Thurman Evans v. YMCA of Central Virginia ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
THURMAN EVANS
v. Record No. 1918-94-3 MEMORANDUM OPINION *
PER CURIAM
YMCA OF CENTRAL VIRGINIA MAY 2, 1995
AND
AETNA CASUALTY AND SURETY COMPANY
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(James B. Feinman; Cary P. Moseley, on briefs), for
appellant.
(Christopher M. Kite; Monica L. Taylor; Gentry, Locke,
Rakes & Moore, on brief), for appellees.
Thurman Evans contends that the Workers' Compensation
Commission erred in (1) finding that he failed to prove that he
sustained an injury by accident arising out of and in the course
of his employment on March 7, 1993; (2) considering hearsay
evidence to impeach his testimony; and (3) disregarding the
testimony of James McFarland. 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. Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the party prevailing below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "In
order to carry his burden of proving an 'injury by accident,' a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
claimant must prove the cause of his 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 Evans' evidence
sustained his burden of proof, the commission's findings are
binding and conclusive upon us. Tomko v. Michael's Plastering
Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Evans was employed by the YMCA as a supervisor custodian.
He testified that on March 7, 1993 at approximately 2:00 p.m., as
he twisted to lift a shovel full of snow and ice, he felt a sharp
pain in his back and leg. Prior to this time, he had shoveled
snow for approximately two and one-half hours. Evans testified
that, after he felt the pain, he tried to continue shoveling, but
could not. Evans stated that, the day after the accident, he
told his supervisor, Chris Windom, about the pain and numbness in
his foot.
In the March 9, 1993 accident report completed by Evans, he
did not report that he felt a sharp pain in his back while he was
lifting a shovel full of snow. Instead, he wrote that he was
shoveling snow and had to stop and hold his back, and that he did
not realize he was hurt until a few days later. The First Report
of Accident completed by Evans reflects that he hurt himself
shoveling snow from 11:15 a.m. to 2:30 p.m.
When Evans received medical treatment on March 19, 1993 at
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the Physicians Treatment Center, he reported that he had been
working overtime shoveling snow. On April 8, 1993, when Evans
was examined at the VA Hospital, he did not report that he hurt
himself while shoveling snow. On the medical information sheets
that Evans completed when he initially saw Drs. McCrary and
Wallace, Evans wrote that the accident occurred at 11:15 a.m. to
2:30 p.m. Dr. McCrary's office notes reflect that Evans gave a
history of shoveling snow and developing numbness and lower back
pain after about three hours. Dr. Wallace reported that Evans
told him that he developed leg numbness and back pain while
shoveling snow.
Susan Landergan, the general director for the YMCA,
testified that Evans told her on April 8 or 9, 1993, that he had
been to the VA Hospital for back pain. However, Evans did not
mention anything to Landergan about the March 7, 1993 incident.
Windom, associate director of the YMCA, testified that he
supervised Evans on a daily basis. Windom stated that,
approximately one week after the accident, Evans told him that he
had hurt his back and leg. When Windom asked Evans how he hurt
himself, Evans stated that he did not know.
James McFarland, a massage therapist who worked across the
street from the YMCA, testified that he saw Evans shoveling snow
on March 7, 1993. Approximately three days later, Evans sought
treatment from McFarland. McFarland testified that Evans told
him that he was shoveling snow and he felt a sharp pain.
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Based upon this record, the deputy commissioner found that
the testimony of Evans and McFarland was not credible. The
deputy commissioner noted that although Evans described the
alleged accident with great particularity at the hearing, he made
no mention of it to Landergan or Windom. In addition, the
medical care providers did not record a history of an
identifiable incident. The deputy commissioner found that Evans
related a history of feeling pain after shoveling snow for a
period of time. Because the evidence proved, at best, that the
injury was gradually incurred, the deputy commissioner found that
Evans failed to prove an injury by accident arising of and in the
course of his employment. On review, the full commission
affirmed the deputy commissioner's findings and accepted his
credibility determination.
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). In this instance, the issue of whether Evans sustained
an injury by accident was entirely dependent upon the credibility
of Evans and the witnesses. Based upon the lack of corroboration
from Landergan, Windom, or the accident reports and medical
records, of the happening of an identifiable incident, we cannot
say as a matter of law that the commission erred in rejecting the
testimony of Evans and McFarland, and finding that Evans failed
to meet his burden of proving an injury by accident.
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We find no merit in Evans' contention that the commission
improperly relied upon hearsay to determine how the accident
happened. It is clear from the commission's opinion that it
considered the medical records and accident reports as
impeachment of Evans' testimony. This is a permissible use of
such evidence. Moreover, the accident reports and medical
information sheets were completed by Evans, and therefore, were
not hearsay evidence.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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