National Fruit Prod Co Inc v. Beth Winters

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
NATIONAL FRUIT PRODUCT COMPANY, INC.
AND
LIBERTY MUTUAL FIRE INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 0704-97-3 PER CURIAM
AUGUST 5, 1997
BETH WINTERS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Beth M. Coyne; Fowler, Griffin, Coyne &
Coyne, on briefs), for appellants.
(George L. Townsend; Chandler, Franklin &
O'Bryan, on brief), for appellee.
National Fruit Product Company, Inc. and its insurer
(hereinafter collectively referred to as "employer") contend that
the Workers' Compensation Commission (commission) erred in
finding that (1) Beth Winters' claim, filed on May 29, 1996 and
alleging an injury on March 13, 1995, was not barred by the
doctrine of res judicata; and (2) Winters proved she sustained an
injury by accident arising out of and in the course of her
employment on March 13, 1995. Upon reviewing the record and the
briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the commission's
decision. Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Res Judicata
Res judicata applies "where there is a valid, personal
judgment obtained by a defendant on the merits of an action. The
judgment bars relitigation of the same cause of action, or any
part thereof which could have been litigated between the same
parties and their privies." K & L Trucking Co. v. Thurber, 1 Va.
App. 213, 219, 337 S.E.2d 299, 302 (1985).
The commission found that Winters' May 29, 1996 application
for compensation was not barred by the doctrine of res judicata.
The May 29, 1996 application presented the issue whether Winters
sustained an injury by accident arising out of and in the course
of her employment on March 13, 1995. The commission found that
this issue was not previously litigated and determined as to
these parties. Winters' earlier application, filed on April 20,
1995, alleged an injury by accident occurring on March 2, 1995.
The record established that the two applications dealt with two
different alleged industrial accidents. Therefore, the
commission did not err in finding that the doctrine of res
judicata did not bar it from considering Winters' May 29, 1996
application.
Injury by Accident
Winters testified that on March 13, 1995, she was in the
warehouse stacking forty-pound boxes containing bottles of tea:
And approximately 5:00 I picked one up and I
don't know if I twisted or what, but I felt
intense pain in my lower back, a
popping. . . . It was just right in my
spine, my low -- lower spine. And got really
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light-headed and felt like I was going to
pass out. . . . I laid over top of the
pallet and just told all of the workers that
were there that I couldn't do it, I couldn't
work.
"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 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). Winters' testimony, which was generally
corroborated by the medical histories, provides credible evidence
to support the commission's finding that she proved an
identifiable incident resulting in a sudden mechanical change in
her body on March 13, 1995. Thus, that finding is conclusive on
this appeal. See James v. Capitol Steel Constr. Co., 8 Va. App.
512, 515, 382 S.E.2d 487, 488 (1989). Although Winters had
experienced back problems prior to the March 13, 1995 incident,
credible evidence supports the commission's conclusion that "she
felt a sudden pain on March 13, 1995, which did not compare to
her prior soreness and which precipitated her disability and an
ongoing course of medical treatment."
In rendering its decision, the commission considered the
medical histories and Winters' recorded statement, and the
commission resolved any inconsistencies between this evidence and
Winters' testimony in favor of Winters. "In determining whether
credible evidence exists, the appellate court does not retry the
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facts, reweigh the preponderance of the evidence, or make its own
determination of the credibility of the witnesses." Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991). "The fact that there is contrary evidence in the record
is of no consequence if there is credible evidence to support the
commission's finding." Id.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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