Merchant's Tire v. Edwin Charles Holden ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
MERCHANT'S TIRE
AND
FIRST NATIONAL INSURANCE COMPANY OF AMERICA
v. Record No. 1880-95-1 MEMORANDUM OPINION *
PER CURIAM
EDWIN CHARLES HOLDEN DECEMBER 27, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert C. Baker, Jr.; Mell, Brownell & Baker,
on brief), for appellants.
(Byron A. Adams, on brief), for appellee.
Merchant's Tire and its insurer (collectively referred to as
employer) appeal a decision of the Workers' Compensation
Commission (commission) awarding benefits to Edwin C. Holden
(claimant). Employer contends that the commission erred in
finding that claimant sustained an injury by accident arising out
of and in the course of his employment on September 5, 1994.
Specifically, employer argues that the commission erred in
reversing the deputy commissioner's credibility determination and
in not following this Court's holding in Pence Nissan Oldsmobile
v. Oliver, 20 Va. App. 314, 456 S.E.2d 541 (1995). Finding no
error, we affirm the commission's decision.
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 § 17-116.010 this opinion is not
designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
On September 5, 1994, claimant worked for employer as a
general service mechanic. He testified that, on that date, he
felt a sharp pain in his lower back while twisting his body and
lifting an automobile tire from a stand-up tire machine. The
pain was so severe that it caused him to drop the tire and drop
to his knees. Claimant was not able to complete his work shift
due to increasing back pain. The next day claimant told Jay
Myers, the assistant store manager, about the incident and his
injury. Thereafter, claimant reported to Sentara Hampton General
Hospital's emergency room for treatment. The emergency room
attending physician reported a history of lifting at work the
previous day, with an acute onset of low back pain. He diagnosed
an acute lumbar strain and referred claimant to Dr. Bruce Reid,
an orthopedic surgeon.
On September 12, 1994, Dr. Reid noted that claimant's back
pain began on September 5, 1994, but that claimant did not admit
to any specific episode at work. Dr. Reid also noted that
claimant believed the sum total of his work activities caused his
back pain. Dr. Reid diagnosed myofascial-type pain and a
thoracic/lumbar strain. On November 10, 1994, after a short
course of physical therapy, Dr. Reid released claimant to return
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to full-duty. Claimant denied telling Dr. Reid that his injury
did not result from a specific incident at work. Claimant also
denied telling Dr. Reid that he believed the sum total of his
lifting activities at work caused his injury.
The deputy commissioner did not accept claimant's testimony
because it was not consistent with the medical history collected
by Dr. Reid. The full commission reversed the deputy's
determination, and found that
the claimant has met his burden. He
testified that he felt a sharp pain in his
lower back while lifting a tire and twisting.
The record reflects that the claimant left
work due to his pain. His testimony that he
informed the assistant manager of the injury
the following day is uncontradicted. We next
consider whether the medical record supports
the claimant's testimony. A medical history
cannot be relied on to determine how an
accident occurred. Board of Supervisors v.
Martin, 3 Va. App. 139, 348 S.E.2d 540(1986), appeal dismissed, 363 S.E.2d 703 (Va.
1987). However, it is admissible as either a
prior consistent or inconsistent statement,
or as an admission of a party opponent. 2
Charles E. Friend, The Law of Evidence in
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Virginia, §§ 18-33, 34 (4th ed. 1993). Here,
the initial treating physician noted a
history of lifting at work, with an acute
onset of lower back pain. His diagnosis of
an acute lumbar strain is more consistent
with an injury from an identifiable incident,
rather than a cumulative trauma injury.
If, as in this case, "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, 880
(1992).
Claimant's testimony, which is consistent with the emergency
room attending physician's notes, provides credible evidence to
support the commission's finding that claimant sustained an
injury by accident arising out of and in the course of his
employment on September 5, 1994. The deputy commissioner's
credibility determination was based on the evidence and the
substance of claimant's testimony. Therefore, the full
commission could make its own credibility determination. Id. In
its role as fact finder, the commission was entitled to give
little weight to Dr. Reid's history notes in light of claimant's
denial that he made such statements to Dr. Reid. Moreover,
without specifically citing to Pence, the commission followed
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Pence's directive by considering claimant's description of his
accident in light of the medical histories he gave to his
physicians. 1
The commission could reasonably infer from claimant's
testimony and the emergency room attending physician's history
and diagnosis that claimant sustained an identifiable incident on
September 5, 1994, which caused an obvious sudden mechanical or
structural change in his body. "Where reasonable inferences may
be drawn from the evidence in support of the commission's factual
findings, they will not be disturbed by this Court on appeal."
Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d
695, 698 (1988).
For the reasons stated, we affirm the commission's decision.
Affirmed.
1
The commission stated that "a medical history cannot be
relied on to determine how an accident occurred." Martin, 3 Va.
App. at 144, 348 S.E.2d at 542. We note that this rule applies
when the claimant fails to testify to facts showing an injury by
accident. In that situation, the rule prevents the claimant from
using a medical history to meet his burden of proof. Pence, 20
Va. App. at 318, 456 S.E.2d at 543. As the commission correctly
noted, medical histories are admissible to corroborate or impeach
testimony where a claimant has testified to facts showing an
injury by accident. McMurphy Coal Co. v. Miller, 20 Va. App. 57,
59, 455 S.E.2d 265, 266 (1995).
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