Groundwater Tech., Inc. v. John Troy Partin ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
GROUNDWATER TECHNOLOGY, INC., ET AL.
v. Record No. 0094-95-1 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
JOHN TROY PARTIN OCTOBER 3, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Susan B. Potter (Vandeventer, Black, Meredith & Martin,
on brief), for appellants.
Gregory E. Camden (Rutter & Montagna, on brief), for
appellee.
The Workers' Compensation Commission (commission) determined
that John T. Partin (claimant) suffered a compensable accidental
injury, which resulted in both temporary total and temporary
partial disability, and awarded attendant benefits. Groundwater
Technology, Inc. (employer) appeals, arguing that the evidence was
insufficient to support the decision and, further, that the
commission "lacked the authority" to award "unspecified" temporary
partial disability. We find the evidence adequate to support an
award of benefits to claimant, but remand for the commission to fix
an award appropriate to the circumstances.
The parties are fully conversant with the record in this case,
and we recite only those facts necessary to a disposition of the
appeal. "Factual findings by the commission that are supported by
credible evidence are conclusive and binding upon this Court on
appeal." Southern Iron Works, Inc. v. Wallace, 16 Va. App. 131,
*
Pursuant to Code § 17-116.010 this opinion is not designated
for publication.
134, 428 S.E.2d 32, 34 (1993) (citing Code § 65.2-706). Under
familiar principles, we must consider the evidence in the light
most favorable to the prevailing party below, claimant in this
instance. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App.
503, 504, 339 S.E.2d 916, 916 (1986).
"In order to recover on a workers' compensation claim, a
claimant must prove: (1) an injury by accident, (2) arising out of
and (3) in the course of his employment." Kane Plumbing, Inc. v.
Small, 7 Va. App. 132, 135, 371 S.E.2d 828, 830 (1988) (citations
omitted); see Code § 65.2-101. An "injury by accident" requires
proof of "(1) an identifiable incident; (2) that occurs at some
reasonably definite time; (3) an obvious sudden mechanical or
structural change in the body; and (4) a causal connection between
the incident and the bodily change." Chesterfield County v. Dunn,
9 Va. App. 475, 476, 389 S.E.2d 180, 181 (1990). Injuries
resulting from repetitive or cumulative trauma are not compensable
injuries by accident. Merillat Industries, Inc. v. Parks, 246 Va.
429, 433-34, 436 S.E.2d 600, 602 (1993). A "determination of
causation" by the commission is a "factual finding that will not be
disturbed on appeal," if supported by credible evidence.
Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814,
817 (1989).
Here, claimant testified that he experienced a "spike type
pain" in his "lower back," when "coming up from a squatting
position" to shovel a "load of clay into the back of [a] pickup
truck" in the course of his employment. The incident had been
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preceded by "a half hour to 45 minutes" of "shoveling" and "some
muscle tightening" in claimant's back. However, the "spike" pain
was distinctive and caused claimant to terminate the activity and
seek medical attention for persistent "back pain."
The medical evidence reflects a diagnosis of "recurrent
medically intractable left sciatica," following the "onset of
recurrent back pain . . . [when claimant] shoveled . . . wet clay
into a pickup truck." An MRI disclosed a "disk fragment . . .
producing nerve root impingement," which "correlat[ed] well with
[claimant's] complaints and neurologic findings," and surgical
intervention was deemed necessary to "achieve long-term remission
of [the] problem." The subsequent surgery confirmed and corrected
the suspected pathology and was followed by a progressive
resolution of the related symptoms.
Such evidence established that claimant suffered an injury
attributable to an identifiable work related incident at a definite
time which caused an immediate structural change in his body,
consistent with the finding of the commission.
Contrary to employer's assertion, the commission's decision is
not precluded by the deputy commissioner's conclusion that
claimant's credibility was compromised by "inconsistencies" in the
record. The commission may reverse an "explicit finding of
credibility" by a deputy "when it articulates a basis for its
different conclusion that is supported by credible evidence."
Bullion Hollow Enters., Inc. v. Lane, 14 Va. App. 725, 728, 418
S.E.2d 904, 907 (1992). The commission in this instance dismissed
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the "variances" in "claimant's description of . . . his pain" as
"minor," a finding supported by the record.
Nevertheless, we must remand the proceedings for specific
determination of claimant's temporary partial disability award.
Code § 65.2-502 prescribes the formula to ascertain appropriate
weekly compensation for partial incapacity. Code § 65.2-705(A)
requires the commission to "make an award which, together with a
statement of the findings of fact, rulings of law, and other
matters pertinent to the questions at issue, shall be filed with
the record of the proceedings." See also Code § 65.2-101. "A
compensation award is an adjudication of the entitlements and
obligations of the parties." Rossello v. K-Mart Corp., 15 Va. App.
333, 336, 423 S.E.2d 214, 216 (1992); see Chesapeake Bay Seafood
House v. Clements, 14 Va. App. 143, 146, 415 S.E.2d 864, 866
(1992). The commission must, therefore, decide the proper
compensation incidental to its award, attended by the requisite
factual findings. Otherwise, the award remains incomplete.
Accordingly, we affirm the decision of the commission, but
remand for an award of specific temporary partial disability
compensation, accompanied by related factual findings, in
accordance with statute.
Affirmed and remanded.
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