Roger A. Mayhew v. The Lane Company, Inc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
ROGER A. MAYHEW
MEMORANDUM OPINION *
v. Record No. 0458-96-3 PER CURIAM
AUGUST 13, 1996
THE LANE COMPANY, INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James B. Feinman; Esther S. McGuinn, on
brief), for appellant.
(Richard D. Lucas; Carter, Brown & Osborne,
on brief), for appellee.
Roger A. Mayhew ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in finding that he
failed to prove that he sustained an injury by accident arising
out of and in the course of his employment on February 14, 1995.
Specifically, claimant argues that the commission denied him due
process and erred in considering hearsay statements contained in
the medical records and other reports to support its finding that
his testimony relating a specific identifiable incident was not
credible. Upon reviewing the record and the briefs of the
parties, we find 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). "In
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
order to carry his burden of proving an 'injury by accident' a
claimant must prove that the cause of his 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). Unless we can say as a matter of law that claimant's
evidence sustained his burden of proof, the commission's findings
are binding and conclusive upon us. Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In ruling that claimant failed to prove he sustained an
identifiable incident, the commission in adopting by reference
the findings of the deputy commissioner found as follows:
[C]laimant['s testimony] described the elbow
injury as occurring as he was attempting to
dislodge and lift a box containing a chest of
drawers which was stacked on top of other
boxes of furniture near the front of the
trailer. This testimony must be considered
in light of the earlier histories recorded by
medical personnel, as well as his employer.
Those histories related only the onset of
right arm pain "at work" or during the entire
unloading procedure.
The claimant's testimony . . . does not
necessarily conflict with the earlier
histories of injury which he provided. . . .
[H]is testimony differs only in the detail
provided, as to the work being performed at
the time the injury occurred. However, the
claimant made several reports regarding the
onset of pain prior to the taking of
testimony at the Hearing, and in none of
those reports was a sudden onset of pain
reported, nor the onset of pain associated
with lifting any particular box. . . . [W]e
are persuaded that he was afforded ample
opportunity to report a sudden injury, but
his reports suggest only a gradual onset of
pain.
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"[I]njuries resulting from repetitive trauma . . . as well
as injuries sustained at an unknown time, are not 'injuries by
accident' within the meaning of Code § 65.1-7 [now Code
§ 65.2-101]." Morris, 238 Va. At 589, 385 S.E.2d at 865. After
reviewing and weighing all of the evidence, the commission ruled
that, in light of claimant's failure to mention a specific
incident in any of his pre-hearing statements or the medical
histories he failed to prove an injury by accident.
The commission was confronted with differing accounts of how
and when claimant sustained his elbow injury, and it was for the
commission to decide the weight to be given these accounts and
the credibility of the witnesses. See Pence Nissan Oldsmobile v.
Oliver, 20 Va. App. 314, 317, 456 S.E.2d 541, 543 (1995). The
commission may consider medical histories as party admissions and
as impeachment of the claimant's testimony. Id. at 318-19, 456
S.E.2d at 543-44. Accordingly, we cannot say as a matter of law
that claimant's evidence sustained his burden of proving an
injury by accident occurring on February 14, 1995.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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