Clinton's Repair Service v. Terry W. Lester ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
CLINTON'S REPAIR SERVICE, INC.
AND
ERIE INSURANCE EXCHANGE MEMORANDUM OPINION *
PER CURIAM
v. Record No. 0133-97-3 JULY 1, 1997
TERRY WILLIAM LESTER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Christopher M. Kite; Monica L. Taylor;
Gentry, Locke, Rakes & Moore, on brief), for
appellants.
(Ginger J. Largen; Morefield, Kendrick, Hess &
Largen, on brief), for appellee.
Clinton's Repair Service, Inc. and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Terry William
Lester proved he sustained an injury by accident arising out of
and in the course of his employment on March 12, 1996. 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.
In rendering its decision, the commission found as follows:
[Lester] credibly testified in detail that he
felt an initial "tug" in his right groin
while climbing onto a bulldozer after
lunchtime. Both the hearing and deposition
testimony reveal that after the bulldozer was
fixed, [Lester] experienced increasing,
though not constant, pain, requiring [Lester]
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to exit the truck at Shorts Gap, and finally
present to the emergency room after returning
home. The recorded statement similarly
documents this increasing pain beginning
after fixing a dozer, and [Lester] has
explained that he did not relate the initial
"tug" because he was focused on the
development of severe pain later on.
Significantly, at the hospital on the
evening of March 12, 1996, Dr. Chavez
reported a history of sudden pain while
climbing up a dozer, which corroborates
[Lester's] testimony. Dr. Chavez's reports
also establish the requisite causal
connection between the work incident and the
diagnosis of testicular torsion requiring
emergency surgery. The more general history
reported by Dr. Patel consistently documents
a sudden pain at work which also supports a
finding of sudden injury.
"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). "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.
In rendering its decision, the commission considered the
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various medical histories, Lester's statements to his employer,
and Lester's recorded statement. The commission resolved any
inconsistencies in this evidence in favor of Lester. Lester's
testimony, which is corroborated by contemporaneous medical
reports, provides credible evidence to support the commission's
finding that he proved an identifiable incident. Lester's
testimony and the medical evidence proved that the incident
caused a sudden mechanical change in his body. The commission so
found. Thus, those findings are conclusive on this appeal. See
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989). Those findings are sufficient to prove
injury by accident arising out of employment.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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