Gray Thomas Craig v. Grand Piano and Furniture, etc ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Duff ∗
GRAND PIANO AND FURNITURE COMPANY, INC. AND
TRANSPORTATION INSURANCE COMPANY
v. Record No. 2010-00-3
GARY THOMAS CRAIG MEMORANDUM OPINION ∗∗
PER CURIAM
GARY THOMAS CRAIG JANUARY 16, 2001
v. Record No. 2043-00-3
GRAND PIANO AND FURNITURE COMPANY, INC. AND
TRANSPORTATION INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Roya Palmer Ewing, on brief), for Grand
Piano and Furniture Company, Inc. and
Transportation Insurance Company.
(Howard A. Herzog, on briefs), for Gary
Thomas Craig.
Grand Piano and Furniture Company, Inc. and its insurer
(hereinafter referred to as "employer") contend that the
Workers' Compensation Commission erred in finding that Gary
Thomas Craig proved he sustained an injury by accident arising
out of and in the course of his employment. Craig contends that
∗
Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
∗∗
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
the commission erred in refusing to amend the deputy
commissioner's determination of his average weekly wage. 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 (Record No. 2010-00-3)
"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). "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.In ruling that Craig proved he sustained a compensable back
injury at work, the commission found as follows:
Although the claimant has had some
uncertainty regarding the date of the
incident, this is not fatal to his claim.
He has consistently related to an accident
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in late-August involving lifting furniture,
having some days off from work, and the golf
incident. The claimant testified that on
August 17, 1998, he experienced sharp pain
when he was lifting a sleeper sofa onto a
dolly. Similarly, on September 3, 1998, he
completed the Employer's First Report of
Accident and detailed an injury in
late-August from "lifting and moving
furniture." In his recorded statement on
September 22, 1998, the claimant verified
that the accident occurred sometime in
late-August 1998 because he was moving
several sleeper sofas and noticed pain. In
his May 21, 1999, answers to
interrogatories, he asserted that he
experienced a burning, stabbing low back
pain on August 21, 1998.
Witness testimony also supports the
claimant's assertions. [Bill] Barker
testified to observing [claimant] limping
and knowing that [claimant] had been working
in the sleeper sofa department. [Fred] Hill
testified that sometime after September 9,
1998, he spoke with the claimant who stated
that he lifted sleeper sofas before the golf
incident. Regardless that pain caused him
to collapse while trying to play golf, there
is no evidence that this activity caused the
back condition.
In rendering its decision, the commission considered the
various medical histories, Craig's testimony, the Employer's
First Report of Accident, Craig's recorded statement to
employer, Craig's answers to interrogatories, and the testimony
of Craig's co-workers. The commission resolved any
inconsistencies in this evidence in favor of Craig. We hold
that Craig's testimony, which was corroborated by the testimony
of Hill and Barker, provides credible evidence to support the
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commission's finding that Craig proved he sustained an
identifiable incident at work which resulted in a back injury.
Thus, those findings, which are sufficient to prove an injury by
accident arising out of and in the course of employment, are
conclusive and binding on appeal. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
II. Average Weekly Wage (Record No. 2043-00-3)
Although Craig asserts that there was a mutual mistake of
fact with respect to the calculation of his average weekly wage
because it did not include sales commissions, we affirm the
commission's ruling.
The hearing in this matter was held on December 2, 1999.
At that hearing, the parties submitted a wage chart from which
it was agreed the deputy commissioner would determine Craig's
average weekly wage. The deputy commissioner issued an opinion
on December 29, 1999.
By letter dated December 31, 1999, Craig asserted that the
deputy commissioner's calculation of his average weekly wage was
incorrect. Craig submitted W-2 forms for the years 1997 and
1998 as a basis for his request that the commission amend his
average weekly wage to include sales commissions. The
commission refused to consider the forms, holding that Craig
failed to prove they were discovered after the hearing or could
not have been discovered before the hearing with due diligence.
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Based upon this finding, the commission denied Craig's request
that it amend his average weekly wage.
Although "an employee's average weekly wage, even after
being agreed to by the parties and set forth in an award of the
commission, is subject to modification upon the grounds of
fraud, misrepresentation, mistake or imposition," Mercy
Tidewater Ambulance Serv. v. Carpenter, 29 Va. App. 218, 226,
511 S.E.2d 418, 421-22 (1999), the commission does not err in
applying the usual standards for considering "after-discovered"
evidence. See Williams v. Peoples Life Insurance Co., 19 Va.
App. 530, 532, 452 S.E.2d 881, 883 (1995). The record proved
that Craig possessed a copy of the wage chart as of December 2,
1999. However, he did not contest its accuracy and he did not
request that his average weekly wage be amended until December
31, 1999, two days after the deputy commissioner issued the
opinion.
Craig provided no explanation for the delay. No evidence
proved that he could not have obtained the W-2 forms in a timely
manner before the hearing. Thus, Craig did not sustain his
burden to timely produce evidence that would justify amending
the average weekly wage as determined by the deputy commissioner
using the wage chart agreed upon by the parties.
For these reasons, we affirm the commission's decision.
Affirmed.
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