Record No. 1485-92-4
December 8, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Frederick M. Bruner; Law Offices of E. Wayne Powell, on brief), for appellants. Appellants submitting on brief.
(A. Thomas Lane, Jr.; Abbott Lane, on brief), for appellee. Appellee submitting on brief.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Deputy Commissioner Hayes denied James W. McAlister's request for an award of benefits, finding that he had failed to prove a compensable, work-related injury. The Workers' Compensation Commission reversed this decision and awarded temporary total disability benefits for the period of September 16, 1991 through November 23, 1991. On appeal, the employer contends that the full commission failed to give the reason for its reversal of the deputy commissioner's credibility finding. The employer also contends that McAlister did not prove that his injury arose out of and in the course of his employment. We disagree with the employer's contentions and affirm the commission's decision.
On September 15, 1991, McAlister attempted to lift a box at work and felt lower back pain. Unable to continue working, he reported the accident and sought medical treatment from Dr. McNamara at Rockingham Memorial Hospital. Dr. McNamara diagnosed acute lumbar strain and ordered bed rest until September 20, 1991. On September 17, 1991, Dr. Malone, who previously had treated McAlister, placed him on "no-work" status from September 21 until September 23, 1991, the date of McAlister's next appointment with Dr. Malone. On September 23, 1991, Dr. Malone referred McAlister to Dr. Jane for neurosurgical evaluation. On September 27, 1991, upon McAlister's request, Dr. Malone released him to work with restrictions. Upon his return, McAlister found that he could not adequately perform his work.
Dr. Jane referred McAlister to a physical therapist and, pending diagnostic studies, instructed him to discontinue work. The studies showed no need for surgical intervention. Dr. Jane released McAlister to return to unrestricted work on November 23, 1991. In a January 24, 1991 letter, Dr. Jane affirmatively answered the question, "When you stated in your letter of January 16, 1992 that, `we did not find anything wrong with Mr. McAlister,' did you mean you did not find anything which required surgical intervention?".
McAlister's testimony regarding his medical history was contradictory. Although he admitted a prior ruptured disc, which required two surgeries in 1984, he denied being hospitalized in 1986 for back problems suffered while working for another employer. He later testified that he had mistakenly confused the dates of his injury and that this hospitalization related to his previous surgeries. Nevertheless, the commission found that the record clearly established an injury by accident, occurring at a specific time and place, resulting in McAlister's disability. Although McAlister confused the dates of his previous injuries, the commission found his testimony credible, because it was consistent with the medical treatment performed on the day of the injury.
Citing Goodyear Tire Rubber Co. v. Pierce, 5 Va. App. 374, 363 S.E.2d 433 (1987), the employer first contends that the full commission is bound by the deputy commissioner's findings as to McAlister's credibility.
[A] specific, recorded observation of a key witness' demeanor or appearance in relation to credibility is an aspect of the hearing that the commission may not arbitrarily disregard. When the commission does not follow such a finding, the record should indicate that the commission did not arbitrarily ignore the finding.
Id. at 382, 363 S.E.2d at 437.
We do not hold as a matter of law that the commission must hear evidence in order to reverse a decision on the grounds that the deputy commissioner incorrectly assessed a witness' credibility. However, we believe that when it does reverse a decision on such a basis, it should be evident from the record how the commission resolved the credibility issue consistent with the deputy's observations. When the deputy commissioner's finding of credibility is based, in whole or in part, upon the claimant's appearance and demeanor at the hearing, the commission may have difficulty reversing that finding without recalling the witness. On the other hand, if the deputy commissioner's determination of credibility is based on the substance of the testimony and not upon the witness' demeanor and appearance, such a finding is as determinable by the full commission as by the deputy.
Id. at 383, 363 S.E.2d at 438.
The deputy commissioner found as follows: "[T]he claimant's evidence of a new lower back injury on September 15, 1991 is questionable. He says he is estimating the weight of the box which he lifted. . . . [H]is credibility is questionable based on the number of memory lapses which he demonstrated on the witness stand." This finding was based, not on McAlister's demeanor, but on the substance of what he said.
The full commission held as follows: "The claimant cannot be faulted for confusion regarding the dates of follow-up medical treatment after surgery some six years earlier. The claimant did not recall the exacerbation of his back symptoms in 1986 and denied that he was performing the work indicated in medical histories regarding that incident. This, however, raises no credibility questions regarding his testimony as to his current injury. . . . We find nothing in the record to support the deputy commissioner's finding that the claimant's credibility is questionable." This finding is based upon an analysis of McAlister's testimony and the circumstances governing his recollection. It is consistent with the holding inGoodyear.
The commission's findings are supported by credible evidence and must be upheld. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). Although discrepancies existed in McAlister's testimony, the commission found him credible regarding his current injury. He testified that while lifting an object at work, he experienced sudden pain radiating down both legs. Dr. McNamara diagnosed an acute lumbar strain. The medical treatment received that same day corroborates the commission's findings.
The employer also argues McAlister failed to prove an injury by accident, because he did not satisfy the third part of the test set forth in Bradley v. Philip Morris, U.S.A., 1 Va. App. 141, 144, 336 S.E.2d 515, 517 (1985), requiring a claimant to establish a causal connection between the incident and the bodily change. We disagree. The evidence clearly established that McAlister suffered severe pain at work while attempting to lift a box. He testified that he felt a "pop" in his back. On the day of his injury, Dr. McNamara diagnosed an acute lumbar strain. Dr. Jane ordered physical therapy, although he concluded that the injury would not require surgery. The commission's decision that McAlister suffered an "injury by accident" is supported by credible evidence and will not be disturbed on appeal. See Capitol Steel, 8 Va. App. at 515, 382 S.E.2d at 488.
For these reasons, we affirm the commission's decision.