CJW Medical Center v. Jacqueline V Payne ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Coleman
CJW MEDICAL CENTER AND
ASSURANCE COMPANY OF AMERICA
MEMORANDUM OPINION*
v. Record No. 3246-02-1 PER CURIAM
APRIL 8, 2003
JACQUELINE V. PAYNE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Lisa Frisina Clement; PennStuart, on brief),
for appellants.
(D. Scott Gordon, on brief), for appellee.
CJW Medical Center and its insurer (hereinafter referred to
as "employer") contend the Workers' Compensation Commission
erred in reversing the deputy commissioner's credibility
determination and finding that Jacqueline V. Payne (claimant)
proved she sustained an injury by accident on November 15, 2001
arising out of and in the course of her employment. Upon
reviewing the record and the parties' briefs, 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 prevailing party below. R.G. Moore Bldg. Corp. v.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "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 S.E.2d 858,
865 (1989). Factual findings made by the commission will be
upheld on appeal if supported by credible evidence. See James
v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d
487, 488 (1989).
In ruling that claimant sustained her burden of proof, the
commission found as follows:
The medical records support the conclusion
that the claimant's low back pain was caused
by "her reported injury at work on November
15, 2001." In the history given by the
claimant to Dr. [Richard M.] Conyers, she
"reported" that she was injured when she was
"bumped" or "shoved" by a fellow employee at
approximately 5:30 p.m. on November 15,
2001. Although she also reported to
Dr. Conyers that she felt more severe pain
at 7:30 p.m. on November 15 when she bent
over to pick up something, it is clear from
the medical records that her pain merely
grew worse at that time-it did not start
when she bent down. Under the
circumstances, we interpret Dr. Conyers'
conclusion that the claimant's low back pain
is "causally related to her reported injury
at work on 11/15/01" as referring to the
injury sustained at the time of the
claimant's impact with Ms. Johnson, the pain
that became more severe later in the
evening.
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The conclusion that the claimant's low
back pain was caused by the incident at
5:30 p.m. is further supported by the
credible testimony given by the claimant at
the hearing. She testified that she felt
pain immediately upon impact with Ms.
Johnson and that the pain continued and
ultimately grew worse when she bent over
approximately two hours later. Nor is
Ms. Johnson's testimony inconsistent with
the claimant's description of her injury.
Although Ms. Johnson denies intentionally
striking the claimant, she concedes it is
possible that she could have accidentally
hit the claimant with the linen she was
carrying.
Claimant's testimony, coupled with Dr. Conyers' medical
records and opinions, constitutes credible evidence to support
the commission's finding that claimant proved she sustained an
injury by accident arising out of and in the course of her
employment on November 15, 2001. "The fact that there is
contrary evidence in the record is of no consequence if there is
credible evidence to support the commission's findings." Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991).
Employer argues that the full commission failed to consider
the credibility findings of the deputy commissioner in finding
that claimant sustained her burden of proving that she suffered
an injury by accident arising out of and in the course of her
employment. Our review of the deputy commissioner's opinion
shows that he did not make any specific credibility
determination based upon the appearance and demeanor of the
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witnesses or the content of the evidence. Rather, he simply
weighed the testimonial and medical evidence, and concluded that
claimant failed to sustain her burden of proof by a
preponderance of the evidence. On review, the full commission
was free to make different findings of fact than those made by
the deputy commissioner. See Virginia Dep't of State Police v.
Dean, 16 Va. App. 254, 257, 430 S.E.2d 550, 551 (1993).
For these reasons, we affirm the commission's decision.
Affirmed.
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