Tyler v. Brown v. Corning, Inc. ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
CORNING, INC. AND
ROYAL INDEMNITY COMPANY
v. Record No. 1752-00-3
TYLER V. BROWN MEMORANDUM OPINION*
PER CURIAM
TYLER V. BROWN NOVEMBER 28, 2000
v. Record No. 1768-00-3
CORNING, INC. AND
ROYAL INDEMNITY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James A. L. Daniel; Elizabeth B. Carroll;
Daniel, Vaughan, Medley & Smitherman, P.C.,
on briefs), for Corning, Inc. and Royal
Indemnity Company.
(Henry G. Crider; Crider Law Office, on
briefs), for Tyler V. Brown.
Corning, Inc. and its insurer (hereinafter referred to as
"employer") contend that the Workers' Compensation Commission
erred in finding that Tyler V. Brown (claimant) proved that (1)
he sustained a compensable injury by accident on February 4,
1999; and (2) employer was responsible for the cost of medical
treatment provided by Dr. Frank Tate, a chiropractor. On
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
cross-appeal, claimant contends that the commission erred in
finding that he failed to market his residual work capacity on
or after May 17, 1999. Upon reviewing the record and the briefs
of the parties, we conclude that these appeals are without
merit. Accordingly, we summarily affirm the commission's
decision. See Rule 5A:27.
I. Injury by Accident
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Claimant testified that on Thursday, February 4, 1999, at
approximately 1:00 p.m., while working for employer as a
tradesman, he was repairing a lehr belt. This job required that
he wedge a 2 x 6 board under the belt. As claimant pried and
pushed the board, in an effort to get it under the belt, he felt
a burning sensation in his mid-back. He had never felt this
type of pain before. He took a break and walked around. The
sharp pain subsided, but he still felt a bulging pain. He was
able to finish working that day, completing his shift at
3:30 p.m. That day claimant mentioned to Mike Davis, his group
leader, that he thought he had pulled something in his back.
Claimant worked Friday, February 5, 1999 and testified that
his back did not start bothering him until he woke up on
Saturday morning.
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On Monday, February 8, 1999, claimant went to work and
reported the incident to Carolyn Harrison, the plant nurse.
Harrison did not offer claimant a panel of physicians. Claimant
sought treatment from Dr. Tate that day.
On Tuesday, February 9, 1999, claimant reported the
incident to Mike Jones, his supervisor. Claimant did not want
to report his accident as a workers' compensation claim at that
time because the company was in the middle of a period of no
injuries and claimant thought that his back would get better in
a few weeks. Claimant completed a form for short term
disability, but he did not know that it would be submitted as
unrelated to work and he did not indicate on the form whether
the accident happened at work. Sometime in February 1999,
claimant told employer's personnel supervisor, Kevin Konopski,
that he wanted to "treat" the injury as a disability and not as
a workers' compensation claim. Konopski admitted that he was
aware that an accident report had been completed which indicated
that claimant hurt his back while on the job on February 4, 1999
at 1:00 p.m. Konopski admitted that claimant never told him
that the work-related incident had not happened.
Claimant denied telling any co-workers that his back injury
was not work-related. Claimant agreed that he had back problems
before February 4, 1999 and that he had treated with Dr. Tate
for those problems. The record established that claimant had
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not undergone any treatment for his back since 1991 until after
the February 4, 1999 incident.
A February 9, 1999 accident report signed by claimant and
Jones reflected that claimant was pushing a 2 x 6 board under a
172 lehr belt, which required him to lift, lower, and push at
the same time. The report stated, "Did not feel anything at the
time. Woke up next day with a sore back." The report noted
that the injury occurred while performing normal duties, on the
job, during regular work hours. Claimant specifically denied
making the statement that he did not feel anything at the time
of the incident.
A document entitled "PeopleSoft Incident Detail," completed
on February 9, 1999, showed an incident of February 4, 1999,
occurring at 1:00 p.m and reported on February 8, 1999. The
report listed the nature of the injury as "[b]ack pain, hurt
back" and the accident type as "[o]verexertion in pulling or
pus[hing]." The report described the incident as follows:
"Employee stated he was pushing a 2"x6" board under 172 lehr
belt. It required lifting and lowering and pushing at the same
time. He did not fell anything at the time. Woke up next day
with sore back."
