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Dynair C.F.E. Services Inc. v. Rempas11/14/1995
MEMORANDUM OPINION BY JUDGE JOSEPH E. BAKER
In this appeal from a decision of the Workers' Compensation Commission (commission), Dynair C.F.E. Services, Inc. (employer) contends that Perry L. Rempas (claimant) failed to prove a compensable injury by accident and, therefore, the commission erred when it found that claimant was entitled to compensation benefits. Employer also asserts that the commission erroneously disregarded "medical histories of how the injury occurred." Finding no error, we affirm the decision of the commission.
An examination of the record discloses that on May 31, 1994, employer filed its First Report of Accident which contains the following:
Date of injury 3-25-94
Nature and Cause of Accident lifting mail
How injury occurred unknown, employee complained of back pain
Nature of injury back injury
Physician Dr. Neff
On June 27, 1994, claimant filed a claim for benefits stating he was injured on March 25, 1994 at a time that he "was lifting a bag of mail when he felt a sharp pain in his back." Request for a hearing was made by claimant's counsel. The request was granted and a hearing was held before a deputy commissioner on September 7, 1994.
The deputy commissioner's opinion related that claimant "recalled that he felt a sharp pain in his back as he loaded the bags into the plane." The deputy's opinion further stated:
In his deposition, [claimant] was not able to specify whether he was outside the plane or inside of it and, at one point, could not remember where he was working when he first felt the back pain. [Claimant] could not give a clear explanation for this difference between his deposition and hearing testimony. [Claimant] also gave a recorded statement to the carrier on April 21, 1994 in which he said that he hurt his back "lifting some bags and stuff." In both the statement and the deposition, [claimant] consistently stated that his back started hurting "all of a sudden."
The opinion also included a quote from Dr. Neff's first visit note:
[Claimant] noted back pain at work approximately two weeks ago, on March 31, 1994. The patient loads airplanes, which includes pulling and pushing all day at work. There was no specific trauma, but he did note low back discomfort while at work.
Dr. Neff ordered an MRI and an EMG. The deputy's opinion further discloses that:
[Claimant] underwent the EMG on April 26, 1994. Rick Nielsen, who conducted the test, recorded a history from [claimant] and noted that [claimant's] problems "started without specific incidence of accident, injury, or trauma." The EMG revealed the possibility of an L5-S1 nerve root compromise.
The deputy concluded that claimant had not proved that he suffered an injury by accident as defined by Code ยง 65.2-101 because claimant could not identify the specific action he was performing when he was injured. He added that he found that claimant's testimony at the hearing was not sufficiently credible to "overlook" discrepancies between claimant's testimony and the medical records from claimant's treating physician that "contradict" claimant's testimony. The deputy added that claimant's testimony, even if credible, would not meet his burden of proof.
On appeal, the full commission reviewed the record and disagreed with the deputy's Conclusion. In its opinion, the commission noted that claimant testified "he experienced a sudden, disabling low back pain while lifting a specific bag of mail." As noted by the commission, there was other evidence supporting claimant's testimony that he experienced
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