James R. Milam v. Consolidation Coal Company

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
JAMES R. MILAM
MEMORANDUM OPINION*
v. Record No. 1115-01-3 PER CURIAM
AUGUST 28, 2001
CONSOLIDATION COAL COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(S. T. Mullins; Street Law Firm, on brief),
for appellant.
(Michael F. Blair; Lisa Frisina Clement;
PennStuart, on brief), for appellee.
James R. Milam (claimant) contends that the Workers'
Compensation Commission erred in finding that he failed to prove
he sustained an injury by accident arising out of and in the
course of his employment on January 24, 2000. 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. See Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "In
order to carry [the] burden of proving an 'injury by accident,'
a claimant must prove that the cause of [the] injury was an
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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) (citations omitted). Unless we can say as a matter
of law that claimant's evidence sustained his burden of proof,
the commission's findings are binding and conclusive upon us.
See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173
S.E.2d 833, 835 (1970).
In denying claimant's application, the commission found as
follows:
The testimony of Lee Blackburn and Edward
Davidson confirms that the claimant's back
injury occurred gradually throughout his
shift on January 24, 2000. Each testified
that the claimant described his backache as
progressively worsening as he continued to
shovel coal and rock. . . . The claimant in
the present matter has presented no . . .
credible evidence of a specific injury.
The medical evidence supports this
conclusion. Dr. [Jim C.] Brasfield took a
thorough history from the claimant and noted
the claimant's back tightened after the meal
break. The pain worsened as he continued
until he could shovel no more due to
discomfort. While other doctors related the
injury to an immediate onset of pain, their
records do not indicate a complete history
in which the claimant described frequent
backaches when he shoveled, coupled with
progressively worsening backache on January
24, 2000. We find Dr. Brasfield's
examination notes to be more thorough and
complete than those of Dr. [Tushar T.] Patel
or Dr. [Syed A.] Zahir.
The claimant adamantly denies ever
speaking to Lee Blackburn regarding the
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injury. If true, it is not clear how
Blackburn would have such a detailed
knowledge of the incident and injury. As
the deputy commissioner did, we accord
greater weight to the witness testimony and
the records of Dr. Brasfield.
It is well settled that credibility determinations are
within the fact finder's exclusive purview. Goodyear Tire &
Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437
(1987). As fact finder, the commission was entitled to accept
the testimony of Blackburn and Davidson and to reject any
contrary testimony of claimant. In addition, the commission was
free to weigh the medical evidence and to give more probative
weight to Dr. Brasfield's medical history than to that of Drs.
Patel and Zahir. "Medical evidence is not necessarily
conclusive, but is subject to the commission's consideration and
weighing." Hungerford Mechanical Corp. v. Hobson, 11 Va. App.
675, 677, 401 S.E.2d 213, 215 (1991).
In light of the testimony of Blackburn and Davidson and
Dr. Brasfield's medical history, we cannot find as a matter of
law that claimant's evidence sustained his burden of proving
that his injury was caused by a specific identifiable incident
or sudden precipitating event occurring at work on January 24,
2000.
For these reasons, we affirm the commission's decision.
Affirmed.
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