The Washington Post v. Richard E. Bush ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and
Bumgardner
Argued at Alexandria, Virginia
THE WASHINGTON POST
MEMORANDUM OPINION * BY
v. Record No. 1653-97-4 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 17, 1998
RICHARD E. BUSH
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Glenn S. Phelps (Joshua M. Wulf; Midkiff &
Hiner, P.C., on brief), for appellant.
James F. Green (Ashcraft & Gerel, on brief),
for appellee.
The appellant, The Washington Post, claims on appeal that
the Workers' Compensation Commission erred in finding that
claimant, Richard E. Bush, was entitled to compensation under the
Act on the ground that he suffered an injury by accident.
Appellant specifically claims the commission erred in reversing
the credibility determination of the deputy commissioner, who had
denied claimant benefits. Finding no error, we affirm.
The facts reported here are set forth in the light most
favorable to the claimant, the party who prevailed below. White
Elec. Co. v. Bak, 22 Va. App. 17, 19, 467 S.E.2d 827, 828 (1996)
(citing Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App.
503, 504, 339 S.E.2d 916, 916 (1986)). Claimant worked for
appellant as a mail room helper; his duties involved driving a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
forklift to lift and move skids of products to and from a machine
known as a collator. On April 3, 1996, claimant sustained an
injury at his place of employment, after performing these duties
all morning prior to the alleged incident. The issue in
contention is whether, as employer contends, claimant failed to
prove an identifiable incident or sudden precipitating event.
Employer points to the following testimony in support of its
contention. On April 8, 1996, claimant saw Dr. Robert P.
Nirschl, an orthopedic surgeon, whose notes contain no reference
to any incident on April 3, 1996. Similarly, claimant complained
neither to the health center supervisor at the Washington Post's
Springfield plant on April 9, 1996, nor to the claims
representative for the Post, with whom claimant met on May 1,
1996.
Bush testified, however, that as he threw an empty skid,
weighing approximately 35 to 45 pounds, onto another pile of
skids and then climbed back onto the forklift, he felt a "sharp
pain" in his left shoulder around 11:00 a.m. or 11:30 a.m.
Claimant continued to work at his remaining duties that day, and
approximately a week later sought treatment with Dr. Nirschl who
found "a bit of weakness and tenderness over the cuff [of the
left shoulder] anteriorly." A subsequent arthrogram disclosed a
small tear in the left rotator cuff area. Claimant had earlier
surgery on his left shoulder in November of 1994 and had not
complained of shoulder pain since the surgery. On July 22, 1996,
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Dr. Nirschl gave claimant a 15% impairment rating on his left
shoulder and stated, "In my view, the October 1994 episode is a
background problem and there is probably some aggravation on
4/3/96."
In her opinion of October 25, 1996, the deputy commissioner
found that Bush's evidence failed to establish an identifiable
incident on the date of the claimed injury, stating that
claimant's testimony about the onset of symptoms was inconsistent
with a statement in his deposition and his recorded statement.
The commission reversed, finding:
The absence of a history in the initial
medical reports establishes nothing. The
history recorded by the employer of "lifting
skids and products," and the claimant's
statement that he was removing the skids from
the front of the forklift and tossing or
pitching them to a nearby stack are not
necessarily inconsistent. The record is
clear that the pain onset occurred while the
skids were being moved, or immediately
thereafter.
Employer argues the commission improperly reversed the
deputy commissioner's credibility finding. The commission's
findings of fact are binding on appeal if supported by credible
evidence. Roanoke Belt, Inc. v. Mroczkowski, 20 Va. App. 60, 67,
455 S.E.2d 267, 270 (1995) (citing, inter alia, Code § 65.2-706).
Even assuming the deputy commissioner's decision is premised on
a credibility determination, the record fails to establish that
the commission's rejection of the credibility findings by the
deputy commissioner was arbitrary. Turcios v. Holiday Inn Fair
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Oaks, 24 Va. App. 509, 516, 483 S.E.2d 502, 505 (1997).
Contrary to employer's argument, claimant's testimony is not
internally inconsistent when viewed in context. Each of
claimant's statements regarding the accident relates that, in the
course of moving skids with a forklift, claimant was required to
dismount from the forklift to move an empty skid. Claimant
picked up the empty skid, threw it on a pile of other skids, and
noticed a sharp pain in his left arm. The only inconsistency is
whether claimant first noticed the pain before, or after, he
remounted the forklift. The commission could properly conclude
that this minor inconsistency did not destroy claimant's
credibility.
Our review of the record also shows there is evidence to
support the commission's conclusion that the claimant's testimony
established an identifiable incident which caused his injury.
Claimant testified that his injury occurred as he lifted an empty
skid and threw it onto a pile of other skids. In short, the
commission's view of the evidence is fully supported by the
record. For these reasons, we affirm.
Affirmed.
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