Pence Nissan Oldsmobile v. Darryl D. Oliver ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
PENCE NISSAN OLDSMOBILE
AND
MERCHANTS OF VIRGINIA GROUP
SELF INSURANCE ASSOCIATION MEMORANDUM OPINION *
PER CURIAM
v. Record No. 1779-95-2 JANUARY 23, 1996
DARRYL D. OLIVER, SR.
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Rodney A. Satterwhite; McGuire, Woods, Battle &
Boothe, on briefs), for appellants.
(Louis D. Snesil; McDonald & Snesil, on brief), for
appellee.
Pence Nissan Oldsmobile and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Darryl D. Oliver,
Sr. ("claimant") sustained an injury by accident arising out of
and in the course of his employment on November 13, 1992.
Employer argues that the commission failed to follow this Court's
ruling in Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314, 456
S.E.2d 541 (1995), by not adequately considering conflicting
medical histories in determining whether claimant met his burden
of proof on remand. 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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
5A:27.
In finding that claimant proved an injury by accident
arising out of and in the course of his employment, the
commission stated the following:
Having considered these [medical]
histories, we reach the same result as set
forth in our prior Opinion of July 7, 1994.
The claimant clearly had a preexisting low
back injury. In addition, he suffers from a
degenerative condition in his spine which has
been evident for some 20 years. At the same
time, the claimant has clearly described a
low back injury occurring at a specific time
and place while lifting an engine block on
November 13, 1992. The medical histories,
commencing with the first date of treatment,
make reference to a back injury while lifting
heavy objects or moving a heavy engine block,
as noted above. These histories are
consistent with the claimant's testimony, and
upon this finding, we RE-AFFIRM our Opinion
of July 7, 1994.
"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). Claimant's undisputed testimony provides
credible evidence to support the commission's finding. Thus,
that finding is conclusive on this appeal. James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989).
In rendering its decision, the commission considered the
medical histories and claimant's recorded statement, and resolved
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any conflicts in this evidence in favor of claimant. "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 the credibility of the
witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890,
894, 407 S.E.2d 32, 35 (1991). "The fact that there is contrary
evidence in the record is of no consequence if there is credible
evidence to support the commission's finding." Id.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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