Sears, Roebuck & Co. v. David Otis Pierce

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
SEARS, ROEBUCK & CO. AND
LUMBERMAN'S MUTUAL CASUALTY COMPANY
v. Record No. 0208-95-2 MEMORANDUM OPINION *
BY JUDGE MARVIN F. COLE
DAVID OTIS PIERCE DECEMBER 5, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Lynne Jones Blain (Michelle P. Wiltshire; Morris and
Morris, on brief), for appellants.
B. Mayes Marks, Jr. (Marks & Lee, on brief), for
appellee.
Sears, Roebuck & Co. and its insurer (hereinafter
collectively referred to as "employer") appeal a decision of the
Worker's Compensation Commission awarding benefits to David O.
Pierce. Employer contends that the commission erred in reversing
the deputy commissioner's credibility determination and finding
that Pierce proved that he sustained an injury by accident
arising out of and in the course of his employment on October 14,
1993. Finding no error, we affirm.
I.
Pierce worked for employer as a lawn mower technician. On
February 18, 1994, Pierce filed an application alleging a right
groin injury occurring at work on October 14, 1993. The
Employer's First Report of Accident, filed with the commission on
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
January 24, 1994, indicated that Pierce strained his right groin
while lifting a tiller into a customer's vehicle on October 14,
1993. The report also stated that Pierce reported his injury to
his supervisor, Willie Harris, on October 14, 1993.
Pierce testified that on October 14, 1993, he picked up a
150-pound tiller in an attempt to place the tiller into a truck.
The tiller moved and fell out of the truck, causing Pierce to
grab it before it fell to the ground. Pierce stated that he
informed Harris about the incident and that he felt something in
his stomach.
Pierce continued to work in his regular job between October
14, 1993 and November 24, 1993. On November 24, 1993,
Thanksgiving day, Pierce called the employee in charge of the
repair department and told her that he needed to see a doctor to
determine if he had sustained a hernia. On November 25, 1993,
employer referred Pierce to Dr. J. Leo Crosier.
Dr. Crosier examined Pierce on November 29, 1993. Dr.
Crosier recorded a history of Pierce sustaining the groin injury
approximately two weeks prior, on November 14, 1993. Dr. Crosier
also noted that Pierce told him he was in the process of lifting
a tiller at work when the pain started. Dr. Crosier diagnosed a
"widened inguinal ring-possible inguinal hernia." Dr. Crosier
referred Pierce to Dr. Benjamin H. Rice, a general surgeon.
On December 6, 1993, Dr. Rice examined Pierce. Dr. Rice
reported that Pierce told him he developed right groin pain while
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helping a customer lift a tiller on November 5, 1993. Dr. Rice
diagnosed right groin pain with possible early hernia. Dr.
Rice's Attending Physician's Reports, rendered in February and
March 1994, reflect the date of injury as October 14, 1993.
Physical therapy notes, dated February 16, 1994, reflect that
Pierce picked up a tiller at work on October 14, 1993 and "it got
away from him."
On November 24, 1993, Pierce completed an "Associate
Statement of Injury," upon which he indicated that he sustained a
groin injury on November 5, 1993, while lifting a tiller out of a
truck. In response to the question on the statement as to who
Pierce reported the injury to, it is recorded that, "[t]his
injury came on slowly, its hard for me to say the day, hour at
which it occurred." Pierce remembered completing and signing
this statement, but he did not believe he wrote the portion of
the statement indicating a gradual injury.
Harris, the lead person in employer's parts department,
testified that Pierce did not report an injury caused by lifting
a tiller on October 14, 1993. Harris stated that on November 23,
1993, Pierce told him that he had a knot or a bump in his thigh
or leg. Harris contended that Pierce never reported to him how
the injury occurred or that he was sure it happened at work.
II.
In denying Pierce's application, the deputy commissioner
found that Pierce did not meet his burden of proving an injury by
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accident arising out of and in the course of his employment.
Based upon his observation of Pierce at the hearing and a review
of the evidence indicating varying dates of injury, the deputy
commissioner found that Pierce's version of events was not
credible.
In its December 30, 1994 opinion reversing the deputy
commissioner, the full commission found that Pierce testified to
an injury by accident occurring at a specific time and place.
The commission found that the Employer's First Report of Accident
corroborated Pierce's testimony, and that Harris' testimony and
the "Associate Statement of Injury" did not rebut Pierce's
evidence. The commission also found that Dr. Rice's Attending
Physician's Report dated March 12, 1994 established Pierce's
disability. The commission awarded temporary total disability
benefits to Pierce from October 14, 1993 through March 2, 1994.
III.
Employer contends that the full commission arbitrarily
ignored the deputy commissioner's credibility determination and
failed to articulate a sufficient basis for its conclusion under
the requirements of our holding in Goodyear Tire & Rubber Co. v.
Pierce, 5 Va. App. 374, 383, 363 S.E.2d 433, 437 (1989).
However,
[t]he principle set forth in Pierce does not
make the deputy commissioner's credibility
findings unreviewable by the commission.
Rather, it merely requires the commission to
articulate its reasons for reversing a
specific credibility determination of the
deputy commissioner when that determination
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is based upon a recorded observation of
demeanor or appearance of a witness. In
short, the rule in Pierce prevents the
commission from arbitrarily disregarding an
explicit credibility finding of the deputy
commissioner.
Bullion Hollow Enters., Inc. v. Lane, 14 Va. App. 725, 729, 418
S.E.2d 904, 907 (1992).
In this case, as in Lane, upon a review of the deputy
commissioner's decision, we do not find a "specific recorded
observation" concerning any witness' demeanor or appearance
related to a credibility determination. In his opinion, the
deputy commissioner merely stated that, "based upon the evidence
before us, we must conclude that [Pierce] has not met his burden
of proof." The deputy commissioner also stated that, "[b]ased
upon our observation of [Pierce] at the hearing and our
examination of the evidence, we find that his version of events
simply is not credible." "Absent a specific, recorded
observation regarding the behavior, demeanor or appearance of
[Pierce or Harris], the commission had no duty to explain its
reasons for . . . [accepting Pierce's version of events]." Id.
Therefore, employer's argument is without merit.
Moreover, when the commission's findings are supported by
credible evidence, as in this case, those findings are conclusive
and binding on appeal. Ross Laboratories v. Barbour, 13 Va. App.
373, 377-78, 412 S.E.2d 205, 208 (1991). Pierce testified that
he sustained a groin injury on October 14, 1993, when he picked
up a 150-pound tiller, put it into a truck, and then caught it as
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it fell. He also testified that he reported the incident and his
injury to Harris on that day. The Employer's First Report of
Accident supports Pierce's testimony. The "Associate Statement
of Injury" also states that Pierce injured himself while lifting
a tiller. Although the exact date of injury recorded in the
documentary evidence is inconsistent, the medical records of Drs.
Crosier and Rice and the physical therapy notes consistently
report a history of Pierce sustaining a groin injury while
lifting a tiller at work, which corroborated Pierce's testimony.
Based upon Pierce's testimony and Employer's First Report,
together with the medical records, we find that credible evidence
supports the commission's decision that Pierce suffered an injury
by accident to his groin arising out of and in the course of his
employment on October 14, 1993. "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." Lane,
14 Va. App. at 730, 418 S.E.2d at 907.
For these reasons, we affirm the commission's decision.
Affirmed.
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