Hughes Service Corp.v Clifford A. Williams ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Duff
HUGHES SERVICE CORPORATION AND
COMMONWEALTH CONTRACTORS GROUP,
SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION*
v. Record No. 1403-00-2 PER CURIAM
OCTOBER 24, 2000
CLIFFORD A. WILLIAMS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Anne M. Dobson; Thompson, Smithers, Newman,
Wade & Childress, on brief), for appellants.
No brief for appellee.
Hughes Service Corporation and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Clifford A.
Williams proved that he sustained an injury by accident arising
out of and in the course of his employment on March 2, 1999.
Upon reviewing the record and opening brief, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the commission's decision. See Rule 5A:27.
"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
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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). "In determining whether credible
evidence exists [to support the commission's ruling], the
appellate court does not retry the 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.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
granting Williams' application, the commission found as follows:
[Williams] candidly admitted that he could
not recall the exact date of the injury. It
is apparent from the record, as well as the
Deputy Commissioner's observations, that
[Williams] had not reviewed records prior to
the hearing that could have assisted him in
pinpointing a date. When his memory was
refreshed by review of Dr. [George A.]
Parker's March 9, 1999, office note, he
admitted that the accident could have
occurred a week earlier when he first sought
treatment from Dr. Powers. The United
Healthcare Explanation of Benefits form
confirms that [Williams] saw Dr. Powers on
March 2, and March 5, 1999.
. . . [Williams'] testimony regarding
the repair of the roller assembly machine in
early March and the heavy lifting required
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is corroborated by his coworker Walter Jones
and by the company owner[, Wallace Hughes].
Mr. Jones corroborated that [Williams]
reported pain to him immediately. Mr.
Hughes stated that [Williams] reported to
him that he experienced pain while coughing
on March 5, 1999. [Hughes] admitted that
[Williams] lost his balance while pulling
out a piece of sheet metal. As both
events--lifting the roller assembly and
losing his balance--establish that
[Williams] sustained a compensable injury by
accident, and as both events are
corroborated by witnesses, we find that
[Williams] sustained his burden of proving a
compensable injury by accident on or about
March 2, 1999, which resulted in a left
inguinal hernia.
In rendering its decision, the commission considered Dr.
Parker's medical history, Williams' testimony, and the testimony
of Jones and Hughes. The commission resolved any
inconsistencies in this evidence in favor of Williams. It is
well settled that credibility determinations are within the fact
finder's exclusive purview. See Goodyear Tire & Rubber Co. v.
Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).
Williams' testimony, which was corroborated by Jones and Hughes,
provides credible evidence to support the commission's findings
that he sustained an identifiable incident on March 2, 1999 that
resulted in a sudden mechanical change in his body, i.e., a left
inguinal hernia. Thus, those findings are conclusive on this
appeal. See James v. Capitol Steel Constr. Co., 8 Va. App. 512,
515, 382 S.E.2d 487, 488 (1989). Those findings are sufficient
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to prove an injury by accident arising out of and in the course
of Williams' employment on March 2, 1999.
For these reasons, we affirm the commission's decision.
Affirmed.
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