Opinion
Record No. 2138-94-4
Decided: March 14, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(David A. Walsh; Hunton Williams, on briefs), for appellant. Appellant submitting on brief.
(Christopher Paul Schewe; Cake, Rhoades Schewe, on brief), for appellee. Appellee submitting on brief.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
USAir, Inc. (employer) appeals from a decision of the Workers' Compensation Commission awarding benefits to Marilyn Johnson-Fodor (claimant) for a November 4, 1992 right arm injury. On appeal, employer contends that (1) the commission, without articulating its reasons for its decision, erred in rejecting the deputy commissioner's finding that claimant's testimony describing a November 4, 1992 injury by accident was not credible; and (2) no credible evidence supports the commission's finding that claimant sustained an injury by accident to her right arm arising out of and in the course of her employment on November 4, 1992. Finding no error, we affirm.
Claimant worked for employer as a flight attendant. On February 2, 1990, she sustained a right elbow injury when she struck her elbow against the corner of a wall while pulling a cart. Dr. Edward G. Alexander, an orthopedic surgeon, diagnosed claimant as suffering from tennis elbow. In June 1990, Dr. Alexander performed simple lateral release surgery on claimant's right elbow. In September 1990, claimant returned to her regular work. From September 1990 until November 4, 1992, claimant was able to carry out all of her flight attendant job duties, and did not seek any medical treatment for her right elbow or arm.
There is no evidence that claimant filed a workers'compensation claim as a result of this incident.
Claimant testified that, beginning in September 1992, she began to experience right elbow and arm pain. She stated that the pain was intermittent and occurred when she performed strenuous activities with her right arm. However, she stated that, prior to November 4, 1992, the pain was tolerable and she was able to perform her job duties. Claimant testified that, on November 4, 1992, while working on a flight destined for Pittsburgh, she grabbed a beverage cart, pulled it forward, and felt excruciating pain radiating from her right elbow up to her shoulder and down to her wrist. She stated that she had been serving beverages for approximately twenty to thirty minutes prior to this incident. Immediately after the flight ended, claimant called her supervisor and reported that she had hurt her right arm. Thereafter, claimant did not return to work.
On November 9, 1992, claimant returned to Dr. Alexander complaining of right elbow pain of a three-month duration. Dr. Alexander diagnosed recurrent tennis elbow. On December 15, 1992, claimant was examined at employer's request by Dr. Stephen R. Shaffer, an orthopedic surgeon. Dr. Shaffer reported that claimant had experienced recurring right elbow symptoms which had gradually worsened until she was required to stop working on November 4, 1992. Dr. Shaffer opined that this constituted a flare-up of claimant's February 1990 injury, rather than a new injury. On February 9, 1993, Dr. A. Lee Osterman, a hand surgeon, performed surgery on claimant's right elbow. During the surgery, Dr. Osterman noted that an area had pulled off the bone and there was radial nerve involvement, which had not previously occurred. Thus, Dr. Osterman concluded that claimant sustained a new injury in a previously injured area, rather than a recurrent injury. In an October 7, 1993 letter to claimant's attorney, Dr. Alexander related that he had reviewed the reports of Drs. Shaffer and Osterman. Based upon this review and his treatment of claimant, Dr. Alexander opined that claimant had sustained a new injury superimposed on an underlying condition. Dr. Alexander stated that after the 1990 surgery, claimant did well "until she injured herself in probably October 1992, while pushing a beverage cart."
The deputy commissioner found that claimant's testimony of an injury by accident lacked credibility because she never related her symptoms to pulling a single beverage cart on a particular flight, as claimed in her testimony before the commission, to any of her treating physicians. The deputy commissioner found that claimant's account to her physicians had consistently been of a gradual increase in her symptoms that progressed to the point that it was unbearable on November 4, 1992. The full commission reversed and awarded claimant temporary total disability benefits.
I. Credibility Determination
"If, [as in this case], the deputy commissioner's determination of credibility is based upon the substance of the testimony rather than upon the witness's demeanor, such a finding is as determinable by the full commission as by the deputy." Kroger Co. v. Morris, 14 Va. App. 233, 236, 415 S.E.2d 879, 880 (1992).
The deputy commissioner found it difficult to believe that the claimant could provide specific details of a particular incident occurring on November 4, 1992 during her testimony, yet she did not provide this same information to her various treating physicians. The deputy commissioner's determination that claimant's assertion of an injury by accident was not credible was based on the evidence and the substance of claimant's testimony, rather than on her appearance or demeanor. Therefore, the full commission could make its own credibility determination. Id. Claimant's testimony provides credible evidence to support its finding.
II. Injury by Accident
Employer next contends that claimant failed to carry her burden of proving an injury by accident arising out of and in the course of her employment on November 4, 1992. On appeal, we view the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). This Court "will not disturb the commission's findings so long as credible evidence supports those findings, even though the evidence would support a contrary finding." Kroger Co., 14 Va. App. at 236-37, 415 S.E.2d at 881. Credible evidence supports the finding of the full commission.
During her testimony, claimant described a specific incident, in and during the course of her employment, which caused her to sustain severe right elbow pain. She testified that she sustained severe right elbow pain while pushing a beverage cart during a specific flight on November 4, 1992. She promptly reported this to her supervisor.
Dr. Alexander, claimant's initial treating physician, opined that claimant sustained a new injury superimposed on an underlying condition. He reported that claimant injured her elbow "in probably October 1992, while pushing a beverage cart." Dr. Osterman opined that, based upon the history given to him and his surgical findings, claimant sustained a new injury in a previously injured area, not a recurrent injury. His conclusion was supported by evidence found during the surgery that an area had pulled off the bone, and that there was radial nerve involvement which had not previously occurred. Dr. Osterman reported that claimant told him that, after her February 1990 right arm injury, she had returned to work and carried out all of the duties of a flight attendant, until she had to leave work on November 4, 1992 because of new and intense symptoms in her right elbow.
The full commission could reasonably infer from claimant's testimony, along with the medical reports and opinions of Drs. Alexander and Osterman, that claimant sustained an identifiable incident on November 4, 1992 which caused an obvious sudden mechanical or structural change in her body. "Where 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 Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).
We find no error and affirm the commission's decision.
Affirmed.
I respectfully disagree with the majority and would reverse the commission and dismiss the claim because the commission did not sufficiently articulate a reason for rejecting the deputy's finding. See Goodyear Tire Rubber Co. v. Pierce, 5 Va. App. 374, 363 S.E.2d 433 (1987).