VA Dept of Transportation v. Roy David Mitchell ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton, and Overton
Argued at Salem, Virginia
VIRGINIA DEPARTMENT OF
TRANSPORTATION
MEMORANDUM OPINION * BY
v. Record No. 0181-95-3 JUDGE JAMES W. BENTON, JR.
JANUARY 23, 1996
ROY DAVID MITCHELL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
James W. Osborne, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
briefs), for appellant.
E. Craig Kendrick (Ginger Jonas Largen;
Morefield, Kendrick, Hess & Largen, on
brief), for appellee.
The Virginia Department of Transportation (VDOT) appeals the
commission's finding that Roy David Mitchell, an employee of
VDOT, suffered an injury by accident while he was digging a sign
post hole. VDOT contends that the commission erroneously
reversed the deputy commissioner's credibility finding and that
the medical evidence did not support the finding of a compensable
injury. We affirm the commission's decision.
In reviewing the commission's decision, we must view the
evidence in the light most favorable to Mitchell, the party
prevailing below. Crisp v. Brown's Tysons Corner Dodge, Inc.,
1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). We may only
overturn the commission's findings of fact if they are not
supported by any credible evidence. Code § 65.2-706(A); Manassas
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824,
826 (1991). "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 Enterprises v. Brooks,
12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
Viewed in light of these principles, the evidence proved
that during the winter of 1991, Mitchell temporarily was re-
assigned from his usual job of operating a hydraseeder to VDOT's
district sign shop. While digging a sign post hole on
February 3, 1992, Mitchell struck rock with a metal post hole
digger. Mitchell attempted to puncture the rock by repeatedly
striking it with a steel bar. After hitting the rocks numerous
times, Mitchell "struck the rock on one particular occasion [and]
he commenced having numbness and tingling in his left hand." He
immediately stopped and informed his supervisor. On February 11,
he visited Dr. Robert Bechtel who diagnosed possible carpal
tunnel syndrome. Dr. Bechtel referred Mitchell to Dr. Douglas P.
Williams for nerve conduction studies and also to Dr. Carey
McKain, an orthopedist. All three doctors identified the injury
as probable carpal tunnel syndrome. Dr. McKain performed surgery
on Mitchell's left wrist that eventually enabled him to resume
his regular work.
The deputy commissioner denied workers' compensation
benefits because he found that the injury resulted from
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cumulative and repetitive trauma and not a specific incident or
event. Because the tapes from the April 19, 1994 hearing were
lost, both parties stipulated on the commission's review that the
deputy commissioner's summary of the evidence accurately
recounted the hearing testimony. Reviewing the evidence,
including Mitchell's testimony as contained in the summary of
evidence, the commission found that Mitchell suffered an injury
by accident when he struck rock at a particular occasion.
Finding that the medical evidence proved a work-related
disability, the commission awarded benefits to Mitchell.
To prove an injury by accident, an employee "must prove an
'identifiable incident that occurs at some reasonably definite
time,' which is the cause of 'an obvious sudden mechanical or
structural change in the body.'" The Lane Co., Inc. v. Saunders,
229 Va. 196, 199, 326 S.E.2d 702, 703 (1985)(citation omitted).
In rejecting the deputy commissioner's finding that the injury
occurred during repetitive work rather than from a single
incident, the commission made the following findings:
The claimant testified and the record
supports the fact that in digging holes on
the morning of February 3, 1992, the claimant
struck rock causing repeated jolting to his
arms. On one particular jolt, the claimant
suddenly felt a tingling and numbness in his
left hand. He immediately stopped work and
notified his employer that he was injured and
could no longer dig. Later that day his arm
grew painful. He had no prior symptoms or
problems with his arm. The medical reports
link this "on the job incident" to the
claimant's carpal tunnel syndrome.
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At the hearing before the deputy commissioner, Mitchell
testified that the numbness and tingling occurred after he hit
the rock on one specific occasion. The commission relied
primarily on this testimony in reversing the deputy commissioner.
Further support for the commission's finding can be found in
Mitchell's answer to VDOT's interrogatories where he reported
that after he hit the rock, "[s]uddenly, [he] felt a sensation of
tingling and numbness in his left fingers, wrist and arm." The
commission's findings are also supported in the medical evidence
in which Mitchell's doctor opined that the "on the job incident"
caused the carpal tunnel syndrome. Thus, credible evidence in
the record supports the commission's findings.
VDOT contends, however, that the commission erred in
reversing the deputy commissioner's credibility findings. We
disagree. The principles set forth in Goodyear Tire & Rubber Co.
v. Pierce, 5 Va. App. 374, 363 S.E.2d 433 (1989), do not shelter
the deputy commissioner's findings from review by the commission
solely because the deputy commissioner heard the testimony.
Explaining Pierce, this Court has emphasized that when "the
deputy commissioner's determination of credibility is based upon
the substance of the testimony rather than upon the witness's
demeanor, such a finding is as determinable by the full
commission as by the deputy." Kroger Co. v. Morris, 14 Va. App.
233, 236, 415 S.E.2d 879, 881 (1992). See also Bullion Hollow
Enters., Inc. v. Lane, 14 Va. App. 725, 729, 418 S.E.2d 904, 907
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(1992).
The deputy commissioner did not make "a specific, recorded
observation of a key witness' demeanor or appearance in relation
to credibility." Pierce, 5 Va. App. at 382, 363 S.E.2d at 437.
Indeed, the deputy commissioner made no specific credibility
finding in his decision. His decision was based upon his
analysis of the substance of all of the evidence. However, the
weighing and analysis of the evidence in such a circumstance "is
as determinable by the full commission as by the deputy."
Morris, 14 Va. App. at 236, 415 S.E.2d at 881. We must defer to
the commission's redetermination of the evidence.
Accordingly, the commission's findings, based upon its
analysis of all the evidence, are supported by credible evidence
in the record.
Affirmed.
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