Cox Enterprises v. Timothy Rasnake ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
COX ENTERPRISES and
BIRMINGHAM FIRE INSURANCE
COMPANY OF PENNSYLVANIA
MEMORANDUM OPINION*
v. Record No. 0283-01-3 PER CURIAM
JUNE 19, 2001
TIMOTHY RASNAKE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Douglas A. Seymour; Siciliano, Ellis, Dyer &
Boccarosse, on brief), for appellants.
(Barbara J. Balogh; Poindexter & Schorsch, on
brief), for appellee.
Cox Enterprises and its insurer (hereinafter referred to as
"employer") contend that the Workers' Compensation Commission
erred in finding that Timothy Rasnake (claimant) proved that he
sustained an injury by accident arising out of and in the course
of his employment on October 28, 1999. 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. See 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.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "In
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).
Factual findings made by the commission will be upheld on
appeal if supported by credible evidence. See James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989). Furthermore, it is well settled that credibility
determinations are within the fact finder's exclusive purview.
Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363
S.E.2d 433, 437 (1987).
Claimant testified that he injured his back on October 28,
1999, when a chain broke while he was tightening it with a
tie-down bar. As fact finder, the commission was entitled to
accept claimant's testimony and to give little probative weight
to the testimony of his co-workers, Jeffrey Stern and Phillip
Hensley. Claimant's testimony constitutes credible evidence to
support the commission's finding.
The commission articulated its reasons for giving little
probative weight to the testimony of Stern and Hensley. Stern
did not witness the incident, and his search for the broken
chain occurred some time after claimant last used the truck and
- 2 -
one week after Stern was assigned the truck. Claimant readily
acknowledged that he did not tell Hensley about the incident nor
was he required to report it to him. Moreover, claimant's
fiancée, Deborah Rosen, testified that claimant called her on
October 29, 1999 and told her that he had injured his back when
a tie-down chain broke on the trailer. Rosen, in turn, called
employer and told Desi Derra, a secretary for employer, the
details of the incident. Rosen asked Derra to relay that
information to claimant's supervisor, Tom Miller. When Rosen
spoke to Miller on November 2, 1999, Miller indicated that he
was already aware of the incident.
In addition, claimant's testimony was consistent with the
history he reported to Dr. Douglas Degan on November 22, 1999.
Dr. Degan's office notes indicate that the claimant "initially
injured his back while working on approximately 10/25/99. He
fell from a truck trying to tie down some cars and a chain
broke." As fact finder, the commission was entitled to weigh
the medical evidence and to conclude as follows:
While [Dr. Degan's] initial report did not
reflect a history of an injury on October
28, 1999, we note that the underlying
medical visit occurred after Rosen had
contacted the employer and reported the work
injury. Therefore, we find Dr. Degan's
notation reflecting only the history of
pain, which immediately preceded the visit
to not be necessarily inconsistent with the
claimant's testimony.
- 3 -
Because the commission's findings are supported by credible
evidence, they are binding and conclusive upon us on appeal.
"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." Wagner Enters., Inc. v. Brooks, 12 Va.
App. 890, 894, 407 S.E.2d 32, 35 (1991). Moreover, "[i]n
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." Id.
For these reasons, we affirm the commission's decision.
Affirmed.
- 4 -
- 5 -