Safelite Glass Corp. v. Ricky Lynn Campbell ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
SAFELITE GLASS CORPORATION
AND
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
v. Record No. 1864-95-3 MEMORANDUM OPINION *
PER CURIAM
RICKY LYNN CAMPBELL JANUARY 23, 1996
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Robert M. McAdam; Wooten & Hart, on brief), for
appellants.
(Rhonda L. Overstreet; Lumsden & Overstreet, on
brief), for appellee.
Safelite Glass Corporation and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that (1) Ricky Lynn
Campbell's ("claimant") testimony concerning his July 24, 1994
injury by accident was credible; and (2) claimant's herniated
disc at L4-L5 was caused by his July 24, 1994 injury by accident.
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.
I. Credibility
Employer argues that the commission should have disregarded
claimant's testimony on the grounds that (1) he described a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
violent single truck accident, which is not corroborated by the
physical evidence and witnesses' testimony; (2) he told Dr.
Robert S. Widmeyer, his treating orthopedic surgeon, that he had
not suffered from back pain before the July 27, 1994 accident,
yet he testified that he suffered from back pain intermittently
after his 1991 surgery and before July 27, 1994; and (3) he
exaggerated his job requirements to Dr. Widmeyer by
characterizing them as "heavy work," when he actually spent the
majority of his work time driving a delivery truck.
In weighing claimant's credibility and in rendering its
decision, the commission took these discrepancies into account.
However, the commission disregarded these discrepancies in light
of the opinion of Dr. James M. Vascik, the treating neurosurgeon,
who opined that claimant would have at least been severely
limited in his physical functions had the disc been herniated
before the accident. There was no evidence that claimant's
physical functions were severely limited before the accident.
Although he complained of back pain before the accident, claimant
was able to work and did not appear to be in distress. From this
evidence, the commission could reasonably conclude that Dr.
Vascik's opinion constituted the most persuasive evidence of when
claimant herniated the disc.
"In determining whether credible evidence exists, the
appellate court does not retry the facts, reweigh the
preponderance of the evidence, or make its own determination of
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the credibility of the witnesses." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). 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). Based
upon this record, we cannot say that the commission erred in
finding that claimant was credible.
II. Causation
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). "The
actual determination of causation is a factual finding that will
not be disturbed on appeal if there is credible evidence to
support the finding." Ingersoll-Rand Co. v. Musick, 7 Va. App.
684, 688, 376 S.E.2d 814, 817 (1989).
In awarding compensation benefits to claimant, the
commission found as follows:
This case turns, in part, on the extent
of claimant's low back complaints on and
before July 27, 1994, and prior to the
automobile accident that evening. Two
witnesses testified that he made extensive
complaints of low back pain but that he was
in no obvious distress. This evidence was
not rebutted, as noted above. In this
regard, we are impressed with Dr. Vascik's
report that, if the claimant's disc had been
herniated at that time, to the extent which
was found on MRI after the accident, it would
have been extremely difficult for him to
function. We find this to be the persuasive
evidence that the actual herniation was
caused by the automobile accident. In so
holding, we note that the claimant has
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minimized or denied back pain prior to the
industrial accident and apparently going back
to 1991 when he underwent back surgery. At
the same time, he may have overstated the
physical effort required by his work in an
effort to minimize his preexisting back
condition and certainly overstated the extent
of the accident. However, in the final
analysis, all of this notwithstanding, Dr.
Vascik reported that the claimant would have
at least been severely limited in his
physical functions had the disc been
herniated prior to the industrial accident.
Finding this most persuasive, the Opinion
appealed from is AFFIRMED . . . .
In its role as fact finder, the commission was entitled to
weigh the evidence and to accept Dr. Vascik's opinions.
Claimant's testimony, along with Dr. Vascik's opinions,
constitute credible evidence to support the commission's
decision. Based upon this evidence, the commission could
reasonably infer that claimant's injury by accident on July 27,
1994 caused his herniated disc and resulting disability. "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).
For the reasons stated, we affirm the commission's decision.
Affirmed.
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