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Dominion Water Inc. v. Duncan2/25/1997
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 claimant's demeanor or appearance related to the deputy commissioner's credibility determination. The deputy commissioner merely concluded from the evidence before him that claimant was not credible. "Absent a specific, recorded observation regarding the behavior, demeanor or appearance of [the witness], the commission had no duty to explain its reasons for . . . [accepting claimant's version of events]." Id. With respect to Larry King's testimony, the commission sufficiently articulated its reasons for disagreeing with the deputy commissioner's determination that King was not credible.
II.
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.2d 205, 208 (1991). Claimant testified that on June 20, 1995, while dragging mud and rocks brought up by a drill, he stepped into a hole approximately thirty inches deep and twenty inches in diameter, causing him to twist and catch himself as he fell towards the ground. He initially felt a tingling sensation in his lower back and left leg, and then felt back and leg pain that evening. When he completed his work on June 20, 1995, claimant told his supervisor, Mike Downey, that he thought he had hurt his back. James Ball, claimant's co-worker corroborated claimant's testimony concerning the incident. Downey acknowledged that claimant told him that he stepped in a hole and twisted his knee around June 20, 1995.
Claimant first sought medical attention on July 17, 1995 from Dr. Favareau. Claimant contended that he told Dr. Favareau about the June 20, 1995 incident and could not explain why Dr. Favareau did not record it in his initial history. On July 21, 1995, claimant began treating with Dr. Renas, a chiropractor. Claimant gave Dr. Renas a history of back and leg pain resulting from a work-related fall into a hole on June 20, 1995. In his Attending Physician's Report dated November 9, 1995, Dr. Renas opined that claimant's back condition and resulting disability were caused by the June 20, 1995 work-related fall. Dr. Renas opined that claimant had been totally disabled as a result of the June 20, 1995 incident since July 20, 1995. The medical records also showed that claimant had received chiropractic treatment for back problems prior to June 20, 1995. He received three treatments in 1989, one in 1991, one in 1993 and one in 1994. The last treatment prior to June 20, 1995 occurred on May 28, 1994. Claimant's pre-June 20, 1995 back problems never prevented him from working.
Based upon the testimony of claimant and Ball, and Dr. Renas's medical records, we find that credible evidence supports the commission's decision that claimant proved he sustained a back injury causally related to a June 20, 1995 injury by accident. "Although contrary evidence may exist in the record, findings of fact made by the commission will be upheld on appeal when supported by credible evidence." Bullion, 14 Va. App. at 730, 418 S.E.2d at 907.
For these reasons, we affirm the commission's decision.
Affirmed.
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