B&R Contractors, Inc. v. Wethington

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
B&R CONTRACTORS, INC. AND
PENN NATIONAL SECURITY
INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 0087-99-1 PER CURIAM
JUNE 15, 1999
WILLIE M. WETHINGTON, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William C. Walker; Donna White Kearney;
Taylor & Walker, P.C., on brief), for
appellants.
No brief for appellee.
B&R Contractors, Inc. and its insurer (hereinafter referred
to as "employer") contend that the Workers' Compensation
Commission (commission) erred in (1) refusing to dismiss Willie M.
Wethington, Jr.'s (claimant) request for review due to his failure
to file a written statement; and (2) reversing the deputy
commissioner's credibility determination and finding that claimant
proved that he sustained an injury by accident arising out of and
in the course of his employment on November 15, 1997. Upon
reviewing the record and opening brief, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
commission's decision. See Rule 5A:27.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
I.
Employer's argument that the commission should have granted
its motion to dismiss claimant's appeal to the full commission
because claimant failed to file a written statement on review is
without merit.
Rule 3.2 of the Rules of the Virginia Workers' Compensation
Commission does not mandate that the commission dismiss an
appeal if a written statement is not filed. Here, as the
commission correctly noted, "the request for review . . .
provides sufficient detail to determine the issues on review."
Claimant's two-page request for review specifically stated that
the deputy commissioner erred in failing to credit the testimony
of claimant and his co-worker concerning claimant's accident.
The request for review also challenged the deputy commissioner's
consideration of claimant's recorded statement. Employer's
written statement containing one paragraph devoted to the
credibility issue shed no additional light upon that issue.
Under these circumstances, claimant's failure to file a written
statement did not prejudice employer. Accordingly, we find that
the commission's interpretation of its rule was reasonable, and
will not be disturbed on appeal.
II.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
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Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "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).
The deputy commissioner was not persuaded that claimant
sustained a work-related accident on November 15, 1997. The
deputy commissioner based her conclusion upon the
inconsistencies between claimant's hearing testimony, his
description of the accident given to employer and the insurance
carrier; claimant's evasiveness about what he told Dr. Holden
upon the initial consultation; and the ambiguity of claimant's
co-worker's testimony.
The commission reversed the deputy commissioner and
accepted claimant's testimony describing the November 15, 1997
accident. In so ruling, the commission accepted claimant's
"clear and distinct [credible] testimony at the hearing to a
specific incident at a specific time." The commission noted
those portions of claimant's recorded statement which were
consistent with his hearing testimony, and it weighed any
inconsistencies between claimant's hearing testimony, his
recorded statement, and the November 20, 1997 medical history.
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The commission also considered claimant's pre-November 15, 1997
back problem, but noted that claimant had "continued to work
since 1995 in his regular full-time capacity without additional
medical treatment."
As fact finder, the commission was entitled to weigh all of
the evidence and to conclude that claimant's hearing testimony
was persuasive and established a compensable injury by accident.
Where, as here, the deputy commissioner's decision was not based
upon "a specific, recorded observation regarding the behavior,
demeanor or appearance of [the witnesses], the commission had no
duty to explain its reasons for . . . [accepting claimant's
version of events]." Bullion Hollow Enters., Inc. v. Lane, 14
Va. App. 725, 729, 418 S.E.2d 904, 907 (1992).
Moreover, when the commission's findings are supported by
credible evidence, as in this case, those findings are
conclusive and binding on appeal. See Ross Laboratories v.
Barbour, 13 Va. App. 373, 378, 412 S.E.2d 205, 208 (1991).
Claimant testified that on Saturday, November 15, 1997, between
11:00 and 11:15 a.m., while standing in a footing located
sixteen to eighteen inches below ground, he reached and grabbed
for a piece of plywood, twisting to his left. While bent over
pulling the plywood towards him, he felt a burning pain in his
lower back at about waist level. Claimant did not report the
incident that Saturday because he thought it was minor.
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However, when his pain continued, he reported the incident to
employer the following Monday morning. In claimant's recorded
statement when asked what happened, he responded, "Just setting
concrete – of wooden forms, just uh I guess just bending over
twisting and turning pulled something loose in my back."
Claimant also stated in the recorded statement that he first
experienced the pain at about 11:00 to 11:15 a.m.
Claimant's co-worker, James Williams, testified that
claimant hurt his back at 11:00 a.m. on November 15, 1997.
Williams testified that at that time they were setting forms.
Claimant's testimony, which was corroborated in part by his
recorded statement and Williams's testimony, constitutes
credible evidence to support the commission's decision that
claimant suffered an injury by accident arising out of and in
the course of his employment on November 15, 1997. "Although
contrary evidence may exist in the record, findings of fact made
by the commission will be upheld on appeal when supported by
credible evidence." Bullion, 14 Va. App. at 730, 418 S.E.2d at
907.
For the reasons stated, we affirm the commission's
decision.
Affirmed.
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