Opinion
Record No. 1596-94-4
Decided: January 24, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert C. Baker, Jr.; Mell Brownell, on brief), for appellants. Appellants submitting on brief.
(Wesley G. Marshall; Charles W. O'Donnell; Peter M. Sweeny Associates, on brief), for appellee. Appellee submitting on brief.
Present: Judges Benton, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
America On-Line, Inc. and its insurer (hereinafter collectively referred to as "employer") appeal a decision of the Workers' Compensation Commission awarding benefits to Thomas G. Smith. Employer contends that the commission erred in finding that (1) Smith proved a compensable injury by accident; (2) Smith was disabled as a result of the January 25, 1993, injury by accident; and (3) Smith did not voluntarily remove himself from the labor market. Finding no error, we affirm the commission's decision.
I. Standards of Review
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). Factual findings made by the commission will be upheld on appeal if supported by credible evidence. James v. Capitol Steel Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). Questions raised by conflicting medical opinions are questions of fact. Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986).
II. Injury by Accident
Smith testified that, on January 25, 1993, he slipped and fell on the wet floor of a restroom on employer's premises. In describing the fall, Smith stated that, "I turned the handle and pushed it and just went to step in and my legs went straight out from under me. I did in essence a split." Smith left the restroom and informed his supervisor of the accident. Smith's supervisor was not called as a witness to dispute Smith's testimony.
Employer contends that Smith did not prove an injury by accident because his testimony concerning his unwitnessed fall was uncorroborated. Employer also contends that the commission should not have believed Smith's testimony because he had sustained two work-related injuries in the past. One of them was caused by a fall that was also unwitnessed.
In holding that Smith proved a compensable injury by accident, the commission found that his testimony was credible. Unless a witness's testimony is incredible as a matter of law, "the determination of a witness' credibility is within the fact finder's exclusive purview." Goodyear Tire Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987). Smith's testimony was consistent with the recorded medical histories and a recorded statement he made two weeks after the incident. That Smith suffered a prior similar work-related accident did not render his testimony incredible as a matter of law. Smith's testimony constitutes credible evidence to support the commission's finding that he proved a compensable injury by accident.
III. Disability
The commission found that Smith proved he was entitled to temporary partial disability from May 16, 1993, until November 16, 1993. He also proved entitlement to temporary total disability from January 25, 1993, until May 15, 1993, and continuing from November 17, 1993. In making those findings, the commission accepted the opinion of Dr. Montague Blundon, III, the treating orthopedic surgeon, who consistently opined that Smith was disabled from working because of palpable back spasms. The commission rejected the contrary opinion of Dr. David C. Johnson, who examined Smith on two occasions at employer's request.
The commission was entitled to give greater weight to the treating physician's opinions. Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986). Dr. Blundon's opinions provided credible evidence to support the commission's finding that Smith was disabled for the periods alleged.
IV. Removal from Labor Force
Employer contends that the commission erred as a matter of law when it failed to find that Smith voluntarily removed himself from the labor market by incorporating an entity named "Project Destiny" and by performing proofreading and editing work on a book for a friend.
Smith's pre-injury job as a customer service representative required him to respond to customer inquiries while seated in a swivel chair in front of a computer terminal. At times, he was required to leave his computer and communicate with other employees, however, the majority of his work was conducted in a sitting position during eight-hour shifts, Monday through Thursday, and nine hours on Sunday. Smith testified that remaining in one position for an extended period of time caused his back to hurt.
Smith testified that, since his industrial accident, he had made only a few telephone calls concerning "Project Destiny" and that he incorporated the entity only to protect his rights to the name. Smith also testified that "Project Destiny" was not an active corporation and that it had no earnings, employees, or assets.
After his injury, Smith also performed proofreading and editing work for a short period. Smith testified that he sat on a bed or on the floor at home and made notations on the hard copy of the document he edited. He was also able to frequently shift positions.
We cannot say as a matter of law that the commission erred in finding from this evidence that neither Smith's proofreading activities nor his activities with "Project Destiny" proved that he could perform his pre-injury work.
For the reasons stated, we affirm the commission's decision.
Affirmed.