In ruling that claimant proved he sustained an injury by
accident arising out of and in the course of his employment on
February 4, 1999, the commission found as follows:
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[W]e note the claimant's testimony
concerning a specific incident which is
corroborated by the various medical
histories. His testimony is buttressed by
the PeopleSoft Incident Detail report. The
employer's initial accident report indicates
a work injury and generally comports with
claimant's testimony except that the report
reflects that the claimant did not feel
anything at the time. The claimant
testified to feeling some pain at the time
but that it eased up, allowing him to
continue to work the following day. . . .
We are not persuaded that an accident
did not occur merely because the claimant
elected to file for short term disability.
At the time the short-term disability was
sought, Konopski was aware of the report
indicating a work related injury. . . . We
note the claimant's testimony that he
believed the disability to be for a short
period of time and did not want to be the
person to break the lost time record. . . .
* * * * * * *
While the claimant agreed and several
witnesses testified to discussions
concerning back pain prior to this incident,
we can find no medical report to indicate
any treatment since April 1991, when he saw
the chiropractor. There is no medical
evidence that claimant had any disc
herniation or other similar problem. . . .
No witnesses testified that prior to the
accident the claimant missed any time from
work as a result of a back problem.
"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
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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.Claimant's testimony, which was consistent with the various
medical histories and which was generally corroborated by the
accident report and PeopleSoft Incident Report, constituted
credible evidence to support the commission's finding that
claimant proved that he sustained a specific identifiable
incident at work on February 4, 1999, resulting in a back
injury. As fact finder, the commission was entitled to weigh
the evidence, accept claimant's testimony, and to reject any
contrary testimony of employer's witnesses. 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). Because the
commission's finding is supported by credible evidence, we will
not disturb it on appeal.
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II. Medical Treatment
In ruling that employer was responsible for the cost of Dr.
Tate's treatment up through May 12, 1999, the commission found
as follows:
[U]ntil May 12, 1999, the employer did not
provide the claimant with a panel of
physicians although being aware of an on the
job injury. . . . We find no evidence that
Dr. Tate treated the claimant for this
incident after May 7, 1999. We find that
Dr. [Stuart J.] Kramer, who was selected
from the panel, in turn, referred the
claimant to Dr. [Lawrence F.] Cohen, who
then referred him to Dr. [Ramon R.] Erasmo
for a second opinion. Dr. Cohen ultimately
referred the claimant to Dr. [Eduardo]
Fairfield [sic]. We do note, however, that,
inasmuch as the employer denied the claim,
the claimant was free to seek medical
treatment from a physician of his choice.
Therefore, . . . we can find no evidence of
unauthorized medical care.
Contrary to employer's assertions in its brief, the record
established that from the beginning, claimant consistently
reported an on-the-job injury to employer's representatives and
his medical providers. Employer did not offer claimant a panel
of physicians before May 12, 1999, and, therefore, he was
entitled to seek treatment from Dr. Tate from February 1999
through May 12, 1999.
III. Marketing
"In determining whether a claimant has made a reasonable
effort to market his remaining work capacity, we view the
evidence in the light most favorable to . . . the prevailing
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party before the commission . . . ." National Linen Serv. v.
McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989). In
order to establish entitlement to benefits, a partially disabled
employee must prove that he has made a reasonable effort to
procure suitable work but has been unable to do so. Great Atl.
& Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98,
101 (1987). Unless we can say as a matter of law that
claimant’s 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).
It was undisputed that on May 17, 1999, Dr. Kramer released
claimant to light-duty work with restrictions of no lifting more
than fifteen to twenty pounds, no excessive bending, and no
squatting or crawling. Claimant's marketing efforts after May
17, 1999 consisted of seeking light-duty from employer, which
was not available, and attempting to register with the VEC
veterans outreach program. Claimant was advised he was not
eligible for that program until he was released to full-duty by
his physician. Claimant pursued no other means of employment.
He did not seek assistance from employment agencies. He did not
consult newspaper advertisements or complete any applications or
arrange for any interviews.
Contrary to claimant's argument on appeal, the fact that he
was undergoing physical therapy three times per week after May
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17, 1999 did not excuse his obligation to seek suitable
employment.
Based upon this record, we cannot find as a matter of law
that claimant marketed his residual work capacity after May 17,
1999.
For the reasons stated, we affirm the commission's
decision.
Affirmed.
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