Opinion
Record No. 1149-92-2
April 27, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Arthur V. Shaheen, for appellant.
Barbara J. Balogh (Mary Louise Kramer; Sands, Anderson, Marks Miller, on brief), for appellees.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
David M. Harrison (appellant) appeals from the Workers' Compensation Commission's denial of benefits based on his failure "to establish . . . an identifiable incident causing injury to his knee." On appeal, he contends (1) the commission erred by improperly relying upon medical histories as substantive evidence that his injury resulted from his general work activity rather than from a particular incident arising out of and in the course of his employment, and (2) credible evidence does not support the commission's finding that he did not suffer an injury by accident. Nabisco Brands, Inc. (appellee) contends that appellant's second assignment of error challenging the sufficiency of the evidence is barred from review by Rule 5A:11, because he failed to present this issue in his notice of appeal. For the reasons set forth below, we affirm the commission's decision.
The parties are familiar with the record; consequently, this memorandum opinion recites only those facts necessary to a disposition of the issues before the Court.
I.
Appellant contends the commission improperly considered his medical histories as substantive evidence to support its conclusion that no injury by accident occurred at a specific time and place. The parties agree 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. The history is admissible but only to explain the basis of the doctor's opinion." Board of Supervisors v. Martin, 3 Va. App. 139, 144, 348 S.E.2d 540, 542 (1986). Here, however, neither Dr. Lublin nor the attending physician from St. Mary's testified, so those histories were not admissible for that purpose.
Such evidence "may [also] be used to impeach or corroborate the claimant." Id. Appellee argues that the medical histories were properly used to impeach appellant's version of events. We find that the medical histories could not properly have been introduced to impeach appellant's testimony. Although they do not include any information concerning a specific event resulting in injury, the omission of such information does not directly contradict appellant's testimony, for the histories noted that appellant was working atop rail cars when he first felt pain in his knee. This case is similar to our holding in Kane Plumbing, Inc. v. Small, 7 Va. App. 132, 136, 371 S.E.2d 828, 831 (1988). In that case, the commission noted that "[w]hile . . . the histories did not reflect that a single incident of trauma occurred, . . . [they also] did not sufficiently impeach Small's testimony because they established the causation of Small's injury as 'digging in the ditch as described by [Small].'" Id.
In spite of this fact, however, we hold that the notes made by Nurses Pennycook and Craft were properly admitted to corroborate their testimony before the deputy commissioner that appellant did not report a discrete injury to either of them. Although the notes do not provide conclusive evidence that no discrete injury occurred, the commission was entitled to determine the weight to be given the testimony of the various witnesses on this issue. "[W]e will assume, absent a clear showing to the contrary, that [the statements of Nurses Pennycook and Craft were] used . . . for the proper purpose and not as substantive evidence."Foley v. Harris, 223 Va. 20, 29, 286 S.E.2d 186, 191 (1982) (rejecting Foley's claim that appraiser's testimony as to basis for opinion was improperly used as substantive evidence). Although the commission may have erred in considering Dr. Lublin's history and the emergency room reports as substantive evidence, this error was harmless, for the record contains other credible, properly admitted evidence in support of the commission's decision.
II. A.
Appellant also challenges the sufficiency of the evidence to support the conclusion that he did not suffer an injury by accident. Appellee asserts that we may not consider this assignment of error because appellant failed to include it in his notice of appeal, as required by Rule 5A:11(b). The pertinent part of Rule 5A:11(b) reads as follows: "[A] notice of appeal . . . shall state . . . whether the appellant challenges the sufficiency of the evidence to support the findings of the commission." Appellee argues that the procedure under Rule 5A:11 is analogous to that of Rule 5A:18, which appellee contends bars appellate review of issues not raised in one's petition for appeal. Appellee misconstrues the purpose of Rule 5A:18, which requires that the party assigning error bring it to the attention of the trial court at the time it occurs. The purpose of Rule 5A:18 is to allow correction of an error, if possible, during the trial or hearing, thereby avoiding the necessity of mistrials and reversals. Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232 (1986). Rule 5A:11, by contrast, makes clear that its purpose is to facilitate the preparation of the record on appeal. Subsection (c) of that rule outlines those documents to be included in the record by the clerk of the commission, stating that the clerk need not prepare or certify the transcript unless the notice of appeal states that appellant challenges the sufficiency of the evidence. It is clear, therefore, that this rule is merely procedural. In addition, appellee does not contend that the record on appeal is insufficient to allow our review of appellant's sufficiency claim. The record contains a complete transcript certified by the clerk of the commission. Accordingly, we hold that appellant's failure to include a challenge to the sufficiency of the evidence in his notice of appeal does not bar our review of this issue.
B.
