Opinion
Record No. 1116-93-4
November 9, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Cathie W. Howard; Williams, Butler Pierce, on brief), for appellants.
(William E. Findler, on brief), for appellee.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Bee H Electric Company and its insurer contend that the Workers' Compensation Commission erred in finding that James F. Yowell sustained an injury by accident arising out of and in the course of his employment on April 3, 1992. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the commission's decision. Rule 5A:27.
On appellate review, we construe the evidence in the light most favorable to the prevailing party. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). We uphold the commission's findings of fact if they are supported by credible evidence. James v. Capitol Steel Constr. Corp., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
"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).
Yowell testified that during the morning of Friday, April 3, 1992, he injured his back while pulling heavy cables. He stated that he felt pain in his back and had trouble standing up. On Monday, April 6, 1992, Yowell told his supervisor that he hurt his back while working on April 3, 1992, and that his back was sore. Two of Yowell's co-workers corroborated his version of the incident and that it occurred on April 3, 1992. The Employer's First Report of Accident confirms that Yowell told his supervisor that he hurt his back on April 3, 1992, while pulling cable.
Yowell first sought medical treatment on April 13, 1992, from Dr. Harold J. Goald. An April 13, 1992, patient information sheet signed by Yowell states that the accident happened on April 3, 1992, while he was pulling heavy cable. Dr. Goald's office notes reflect that Yowell "was injured pulling some heavy cable, on April 3, 1992." Dr. Goald's April 15, 1992, and August 24, 1992, letters to the insurance adjuster confirm the date of accident as April 3, 1992, and provide the requisite causal connection. In addition, Yowell told Dr. Neil Kahanovitz, the independent medical examiner, that the accident occurred on April 3, 1992, while he was performing heavy labor. Thus, the medical history is consistent with Yowell's testimony.
Credible evidence supports the commission's finding that an identifiable incident occurred wherein Yowell injured his back.
Relying almost exclusively on a recorded statement of claimant taken by an insurance adjuster on April 27, 1992, the employer contends that the commission's decision cannot be upheld. The commission discounted the recorded statement, noting that the adjuster's questioning was designed to elicit an acknowledgement of gradual injury, and that the statement contains many inaudible portions. We cannot say that the commission erred in finding that the recorded statement was unreliable. The existence of contrary evidence in the record is of no consequence because credible evidence supports the commission's findings. Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
For the reasons stated, we affirm the commission's decision.
Affirmed.