Dynair C.F.E. Services, Inc. v. Perry Lee Rempas ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
DYNAIR C.F.E. SERVICES, INC.
v. Record No. 0437-95-1 MEMORANDUM OPINION*
BY JUDGE JOSEPH E. BAKER
PERRY LEE REMPAS NOVEMBER 14, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Kimberley Herson Timms (F. Nash Bilisoly;
Vandeventer, Black, Meredith & Martin, on briefs),
for appellant.
Jimese L. Pendergraft (Knight, Dudley, Dezern &
Clarke, P.L.L.C., on brief), for appellee.
In this appeal from a decision of the Workers' Compensation
Commission (commission), Dynair C.F.E. Services, Inc. (employer)
contends that Perry L. Rempas (claimant) failed to prove a
compensable injury by accident and, therefore, the commission
erred when it found that claimant was entitled to compensation
benefits. Employer also asserts that the commission erroneously
disregarded "medical histories of how the injury occurred."
Finding no error, we affirm the decision of the commission.
An examination of the record discloses that on May 31, 1994,
employer filed its First Report of Accident which contains the
following:
____________________
*Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
Date of injury 3-25-94
Nature and Cause of Accident lifting mail
How injury occurred unknown,
employee
complained of
back pain
Nature of injury back injury
Physician 1 Dr. Neff
On June 27, 1994, claimant filed a claim for benefits
stating he was injured on March 25, 1994 at a time that he "was
lifting a bag of mail when he felt a sharp pain in his back."
Request for a hearing was made by claimant's counsel. The
request was granted and a hearing was held before a deputy
commissioner on September 7, 1994.
The deputy commissioner's opinion related that claimant
"recalled that he felt a sharp pain in his back as he loaded the
bags into the plane." The deputy's opinion further stated:
In his deposition, [claimant] was not able
to specify whether he was outside the plane
or inside of it and, at one point, could not
remember where he was working when he first
felt the back pain. [Claimant] could not
give a clear explanation for this difference
between his deposition and hearing testimony.
[Claimant] also gave a recorded statement to
the carrier on April 21, 1994 in which he
said that he hurt his back "lifting some bags
and stuff." In both the statement and the
deposition, [claimant] consistently stated
that his back started hurting "all of a
sudden."
1
Dr. Neff was claimant's treating physician.
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The opinion also included a quote from Dr. Neff's first visit
note:
[Claimant] noted back pain at work
approximately two weeks ago, on March 31,
1994. The patient loads airplanes, which
includes pulling and pushing all day at work.
There was no specific trauma, but he did
note low back discomfort while at work. 2
Dr. Neff ordered an MRI and an EMG. The deputy's opinion
further discloses that:
[Claimant] underwent the EMG on April 26,
1994. Rick Nielsen, who conducted the test,
recorded a history from [claimant] and noted
that [claimant's] problems "started without
specific incidence of accident, injury, or
trauma." The EMG revealed the possibility of
an L5-S1 nerve root compromise.
The deputy concluded that claimant had not proved that he
suffered an injury by accident as defined by Code § 65.2-101
because claimant could not identify the specific action he was
performing when he was injured. He added that he found that
claimant's testimony at the hearing was not sufficiently credible
to "overlook" discrepancies between claimant's testimony and the
medical records from claimant's treating physician that
"contradict" claimant's testimony. The deputy added that
claimant's testimony, even if credible, would not meet his burden
of proof.
2
The deputy's opinion does not reference Dr. Neff's Medical
Assistant History taken the same day as the above quote; however,
in employer's brief, employer asserts that history shows:
"Patient's account of injury: no trauma." Employer's brief fails
to show the complete sentence which further provides: "--sudden
onset of low back pain."
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On appeal, the full commission reviewed the record and
disagreed with the deputy's conclusion. In its opinion, the
commission noted that claimant testified "he experienced a
sudden, disabling low back pain while lifting a specific bag of
mail." As noted by the commission, there was other evidence
supporting claimant's testimony that he experienced "sudden
pain."
While the deputy reported that the medical records from
claimant's treating physician contradict his testimony, the
commission placed "little, if any, reliance on the medical
histories as evidence of how the injury occurred." Our
examination of the history taken by the medical assistant might
well be claimed to support either the position of the employer
(depending upon the meaning of the word "trauma") or claimant (to
show there was a "sudden onset of low back pain").
It is clear that on appeal we view the evidence in the light
most favorable to claimant as the prevailing party below, R.G.
Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d
788, 788 (1990), and the commission's findings of fact are
conclusive and binding on this Court if they are supported by
credible evidence. James v. Capitol Steel Constr. Co., 8 Va.
App. 512, 515, 382 S.E.2d 487, 488-89 (1989). The fact that
contrary evidence may be found in the record is of no consequence
if credible evidence supports the commission's finding. Bean v.
Hungerford Mechanical Corp., 16 Va. App. 183, 186, 428 S.E.2d
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762, 764 (1993). However, in order to meet claimant's burden of
proving an injury by accident, he must prove the cause of his
injury was an identifiable incident or sudden precipitating event
and that it resulted in an obvious and sudden mechanical or
structural change in is body. See Morris v. Morris, 238 Va. 578,
589, 385 S.E.2d 858, 865 (1989).
Here, the commission accepted claimant's testimony that
while at work, loading bags of mail onto an airplane for
employer, on March 25, 1994, he "lifted a bag up and . . . had
this sharp pain in [his] back." Claimant's deposition taken by
employer prior to the hearing further revealed that, while to
some extent contradictory to the above, claimant said that he
"picked up a bag, and I was tossing it and then all of a sudden I
had a sharp pain." The medical assistant's notes also tended to
support the "sudden onset of low back pain."
We hold that there is credible evidence in this record that,
if believed, proves the cause of the injury was an identifiable
incident, to wit, lifting a bag of mail while performing his work
assignment for employer on March 25, 1994 that precipitated
sudden pain in his lower back that subsequently, by MRI and EMG
tests, was shown to be a herniated disc. From the evidence, we
cannot say that the commission erred in awarding compensation
benefits for this claim.
Employer further asserts that the commission erred when it
disregarded the medical history. The commission is required to
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consider the medical history in reaching its conclusion. See
McMurphy Coal Co., et al. v. Miller, 20 Va. App. 57, 455 S.E.2d
265 (1995). Here, the indication is that the commission
considered that history but gave "little, if any" weight to its
contradictory significance. We find no reversible error
resulting from the commission's finding that the medical history
did not override claimant's direct testimony.
For the reasons stated, the decision of the commission is
affirmed.
Affirmed.
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