Appellant contends the commission erred in concluding that he did not suffer an injury by accident. In reviewing appellant's challenge to the sufficiency of the evidence, we are guided by the principle that decisions of the commission as to questions of fact are conclusive and binding upon this Court if supported by credible evidence. Code § 65.2-706; see also Manassas Ice Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991). We must view the evidence in the light most favorable to the employer, as the prevailing party below, and "[t]he fact that contrary evidence may be found in the record is of no consequence if credible evidence supports the commission's finding." Id. at 229, 409 S.E.2d at 826 (citations omitted).
In order to prove an injury by accident, a claimant must show: (1) an identifiable incident; (2) a sudden mechanical or structural change in the body; and (3) a causal connection between the incident and the bodily change. See Lane Co. v. Saunders, 229 Va. 196, 199, 326 S.E.2d 702, 703 (1985);Kraft Dairy Group, Inc. v. Bernardini, 229 Va. 253, 255-56, 329 S.E.2d 46, 48 (1985) (per curiam). In both cases, the commission concluded that appellants failed to provide sufficient evidence as to the first prong of the test, Saunders, 229 Va. at 199, 326 S.E.2d at 764; Kraft, 229 Va. at 256, 329 S.E.2d at 47, which requires proof of "an identifiable incident that occurs at a reasonably definite time." Saunders, 229 Va. at 199, 326 S.E.2d at 703.
We hold that the record contains credible evidence from which the commission could have concluded that no identifiable incident occurred. The commission reasonably could have concluded that the facts of this case were similar to those inKraft Dairy Group, Inc. v. Bernardini, 229 Va. 253, 256, 329 S.E.2d 46, 48 (1985) (per curiam), in which the Court concluded that the claimant's lifting of heavy loads over a two-month period failed to establish an "accident, identifiable incident, or sudden precipitating event" to which her injury could be attributed. In this case, as in Kraft, the evidence showed that appellant had been engaged in his normal work duties. Although he testified that when he arose from a kneeling position, he felt a sharp pain, he also testified that
it's done it before because of kneeling on the grids or having to kneel on these hatches to turn the belt — the buckles or whatever. So, I didn't — I don't pay a lot of attention to it when it happens. I didn't really fall. I didn't slam my knee against anything.
In addition, Nurses Pennycook and Craft both testified that appellant never told them that he first experienced pain while kneeling atop the rail cars. Based on this testimony, the commission drew the following conclusion:
The only evidence we have as to a specific incident causing the claimant's knee problem is his own testimony. Even his testimony to some extent relates his problem to the whole process he goes through in climbing on the cars and taking the readings. . . . [W]e are not willing to make a finding that he has sustained an injury by a particular incident but rather his problem has developed through his general work activity.
Viewing the evidence in the light most favorable to the employer, we hold that the record contains credible evidence from which the commission could have concluded that appellant did not suffer an injury by accident.
For the aforementioned reasons, we affirm the decision of the commission.
Affirmed.
I concur in Part II and in the affirmance of the commission's decision.
I do not agree with that portion of Part I of the opinion that holds that the commission improperly admitted and considered the medical histories. It has long been the rule in workers' compensation cases in Virginia that hearsay evidence is admissible and "that an award may be made on hearsay evidence alone, if credible, and not contradicted." Humphries v. Boxley Bros. Co., 146 Va. 91, 95, 135 S.E. 890, 891 (1926). Consistent with that rule, the Rules of the Workers' Compensation Commission specifically state that "hearsay evidence may be received." Rule 1(A). This Court has also held that "Rule 1 of the . . . Commission, enacted pursuant to Code § 65.1-18, correctly permits the use of hearsay evidence without corroboration." Franklin Mortgage Corp. v. Walker, 5 Va. App. 95, 99, 360 S.E.2d 861, 864 (1987), aff'd, en banc, 6 Va. App. 108, 367 S.E.2d 191 (1988).
The majority relies upon the broad language in Board of Supervisors v. Martin, 3 Va. App. 139, 348 S.E.2d 540 (1986) condemning the commission's use of hearsay. However,Martin held only "that on the facts of [that] case the doctor's report was impermissibly used by the Commission as evidence of a fact that the report was not offered in evidence to prove."Id. at 144-45, 348 S.E.2d at 543. The analytical difficulty posed by Martin lies in reconciling its disclaimer that "[w]e are not holding that reliable hearsay evidence, permitted under Rule 1 . . ., is not appropriate where its use comports with the intent of the rule," with its unequivocal statement that "a doctor's history taken from a claimant . . . 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 144-45, 348 S.E.2d at 542-43. To the extent thatMartin is construed to bar the use of such hearsay at the commission's hearings, it is contrary to existing authority.See id. at 150-51, 367 S.E.2d at 546 (Benton, J., dissenting);Humphries, 146 Va. at 95, 135 S.E.2d at ___. See also 3 Arthur Larson, The Law of Workmen's Compensation §§ 79.10 through 79.21 (1993).
Because the majority opinion in this case reaches the appropriate result, albeit by way of a harmless error analysis in Part I, I concur in the result. Thus, I would also affirm the commission's denial of an award to the employee.