Donna J. Petty v. Waytec Electronics Corp. ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Bumgardner
DONNA J. PETTY
MEMORANDUM OPINION *
v. Record No. 2575-97-3 PER CURIAM
APRIL 14, 1998
WAYTEC ELECTRONICS CORPORATION
AND ST. PAUL FIRE & MARINE
INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jaleh K. Slominski; James B. Feinman &
Associates, on brief), for appellant.
No brief for appellees.
Donna J. Petty ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in finding that she
failed to prove that she sustained an injury by accident arising
out of and in the course of her employment on August 1, 1995.
Upon reviewing the record and claimant's brief, 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. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 her burden of proof, the commission's findings
are binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The commission ruled that claimant did not prove that she
was injured as a result of a specific incident at work on August
1, 1995. As the basis for its decision, the commission made the
following findings:
The claimant testified at the December
10, 1996 hearing to the occurrence of a
specific incident. However, her testimony is
not supported by other evidence. [Claimant]
testified that she reported her injury to two
supervisors and a co-worker. All
representatives of the employer denied
receiving such a report, including her direct
supervisor, Mike Clay, and her co-worker,
Vickie Noel. Ms. Woody's testimony, that the
employer first learned of the accident from
Dr. [Edward] Castaneda, is consistent with
the First Report signed by the employer on
August 14, 1995, six days after the
claimant's resignation.
There is no indication in the medical
records of any report of a specific incident
until August 16, 1995, fifteen days after the
alleged occurrence. [Claimant] did not seek
treatment until one week after the alleged
incident although she was in considerable
pain. When she reported to Dr. Castaneda,
the claimant did not report a specific
incident, but instead wrote she had back pain
of gradual onset after lifting circuit board
panels. Dr. Castaneda recorded this history
twice.
As fact finder, the commission was entitled to accept the
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testimony of employer's witnesses and to reject claimant's
testimony that a specific incident occurred. It is well settled
that credibility determinations are within the fact finder's
exclusive purview. See Goodyear Tire & Rubber Co. v. Pierce, 5
Va. App. 374, 381, 363 S.E.2d 433, 437 (1987). In this instance,
the issue of whether claimant sustained an injury due to a
specific identifiable incident occurring at work on August 1,
1995 was entirely dependent upon the credibility of the
witnesses. The commission, in considering the testimony of the
witnesses, found that claimant's evidence was insufficient to
establish her claim. In light of the inconsistencies between her
testimony and the testimony of employer's witnesses, and the lack
of any history of a specific incident in Dr. Castaneda's initial
medical reports, we cannot say, as a matter of law, that
claimant's evidence sustained her burden of proof.
Claimant also argues that the commission erred in using a
doctor's history to determine how the accident occurred. This
contention is without merit. In McMurphy Coal Co. v. Miller, 20
Va. App. 57, 59, 455 S.E.2d 265, 266 (1995), we held that under
common law rules of evidence, medical histories are admissible
substantively as party admissions. Thereafter, we recognized in
Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314, 456 S.E.2d
541 (1995), that, under Rule 2.2 of the Rules of the Workers'
Compensation Commission, the commission may consider medical
histories in determining how an accident occurred. Rule 2.2
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gives the commission "'[t]he discretion to give probative weight
to hearsay statements in arriving at its findings of fact.'"
Oliver, 20 Va. App. at 319, 456 S.E.2d at 544 (quoting Williams
v. Fuqua, 199 Va. 709, 714, 101 S.E.2d 562, 566 (1958)).
Finally, claimant argues that the commission arbitrarily
reversed the deputy commissioner's credibility finding without
articulating a reasonable basis for doing so. However, where, as
in this case, the deputy commissioner did not base his
credibility determination on a specific, recorded observation
regarding the behavior, demeanor, or appearance of the witnesses,
the commission had no duty to explain its reasons for rejecting
claimant's version of events. See Bullion Hollow Enters., Inc.
v. Lane, 14 Va. App. 725, 729, 418 S.E.2d 904, 907 (1992).
Moreover, the commission's opinion shows that it weighed all of
the evidence, including the medical records, claimant's
testimony, and the testimony of employer's representatives in
rendering its decision.
For these reasons, we affirm the commission's decision.
Affirmed.
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