Kimberly E. Martin v. Town of Pulaski

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
KIMBERLY E. MARTIN
MEMORANDUM OPINION*
v. Record No. 0582-01-3 PER CURIAM
JULY 17, 2001
TOWN OF PULASKI AND
VIRGINIA MUNICIPAL LEAGUE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Deborah W. Dobbins; Erin E. Slusser; Gilmer,
Sadler, Ingram, Sutherland & Hutton, on
brief), for appellant.
(S. Vernon Priddy III; P. Dawn Bishop;
Mark M. Caldwell III; Sands, Anderson, Marks &
Miller, on brief), for appellees.
Kimberly E. Martin (claimant) contends the Workers'
Compensation Commission erred in (1) adopting the deputy
commissioner's credibility determination rather than performing
its own independent de novo review of the evidence; and (2)
finding claimant was not credible and she failed to prove that
she sustained an injury by accident arising out of and in the
course of her employment on November 17, 1998. 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.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
The commission recited in its opinion that it was reluctant
to reverse the deputy commissioner's factual findings unless
plainly in error and that it would defer to the deputy
commissioner's credibility determinations in most instances.
However, the record plainly shows that the commission
independently reviewed the evidence in concluding that the
deputy commissioner's determination was not "plainly in error."
The commission's opinion thoroughly recites the testimony
of the witnesses, claimant's deposition testimony, the content
of the Quick-Fax Report, and the content of the medical records.
The commission recognized that the issue of whether claimant
proved a compensable injury by accident was factual and depended
largely upon her credibility. Regardless of the commission's
citation to Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App.
374, 363 S.E.2d 433 (1987), aff'd after remand, 9 Va. App. 120,
384 S.E.2d 333 (1989), and Virginia Real Estate Board v. Kline,
17 Va. App. 173, 435 S.E.2d 596 (1993), its opinion, taken as a
whole, unequivocally shows that the commission weighed the
testimony of the witnesses and the content of the medical
records and agreed with the deputy commissioner's determination
that claimant's testimony was not credible.
In short, the full commission simply found no reason to
reverse the deputy commissioner's credibility determination and
did not err by adopting the deputy commissioner's findings
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rather than reversing his decision. Goodyear Tire prohibits the
commission from arbitrarily disregarding the deputy
commissioner's credibility determination where it is based upon
demeanor or appearance. 5 Va. App. at 382, 363 S.E.2d at 437.
However, nothing in Goodyear Tire prohibits the commission from
weighing the evidence and adopting the deputy commissioner's
credibility determination where it is based upon the substance
of the witnesses' testimony.
Accordingly, we find no merit in claimant's argument that
the commission applied an incorrect standard of review in
rendering its decision affirming the deputy commissioner's
decision.
II.
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
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). Unless we can say as a matter of law that
claimant's evidence sustained her burden of proof, the
commission's findings are binding and conclusive upon us. See
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Tomko v. Michael's Plastering. Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
The commission ruled that claimant failed to prove that she
was injured as a result of a specific incident at work on
November 17, 1998. As the basis for its decision, the
commission made the following factual findings:
[Claimant] testified under oath that
she felt a pop or pull when her arm twisted
while engaged in the "chicken wing"
manuever. . . . [S]he did not reference
this particular detail about the injury in
her initial comment to Sergeant [Jim]
Gregory, Dr. [James P.] Jonak, or her
physical therapist.
In the claimant's deposition testimony,
she identified a specific instance during
the performance of a specific maneuver when
she felt her shoulder pop and pull. She
recalled that incident occurred on the
second day of a five-day training program at
approximately 2 or 3 p.m. Although the
claimant said that her shoulder hurt
immediately and at the Hearing, testified
that she "knew that [she] had hurt [her] arm
. . ." she did not report the injury until
the training course was over. Although she
purportedly knew what had caused her arm to
hurt, she never reported this specific,
identifiable event to Sergeant Gregory, Dr.
Jonak, or her physical therapist.
Gregory testified that when the
claimant told him that she thought she had
pulled a muscle in her shoulder and needed
to see a doctor, she did not tell him, and
he did not know, that the problem was
work-related. He said that several months
later, when he reviewed the "Quick Fax
Report," he thought that she had been
injured at work, but that the injury
developed over the course of the five-day
training program. Gregory said that he was
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not aware of a specific event that caused
the claimant's injury.
Dr. Jonak's initial treatment record of
December 11, 1998, reflects that the
claimant had been "doing a lot of physical
activity to help build her upper body
strength. . . ." and was having left
shoulder discomfort. There is no mention of
the five-day training program or of the
specific injury she alleges occurred on the
second day of that program. The physical
therapist's December 15, 1998, report
reflects that four weeks prior, the claimant
was in a defensive tactics course, but noted
that she did not notice any soreness until
the next morning.
. . . [N]early a year after the
accident, in a September 2, 1999 "Quick-Fax
Report," claimant reported that she "[d]id
not realize . . ." that she had injured
herself and "just thought [her] muscles were
very sore."
(Deposition citations omitted.)
The commission's findings are amply supported by the
record. As fact finder, the commission was entitled to reject
claimant's hearing and deposition testimony that a specific
incident occurred. It is well settled that credibility
determinations are within the fact finder's exclusive purview.
Goodyear Tire, 5 Va. App. at 381, 363 S.E.2d at 437. In this
instance, the issue of whether claimant sustained an injury due
to a specific identifiable incident occurring at work on
November 17, 1998 was dependent upon her credibility. The
commission, in considering the testimony of the witnesses, the
content of the Quick-Fax Report, and the content of the medical
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records, found that claimant's evidence was insufficient to
establish her claim.
In light of Gregory's testimony, the content of the
Quick-Fax Report, and the lack of any history of a specific
incident in Dr. Jonak's or the physical therapist's medical
reports, we cannot find as a matter of law that claimant's
evidence sustained her burden of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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