his employment, resulting in total disability beginning July 20, 1995. In so ruling, the commission thoroughly reviewed King's testimony and disagreed with the deputy's characterization of it. The commission found no evidence in the record to show that King demonstrated a lack of respect or an indifferent attitude. Secondly, the commission accepted claimant's testimony, which it found to be corroborated by his co-workers' testimony. Finally, the commission found that Dr. William K. Renas' undisputed opinion established that the fall on June 20, 1995 caused claimant's back injury.
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
Page 1 2 Virginia Personal Injury Attorneys
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