Opinion
Record No. 0919-92-4
April 6, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Kathryn A. K. Untiedt (John K. Coleman; Slenker, Brandt, Jennings Johnston, on brief), for appellant.
Kelly A. Saunders (Carr, Goodson Lee, P.C., on brief), for appellees.
Present: Chief Judge Koontz, Judges Barrow and Moon.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Jeffrey Grose (Grose), claimant, appeals from the decision of the Workers' Compensation Commission (commission) denying his application for benefits. On appeal, Grose contends that no credible evidence supports the commission's finding that he failed to prove an injury by accident. Additionally, Grose claims that the commission improperly considered hearsay evidence in his medical history in finding that no injury by accident occurred. We disagree and affirm the decision of the commission. Because the parties are familiar with the facts of the case, we restate only those facts necessary to explain our holding.
"In order to establish entitlement to compensation benefits, the claimant must prove, by a preponderance of the evidence, an injury by accident which arose out of and in the course of his employment." Classic Floors, Inc. v. Guy, 9 Va. App. 90, 95, 383 S.E.2d 761, 764 (1989). "An 'injury by accident' is established by showing 'an identifiable incident that occurred at some reasonably definite time and that such incident caused an obvious sudden mechanical or structural change in the body.'"Id. (quoting McFeely Hardwoods Lumber v. Miller, 4 Va. App. 334, 337, 358 S.E.2d 178, 179 (1987)). The commission's factual findings are conclusive and binding on appeal when supported by credible evidence. Id. Moreover, "[w]here reasonable inferences may be drawn from the evidence in support of the commission's factual findings, they will not be disturbed by this Court on appeal." Hawks v. Henrico County School Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).
The commission found that Grose did not meet his burden of proving an injury by accident. The commission did not err in its findings because the evidence did not show an injury resulting from an identifiable incident. Grose could not recall whether he was picking up a diving board or a bag of sand, even though Grose admitted that there is a significant difference in the weight of these objects. Moreover, certain inconsistencies in the medical records underscore Grose's inability to identify the incident that resulted in his injury. The Emergency U.S.A. records indicate that Grose denied injury. Furthermore, although Grose testified that he did not experience any problems with his back after August 1988, the medical records indicate that the last treatment for Grose's prior back injury occurred on November 17, 1989. We hold that these facts, and the inferences reasonably drawn from these facts, provide credible evidence supporting the commission's decision that Grose failed to prove a specific injury which occurred as a result of a particular event at a particular time.
Relying on Board of Supervisors v. Martin, 3 Va. App. 139, 348 S.E.2d 540 (1986), Grose also contends that the commission improperly used the medical histories to determine how the accident occurred. In Martin, we stated that "a doctor's history taken from claimant or others is not evidence upon which the Commission should rely to determine how the accident occurred, because it is impermissible hearsay if used for that purpose."Id. at 144, 348 S.E.2d at 542. However, we stated that such a history may be used to impeach the claimant. Id. Here, the commission relied upon the medical histories to impeach Grose's credibility. The commission noted that "[Grose's] testimony is indefinite and . . . is not persuasive or in conformity with the historical records kept by treating physicians." The commission, like the deputy commissioner, considered several inconsistencies between the medical histories and Grose's testimony. Because these inconsistencies affected Grose's credibility, the commission did not use the medical histories for an improper purpose.
For these reasons, the commission's decision denying Grose's application for benefits is affirmed.
Affirmed.