Dorothy Norton v. Opton, Inc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia
DOROTHY NORTON
v. Record No. 1974-95-1 MEMORANDUM OPINION * BY
JUDGE WILLIAM H. HODGES
OPTON, INC. AND MAY 7, 1996
HARTFORD CASUALTY INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Annette Miller (Parker, Pollard & Brown, on
brief), for appellant.
S. Vernon Priddy, III (Mary Louise Kramer;
Matthew J. Ide; Sands, Anderson, Marks &
Miller, on brief), for appellees.
Dorothy Norton ("claimant") appeals a decision of the
Workers' Compensation Commission ("commission") denying her
application which alleged an injury by accident arising out of
and in the course of her employment on November 24, 1993. Norton
contends that the commission erred in (1) finding that she failed
to prove an "injury by accident"; and (2) arbitrarily
disregarding the deputy commissioner's credibility determination.
Finding no error, we affirm.
I.
In December 1992, claimant began working for Opton, Inc.
("employer") on the company's assembly line. On November 24,
1993, claimant helped her supervisor, Gary Durham, perform
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
repacking work. This work involved transferring the company's
product from temporary boxes to permanent boxes. While doing
repacks, claimant assisted Durham in retrieving empty boxes from
overhead shelving. Claimant testified that, as she began to
place one set of four empty boxes on the floor, she felt a pop
and a slight pain in her back. Claimant continued to work and
did not report her injury to Durham until November 29, 1993, her
first day back to work after the Thanksgiving holiday. Claimant
testified that she told Durham she hurt her back "the last night
we worked lifting boxes." She did not tell him about a
particular lifting incident or that she felt a pop in her back.
In a January 14, 1994 recorded telephone interview with
Janis Mason, employer's insurance adjuster, claimant said that
her back and right shoulder pain did not start until Thanksgiving
day, the day after she did the repacks. At that time, she also
did not mention the onset of any sudden pain when she lifted a
particular set of boxes. Rather, she simply mentioned picking up
numerous boxes and packing them.
Medical records showed that claimant told doctors that,
after she lifted boxes at work, she felt pain in her back and
right shoulder. The transcribed notes of Dr. Mendez of the
Riverside Medical Center, the first medical facility claimant
visited, reflected that she lifted a heavy box, while the
handwritten notes stated that she lifted heavy boxes.
The deputy commissioner awarded claimant medical benefits
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and temporary total disability benefits, basing his determination
that claimant proved she suffered an injury by accident on
claimant's testimony and the Riverside medical records. The
deputy commissioner found claimant credible, noting that "she
evidenced no visual or verbal cues that would indicate she was
lying." The deputy commissioner ruled that any contradictory
information in medical records or the recorded telephone
interview was insignificant.
The full commission reversed the deputy commissioner's
decision. In rejecting the deputy commissioner's decision and
finding that claimant did not meet her burden of proof, the
commission relied upon the recorded telephone interview and
various inconsistencies revealed by the medical records. The
commission noted that, although the insurance adjuster invited
claimant to describe a specific precipitating event, she failed
to provide details of a single event or any symptoms on the
alleged date of the accident. Instead, claimant related a
general answer of lifting and packing boxes at work all day and
then experiencing pain the next day, as she did to many of her
physicians. The commission found that, although some of the
medical records related information consistent with an accidental
event on the day before Thanksgiving, they did not describe
events as depicted by claimant's hearing testimony.
II.
On appeal, we view the evidence in the light most favorable
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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
order to carry [her] burden of proving an 'injury by accident' a
claimant must prove that the cause of [her] 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 the
claimant's evidence sustained her burden of proof, the
commission's findings are binding and conclusive. Tomko v.
Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835
(1970).
The commission was confronted with claimant's inconsistent
accounts of how and when her injury occurred, and it was up to
the commission to decide the weight to be given to these accounts
and the credibility of the witnesses in awarding or denying the
claimant compensation. 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 319, 456 S.E.2d
at 544. We find that this rule also applies to admissions made
by a claimant in properly conducted recorded statements.
Although claimant testified that she felt a pop and a slight
pain in her back when lifting a set of boxes at work, she did not
make this specific claim at any other time. She failed to
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mention it during her recorded telephone interview with the
insurance adjuster and she spoke in general terms to her
physicians about lifting heavy boxes at work. The questions
asked by the insurance adjuster provided claimant ample
opportunity to specify that she suffered immediate pain upon
lifting the last set of boxes and that her injury occurred at
work. Instead, claimant responded with generalizations about
lifting boxes at work and then feeling pain the next day at home.
A gradually incurred injury or cumulative trauma injury is not
compensable as an "injury by accident." Morris, 238 Va. at 586,
385 S.E.2d at 863.
The commission, in its role as fact finder, was entitled to
give little weight to the transcribed version of the Riverside
medical report, which stated that claimant "lifted a heavy box at
work and felt pain in the right of her back." This transcribed
version conflicted with the handwritten notes, which mentioned
"lifted heavy boxes," and claimant's other previous statements,
which did not support a specific precipitating event. In
addition, the medical reports which referred to an acute onset of
pain or the pulling of her shoulder did not cite any particular
lifting incident at work as causing an obvious sudden mechanical
or structural change in her body.
Based upon the inconsistencies between claimant's testimony,
the medical records, and the recorded telephone interview, we
cannot find as a matter of law that claimant met her burden of
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proof. In essence, claimant asks us to reweigh the evidence and
the credibility of the witnesses. We cannot do so on appeal.
See Wagner Enters, Inc. v. Brooks, 12 Va. App. 890, 894, 407
S.E.2d 32, 35 (1991).
III.
"When the deputy commissioner makes an explicit finding of
credibility based upon a witness' demeanor or appearance at the
hearing, the commission may reverse that factual finding when it
articulates a basis for its different conclusion that is
supported by credible evidence." Bullion Hollow Enters., Inc. v.
Lane, 14 Va. App. 725, 728, 418 S.E.2d 904, 907 (1992).
The commission acknowledged the deputy commissioner's
credibility finding, and then set forth its specific reasons,
which are supported by the evidence, for rejecting his finding.
The commission found that claimant did not meet her burden of
proof due to the inconsistency between the histories she gave to
her physicians and her hearing testimony. In addition, the
commission relied upon the claimant's recorded telephone
interview, conducted one and one-half months after her alleged
accident, in which she was invited to describe a specific
incident but she failed to do so. This recorded statement,
combined with the lack of a consistent medical history of a
specific lifting incident, supports the commission's conclusion
that claimant's hearing testimony was impeached by her own prior
statements. Accordingly, we cannot say as a matter of law that
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the commission erred in reversing the deputy commissioner's
credibility determination.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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