Food Lion, Inc. v. Thomas E. Stretcher ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
FOOD LION, INC.
AND
ALEXSIS RISK MANAGEMENT
v. Record No. 1265-95-2 MEMORANDUM OPINION *
PER CURIAM
THOMAS E. STRETCHER NOVEMBER 14, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Cathie W. Howard; Williams & Pierce, on brief),
for appellants.
(Zenobia J. Peoples, on brief), for appellee.
Food Lion, Inc. and its insurer (hereinafter collectively
referred to as "employer") contend the Workers' Compensation
Commission erred in finding that Thomas Stretcher ("claimant")
proved that he sustained an injury by accident arising out of and
in the course of his employment on July 1, 1994. 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.
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). This
Court will uphold the commission's factual findings if supported
by credible evidence. James v. Capitol Steel Constr. Co., 8 Va.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
App. 512, 515, 382 S.E.2d 788, 788 (1990). "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).
Claimant testified that, on July 1, 1994, in the course of
his employment as an order selector at employer's distribution
center, he injured his back. In describing the accident,
claimant stated that he was "selecting" on aisle 16 when he went
into aisle 16(2), slot 32, to retrieve two cases of soft drinks.
As he did this, he stepped on a pallet on the floor. The pallet
broke, and he almost fell as he held the two cases of soft
drinks.
Claimant stated that he tried to tell Alan Carmichael, lead
shipping supervisor, that he hurt his back on aisle 16(2).
Carmichael responded by telling claimant that there was nothing
wrong with him. While claimant continued to pull orders, he
complained several more times to Carmichael about his back.
Claimant was out of work for five days following the incident.
He called in each day and told Keith Johnson, the lead person on
grocery shipping, that he had hurt his back at work. Carmichael
and Johnson denied that claimant reported the accident to them
when it happened or during the following five days.
Michael Mauger, a grocery shipping supervisor, testified
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that claimant did not report the July 1, 1994 injury to him until
July 15, 1994. Mauger denied that claimant told him about
falling through a pallet. He asserted that claimant told him
only that he hurt his back pulling on aisle 16(0). Claimant was
not sure whether he told Mauger of the pallet incident before
July 15, 1994.
Christopher Brown, claimant's former coworker, testified
that claimant told him on the night of June 30-July 1 that he had
hurt his back in aisle 16(2) when he stepped on a pallet.
Sterling Royal, another coworker, testified that claimant told
him on the night of June 30-July 1, that he had hurt his back.
On that same night, Royal also heard claimant tell Carmichael
that he had hurt his back in aisle 16(2).
Robin Wood, a shipping clerk, recalled that claimant told
her "he was hurt or hurting" on the night of the alleged
accident. However, she thought he was joking and she told him to
go back to work.
Claimant was examined at the John Randolph Hospital
emergency room on July 20, 1994 for back and leg pain, with
increasing leg, knee, and right groin pain after standing. The
emergency room report contains an accident date of July 14, 1994,
but does not reflect the pallet incident described by claimant.
On July 21, 1994, Dr. David Compton recorded a history of an
accident consistent with claimant's testimony. An MRI revealed
that claimant had sustained a herniated disc at the L5-S1 level.
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On August 3, 1994, Dr. Michael Kyles, an orthopedist,
examined claimant on a referral from Dr. Compton. He noted an
episode of "torsional force" at work on June 30, 1994.
Based upon this record, the commission found that claimant
met his burden of proving an injury by accident arising out of
and in the course of his employment. In so ruling, the
commission found as follows:
After careful Review of the entire
record, we agree with what is essentially a
credibility finding by the Deputy
Commissioner. The record supports the Deputy
Commissioner's decision. The testimony
established that pallets were in aisle 16
(2), and that the claimant reported his back
was hurting to several people. Robin Wood's
testimony supported the claimant [sic]
assertion that his complaints were not taken
seriously the night of June 30-July 1.
Moreover, while the emergency room report
contains no history of injury, Dr. Compton
and Dr. Kyles subsequently reported a history
corroborative of the claimant's testimony.
The medical evidence taken as a whole
supports the finding that claimant sustained
a herniated disc as a result of the incident
involving the pallet.
The full commission, after reviewing the witnesses'
testimony and the medical evidence, found, as did the deputy
commissioner, that its decision hinged on a credibility
determination. As fact finder, the commission resolved any
inconsistencies between claimant's testimony and that of his
supervisors in favor of claimant. Claimant's testimony, which
was corroborated by coworkers Brown and Royal, and the medical
records, which reflect a history of back pain following the
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pallet incident, provide ample credible evidence to support the
commission's finding. Thus, we are bound by it's finding on
appeal.
For these reasons, we affirm the commission's decision.
Affirmed.
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