B & N Contractors v. Vearlyn Wheeler

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Bumgardner
B & N CONTRACTORS, INC. AND GENERAL
ACCIDENT INSURANCE COMPANY OF AMERICA
MEMORANDUM OPINION *
v. Record No. 0575-98-1 PER CURIAM
JULY 21, 1998
VEARLYN WHEELER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Bradford C. Jacob; Taylor & Walker, P.C., on
brief), for appellants.
(Byron A. Adams, on brief), for appellee.
B & N Contractors, Inc. and its insurer (hereinafter
referred to as employer) contend that the Workers' Compensation
Commission (commission) erred in reversing the deputy
commissioner's credibility determination and finding that Vearlyn
Wheeler (claimant) proved that she sustained an injury by
accident arising out of and in the course of her employment on
December 2, 1996. 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 [her] burden of proving an 'injury by accident,' a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
claimant must prove that the cause of [her] 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 found that claimant did not prove
she sustained an injury by accident arising out of and in the
course of her employment on December 2, 1996. In so ruling, the
deputy commissioner found that claimant's testimony was not
credible. The deputy commissioner noted that "claimant testified
in a stilted manner without eye contact" and that she
"exaggerated her injuries, in particular, asserting that even as
of the hearing she was suffering from dizziness and blurred
vision . . . ."
The full commission reversed the deputy commissioner's
credibility determination. The full commission based its
decision on the fact that "the medical records corroborate
[claimant's] testimony that she was struck in the head by an
arrow sign when a beam was thrown on the ground."
Employer contends that the full commission disregarded the
deputy commissioner's credibility determination without a
sufficient basis to do so. However,
[t]he principle set forth in [Goodyear Tire &
Rubber Co. v.] Pierce[, 5 Va. App. 374, 383,
363 S.E.2d 433, 438 (1987),] 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
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specific credibility determination of the
deputy commissioner when that determination
is based upon a recorded observation of the
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).
Here, the commission articulated specific reasons for
disagreeing with the deputy commissioner's credibility
determination. Contrary to employer's assertion, the commission
properly considered the histories contained in the medical
records to corroborate claimant's testimony regarding the
accident. See Pence Nissan Oldsmobile v. Oliver, 20 Va. App.
314, 319, 456 S.E.2d 541, 544 (1995).
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 Lab. v. Barbour, 13 Va. App.
373, 377-78, 412 S.E.2d 205, 208 (1991). Claimant testified that
on December 2, 1996, she took a break after helping to unload
beams from a truck and stood beside an arrow board sign, which
was on a stand with two wheels. Claimant stated that an employee
was throwing beams on the ground, and she was told that one of
the beams bounced up and hit the stand. As she stood under the
sign, it started to roll. Claimant thought that she had moved
out of the sign's path, but an iron part of the sign hit her
head.
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Claimant reported the incident to her supervisor and sought
medical treatment that day. The medical records contain a
history of the accident consistent with claimant's testimony. In
addition, claimant's neighbor, Theresa D. McKenney, testified
that on December 2, 1996 between 2:00 and 3:00 p.m., claimant
came to her house and was "incoherent." Claimant reported the
accident to McKenney. McKenney testified that claimant was dizzy
and could not see very well. McKenney accompanied claimant in a
taxicab to the hospital emergency room.
Based upon claimant's testimony, which was corroborated by
McKenney's testimony and the medical records, we find that
credible evidence supports the commission's decision that
claimant sustained an injury by accident arising out of and in
the course of her employment on December 2, 1996. "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 these reasons, we affirm the commission's decision.
Affirmed.
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