Drucker and Faulk, Inc. v. Raymond Earl Holt, Jr. ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
RAYMOND EARL HOLT, JR.
v. Record No. 2349-01-2
DRUCKER AND FAULK, INC. AND
MONGOMERY MUTUAL INSURANCE COMPANY MEMORANDUM OPINION* BY
JUDGE SAM W. COLEMAN III
APRIL 23, 2002
DRUCKER AND FAULK, INC. AND
MONTGOMERY MUTUAL INSURANCE COMPANY
v. Record No. 2456-01-2
RAYMOND EARL HOLT, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Louis D. Snesil (Louis D. Snesil, P.C., on
briefs), for Raymond Earl Holt, Jr.
Jimese Pendergraft Sherrill (Christine A.
McKee-Clark; Siciliano, Dyer, Ellis &
Boccarosse, on briefs), for Drucker and
Faulk, Inc. and Montgomery Mutual Insurance
Company.
Drucker and Faulk, Inc. and its insurer (hereinafter
referred to as "employer") appeal a decision of the Workers'
Compensation Commission awarding medical benefits to Raymond
Earl Holt, Jr. (claimant). Employer contends the commission
erred in finding that claimant proved he sustained a compensable
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
injury by accident to his right leg on June 16, 2000. On
cross-appeal, claimant contends the commission erred in finding
he failed to prove that his disabling headaches were causally
related to his June 16, 2000 injury by accident. Finding no
error, we affirm the commission's decisions.
I. Injury by Accident
"In order to carry [the] burden of proving an 'injury by
accident,' a claimant must prove that the cause of [the] 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). Factual findings made by the commission
will be upheld on appeal if supported by credible evidence. See
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989).
The commission ruled that claimant proved he sustained a
compensable injury by accident to his right leg, finding that
his evidence proved an identifiable incident while in the course
of his employment, on June 16, 2000, that caused or resulted in
a sudden mechanical or structural change to his body. In so
ruling, the commission found:
[T]he claimant felt a sting and noticed
blood on his ankle while in the course and
scope of his employment. We find that his
inability to prove what caused the puncture
marks on his right ankle is not dispositive
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of this matter. Although the claimant
cannot positively identify the source of the
sting or the cause of the wound, he has
presented sufficient evidence to causally
connect the wound with the employment.
While his physicians are unable to
definitively conclude that a snake bit him,
no physician disputes that the wound on his
right ankle was caused by a bite of some
sort. We find that as a maintenance
technician and grounds man, the claimant was
required to maintain and upkeep the area in
and around the employer's drainage ditch,
and therefore, the employment included the
risk of insect, rodent or snake bites.
The commission's factual findings are supported by credible
evidence, including claimant's testimony and the medical records
of Drs. H. Thompson Mann and James W. Brooks, Jr.
Claimant testified that while he was collecting trash from
a drainage ditch on June 16, 2000, he "noticed a little sting"
on his ankle. He looked down and saw blood, but did not see
what had caused his ankle to bleed. He saw fleas on his sock.
Claimant sought medical treatment four days later at Patient
First, where he reported he had been bitten by fleas.
On June 20, 2000, Dr. Mann treated claimant at the
St. Mary's Hospital emergency room. Dr. Mann reported that
claimant had brushed fleas from his lower extremities while
cleaning an apartment. Claimant also reported that he had
walked through grass that was above his ankles, and when he
walked away from that area, he felt a stinging sensation and saw
some blood on his ankle. Dr. Mann's examination showed two
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puncture wounds about one centimeter apart on claimant's lower
extremity. The area was mildly discolored, mildly swollen, and
tender. Although claimant stated that he did not see a snake,
Dr. Mann opined that most likely a snake had bitten claimant.
On June 26, 2000, Dr. Mann reported that the claimant "has what
looks like a snake bite (in Hospital last week) and he will be
out of work probably thru rest of this week."
On July 5, 2000, claimant saw Dr. Brooks, an infectious
disease specialist. Dr. Brooks also concluded that claimant's
history and the appearance of the wounds suggested a venomous
snakebite. Dr. Brooks later opined in a letter to Dr. Mann that
he believed claimant's symptoms were suggestive of a copperhead
snakebite.
Based upon this credible evidence, the commission, as fact
finder, could reasonably infer that claimant sustained a bite
from either an insect, rodent, or snake, while working for
employer on June 16, 2000, which caused the sudden mechanical or
structural change in his body - i.e. the puncture wound and
swelling. "Where reasonable inferences may be drawn from the
evidence in support of the commission's factual findings, they
will not be disturbed by this Court on appeal." Hawks v.
Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695,
698 (1988). As fact finder, the commission was entitled to
resolve any inconsistencies between claimant's testimony and his
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co-workers' testimony in favor of claimant. It is well settled
that credibility determinations are within the fact finder's
exclusive purview. Goodyear Tire & Rubber Co. v. Pierce, 5 Va.
App. 374, 381, 363 S.E.2d 433, 437 (1987).
II. Headaches
Here, on this issue, we also view the evidence in the light
most favorable to the prevailing party below, in this instance
the employer. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App.
211, 212, 390 S.E.2d 788, 788 (1990). Unless we can say as a
matter of law that claimant's evidence sustained his burden of
proving that his headaches were causally related to his
compensable injury by accident, the commission's findings are
binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Claimant relies upon Dr. Mann's office notes and Dr. J. Kim
Harris' opinion to support his argument that his disabling
headaches were causally related to his snakebite. Claimant
argues that the only disabling aspects of the injury were the
headaches and Dr. Mann's report of June 26, 2000, that claimant
would "be out of work probably thru rest of this week," was
sufficient to establish the causal relationship between the
snakebite and headaches. However, as the commission noted,
although Dr. Mann specifically attributed claimant's right leg
wound to the snakebite, he never stated or rendered an opinion
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that claimant's chronic, severe headaches were caused by the
snakebite or the right leg wound. In addition, although
Dr. Harris attributed claimant's headaches to the snakebite, he
did so based solely upon a temporal connection. Dr. Harris
admitted that he was not a snakebite expert. Furthermore,
because Dr. Harris did not treat claimant until almost three
months after the injury, he would not have had an opportunity to
view claimant's wound. Dr. Brooks opined, that even if a snake
had bitten claimant, headaches would be an unusual consequence.
The commission, as fact finder, was entitled to weigh all
of the medical evidence. It did so and concluded that claimant
failed to establish a causal relationship between his headaches
and his compensable injury. We do not reweigh the evidence.
Based upon this record, we cannot find as a matter of law that
claimant's evidence sustained his burden of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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