Opinion
Record No. 2165-92-4
March 9, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jerry O. Talton, on brief), for appellant. Appellant submitting on brief.
(Nancy Repa Toker; Wochok, Robertson, Notarius McNeal, on brief), for appellees. Appellees submitting on brief.
Present: Judges Benton, Coleman and Willis
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
On appeal from a decision of the Workers' Compensation Commission, reversing the judgment of the deputy commissioner and denying her benefits, Angela R. Bolton contends that the commission erred in finding that her testimony and that of her co-employee, Sue Ann Colton, was not credible, and in entering an award which was not supported by the evidence. We agree. We reverse the commission's decision and remand this case for entry of an award in favor of Bolton.
Bolton, a senior statement processor employed by Continental, testified that on May 25, 1990 she injured her lower back. She described the incident as follows:
We had a cycle that morning. So Sue Ann and I went over into information systems to get our statements, which are checking account statements. And we went over there together and I bent down and I picked up the first box, and I mentioned to Sue Ann that they seemed heavier than usual, and she went ahead and helped me . . . she went ahead and picked up hers, and then I picked up the last one, and on my way up I kind of felt like a pull or something like maybe a tingle or something. But it wasn't . . . paralyzing, it wasn't severe. And then we went over to where we worked, which is statement rendering, and I bent down to pick up the box off the dolly, the one on top, and on my way up I felt another pull that was a bit stronger, but it wasn't a pain . . . it wasn't a bad pain. And I hurried up and I put it up on the table, and then Sue Ann did the rest. I kind of stood there for a minute until I felt better.
Bolton testified that she then went to her desk and did some paperwork. At that time, she took a nonprescription painkiller to relieve the discomfort that she felt from the pulls. She then went to lunch. Upon returning from lunch she went to the restroom, entered a stall and placed her purse on the floor. She testified that, at this point, she experienced the "worst pain in my whole life." She described this incident as feeling as though she were stuck and could not sit down or stand up.
As Bolton was led from the restroom, she was crying and in obvious distress. She immediately told her supervisor, Todd Coyne, about the pain she had experienced in the bathroom and about the pulls she had felt earlier while lifting the boxes. Bolton left work later that day because she was in so much pain. The next morning, she sought treatment at the Warren Memorial Hospital emergency room and was seen by Dr. J. Zoller.
Bolton testified that she mentioned the pulls to her co-worker, Colton, who was with her at the time. She stated that the boxes she lifted each weighed between forty and forty-five pounds. She stated that she was required to do lifting between two and three times a week.
Colton testified that on the morning of May 25, 1990, she went with Bolton to information systems to get the checking statements. Colton testified that when Bolton picked up the first box, she commented that it seemed heavier than normal. Colton picked up the second box, and agreed that the boxes were heavier than normal. When Bolton picked up the third box, she stated that she felt a pull or tingle in her back, and Colton helped her put the box on the dolly. They left information systems and returned to statement rendering. Colton testified that when Bolton picked up the first box to put it on the table, she said that she felt another pull that was worse than the first one. Colton testified that after lunch, Bolton returned from the bathroom crying, and that Bolton told her supervisor about the pain in the bathroom and the pulls that she had felt earlier while lifting the boxes.
In an accident report dated May 30, 1990, taken by Bolton's supervisor over the telephone, Bolton described the pain that she felt in the bathroom when she bent over, but did not mention the pulls that she had felt earlier while lifting the box. Explaining this statement, Bolton testified that she thought that the question focused on when she felt almost paralyzed, and that she concentrated, therefore, on the part of the incident that occurred in the bathroom.
In a recorded statement taken by Paul Dubrow of Travelers Indemnity Company, Bolton denied that she had felt any pain in her back before going into the bathroom. However, she did tell Dubrow that she had been lifting boxes weighing around forty pounds earlier that day.
Bolton's accounts of her injury given to the Warren Memorial Hospital emergency room, to Dr. Zoller and to Dr. Henry Jackson are consistent with her testimony at the hearing. The emergency room report shows that Bolton mentioned having back pain at work while lifting boxes. On June 10, 1990, Bolton told Dr. Zoller that she had been lifting some boxes, went to the bathroom and put her purse on the floor, and then could not straighten up. On April 25, 1991, when she first saw Dr. Jackson, she told him that she had injured herself at work when she picked up three boxes weighing forty-five pounds each and felt something in her back.
A November 15, 1991 MRI showed that Bolton sustained a ruptured disc at the L5-S1 level on the right. At the hearing, Dr. Jackson opined that Bolton had ruptured the disc when lifting the boxes. He testified that the lifting episode in the morning caused a tear in the lining of the outside wall of the disc and that as time went on, the rupture came through the tear. Dr. Jackson testified that merely bending over would not have caused the rupture. He stated, however, that lifting a heavy object could cause a ruptured disc.
On appellate review, we construe 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). We must uphold the commission's findings of fact if they are supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). "However, if no credible evidence exists in support of a factual finding, the issue of sufficiency of the evidence is one of law for this Court to decide." Spruill v. C.W. Wright Constr. Co., 8 Va. App. 330, 333, 381 S.E.2d 359, 360 (1989) (citation omitted). "In order to carry his burden of proving an 'injury by accident,' a claimant must prove that the cause of his injury was an identifiable incident or sudden precipitating event and that it resulted in an obvious sudden mechanical or structural change in the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989) (emphasis in original, citations omitted).
No credible evidence supports the commission's finding that Bolton did not prove an injury by accident. The record sufficiently proves that Bolton sustained a compensable injury by accident and not by cumulative trauma. Her testimony is corroborated by Colton and by the medical records. There is no basis for the commission's conclusion that Bolton and Colton were not credible witnesses.
Continental argues that the recorded statement and the accident report support the commission's finding that Bolton was not credible. However, the recorded statement is not inconsistent with Bolton's testimony and her evidence that the day after the incident at the emergency room she gave the same account of having felt pain when she lifted boxes. Although in her first report of the accident and in her statement to the insurance adjuster Bolton understandably focused on the more severe pain that she felt in the bathroom, that account was not inconsistent with her initial account or with her testimony. On both occasions, she also mentioned the pain she experienced in the bathroom. Bolton explained why, in the accident report, she also focused on the pain that she felt in the bathroom. This report does not support a determination that Bolton was not a credible witness.
Colton admitted that she had been laid off by Continental and that she is a distant relative of Bolton's. She testified that she and Bolton see each other socially on an infrequent basis. This does not support the commission's finding that Colton had been discharged from her job or that she was a close social friend of Bolton's. The mere fact that she had been laid off by Continental and that she was a distant relative of Bolton's is not a sufficient basis for finding that she was not a credible witness.
For the reasons stated, we reverse the commission's decision and remand for entry of an award in favor of Bolton.
Reversed and remanded.