Wise Co Board of Supervisors v. Michael Lipps ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
WISE COUNTY BOARD OF SUPERVISORS
AND
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION MEMORANDUM OPINION *
PER CURIAM
v. Record No. 2923-96-3 APRIL 22, 1997
MICHAEL LIPPS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James R. Hodges; White, Bundy, McElroy,
Hodges & Sargent, on briefs), for appellants.
(Paul L. Phipps; Lee & Phipps, on brief), for
appellee.
Wise County Board of Supervisors and its insurer
(hereinafter collectively referred to as "employer") contend that
the Workers' Compensation Commission (commission) erred in
finding that (1) Michael Lipps (claimant) proved that he
sustained an injury by accident arising out of and in the course
of his employment on March 14, 1995; and (2) claimant proved that
his left knee injury was causally related to the March 14, 1995
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.
Claimant, a deputy sheriff, asserted that he injured his
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
left knee while engaged in training exercises at work. The
commission found claimant's testimony credible, and "not
impeached by the medical records despite some minor
inconsistencies." In addition, the commission found that Dr.
Robert T. Strang, Jr. causally linked the incident to claimant's
injury and disability. In rendering its decision, the commission
found as follows:
Although the Deputy Commissioner found
that the claimant's testimony regarding a
sudden injury is impeached by the medical
records, we do not agree. A credibility
determination by the Deputy is not binding on
the Commission, although we will not
arbitrarily reject it. The claimant's
uncontradicted testimony is that he felt a
pop in his knee, fell to the floor, and was
sent to the bleachers to rest. The emergency
room report four days later indicates that he
thought he might have strained it during the
exercise program at work, although he did not
notice a bruise until the day before.
Although he denied trauma, this may reflect
the lack of trauma at the time he noticed the
bruise, or the lack of a certain type of
traumatic event. Dr. [R. M.] Moore's records
refer to the exercise training, although
there is no mention of a specific incident.
It is, however, well established that the
failure of a medical record to duplicate in
detail the particulars of an accident will
not necessarily rebut the credible testimony
of a claimant. Dr. Strang's medical records
corroborate the claimant's testimony, albeit
with the wrong date.
"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
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change in the body." Morris v. Morris, 238 Va. 578, 589, 385
S.E.2d 858, 865 (1989). Claimant's testimony, which was
corroborated by Dr. Strang's medical history, provides credible
evidence to support the commission's finding that claimant proved
an identifiable incident resulting in a sudden mechanical change
in his body. In addition, Dr. Strang's medical records provide
credible evidence to support the commission's finding that
claimant proved a causal connection between the March 14, 1995
injury by accident and his knee injury and subsequent disability.
Thus, those findings are 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
various medical histories and resolved any inconsistencies 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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