Bristol Herald Courier,et al. v. Richard J. Trivett ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Duff*
BRISTOL HERALD COURIER AND
AMERICAN PROTECTION
INSURANCE COMPANY
MEMORANDUM OPINION **
v. Record No. 0280-01-3 PER CURIAM
JUNE 12, 2001
RICHARD JEFFREY TRIVETT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ramesh Murthy; Lisa Frisina Clement; Penn
Stuart, on brief), for appellants.
(D. Edward Wise, Jr.; Arrington, Schelin &
Herrell, P.C., on brief), for appellee.
Bristol Herald Courier and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Richard Jeffrey
Trivett proved he sustained an injury by accident arising out of
and in the course of his employment on December 10, 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.
*
Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
**
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
"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). Furthermore, 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). 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).
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). So
viewed, the evidence proved Trivett sustained a torn rotator
cuff to his left shoulder on March 27, 1999, while working for
employer. Employer accepted the claim as compensable, and the
commission entered an award on March 8, 2000. Dr. Fred
Knickerbocker, Trivett's treating orthopedist, returned him to
work on December 9, 1999, with light duty restrictions.
Trivett testified that on December 10, 1999, he and his
supervisor, John Arnold, engaged in an argument about Trivett's
work schedule. Trivett testified that as he held the doorknob
to leave Arnold's office, Arnold grabbed Trivett's wrist. He
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felt a sharp pain when Arnold jerked his left arm across in
front of his body. He told Arnold to leave him alone and left
the office.
Arnold admitted that he and Trivett argued and that he
might have touched Trivett's hand. Arnold denied jerking
Trivett's arm. Trivett called Gary McCormick, Arnold's
supervisor, and told him that he had reinjured his shoulder.
That same day, Trivett sought treatment from Dr.
Knickerbocker, who recorded the following history:
Patient comes in today where he did go back
to work and worked one night successfully.
Last night, according to the patient, his
supervisor got angry at him for some reason
and jerked his left arm around, aggravating
his left shoulder. Now he is having a lot
of muscle spasm and discomfort to his left
shoulder.
Dr. Knickerbocker prescribed medication and excused claimant
from work until November 29, 1999.
On December 20, 1999, Dr. Knickerbocker noted that Trivett
continued to have pain and muscle spasms. He injected
medication into Trivett's shoulder, prescribed physical therapy,
and excused Trivett from work. On January 24, 2000, Dr.
Knickerbocker noted that despite physical therapy, Trivett was
"still having a fair amount of discomfort and he describes his
problem more, stating that a lot of his discomfort is in the
front of his arm and he states his muscle looks funny to him."
Upon examination, Dr. Knickerbocker found evidence of a biceps
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tendon rupture of the left shoulder, noted that Trivett "doesn't
remember his muscle bunching up like this until after he
reinjured it in early December," and opined that "[t]his may
have actually been what increased his pain at the time of the
incident at work." Dr. Knickerbocker performed surgery to
repair the tendon. In a handwritten note, dated March 21, 2000,
Dr. Knickerbocker reported that Trivett did not have evidence of
a ruptured biceps tendon to his left shoulder until after the
December 10, 1999 work incident, noted that Trivett reported
that "a fellow employee yanked his [left] arm around causing
noted increase pain to [left] shoulder," and opined that the
December 10, 1999 incident "most likely" caused the ruptured
biceps tendon. On May 1, 2000, Dr. Knickerbocker reported that
Trivett's injury on December 10, 1999 was the result of a new
accident and that Trivett had been temporarily totally disabled
since that date by the December 10, 1999 incident. "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). As fact finder, the
commission was entitled to accept Trivett's testimony. His
testimony was corroborated by Dr. Knickerbocker's medical
reports and opinions. The commission considered and gave no
probative value to evidence concerning Trivett's behavior
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towards employees in the office of his family doctor with
respect to unrelated medical treatment during 1995 and 1997. As
the commission noted, the 1995 and 1997 records were irrelevant
and did not shed light upon Trivett's demeanor during his
confrontation with Arnold in December 1999.
Because the commission's findings are supported by credible
evidence, they are binding and conclusive upon us on appeal.
For these reasons, we affirm the commission's decision.
Affirmed.
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