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Chesapeake Bay Briddge v. Robbins

Court of Appeals of Virginia
Feb 2, 1993
Record No. 1463-92-1 (Va. Ct. App. Feb. 2, 1993)

Opinion

Record No. 1463-92-1

February 2, 1993

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(George J. Dancigers; A. William Charters; Heilig, McKenry, Fraim Lollar, on brief), for appellants.

(C. Allen Riggins; Parker, Pollard Brown, on brief), for appellee.

Present: Judges Baker, Elder and Fitzpatrick


MEMORANDUM OPINION

Pursuant to Code § 17-116.010 this opinion is not designated for publication.


Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Worker's Compensation Commission. Rule 5A:27.

Chesapeake Bay Bridge and Tunnel District and its insurer contend that the commission erred in finding that Charles Walter Robbins sustained an injury by accident arising out of and in the course of his employment on May 30, 1991.

On appellate review, we will 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).

"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).

Here, Robbins testified that on May 30, 1991, he injured his right shoulder while in the process of changing a flat tire on a disabled vehicle. He stated that when he "snatched the [lug] wrench, [he] felt a pop in his shoulder. . . ." He stated that the pain began within an hour of this event.

The Employer's First Report of Accident and Incident/Accident Reports filled out within a short time after the incident essentially corroborate Robbins' hearing testimony. The Employer's First Report states that the "[e]mployee alleges he injured his right shoulder while changing a tire." An Employee Personal Injury/Accident Report, dated June 2, 1991 and signed by Robbins, states that he was called to tow a car and then changed the tire, injuring his right shoulder. An Incident Report dated June 2, 1991 and completed by Sgt. G. M. Ewell states that Robbins contacted him and reported that on May 30, 1991, while changing a tire, he may have aggravated a previous right shoulder injury while tugging on a lug wrench.

The medical history taken by Dr. Stuart F. Mackler, orthopedist, on June 13, 1991 relates that Robbins had a sharp pain in his shoulder while pulling on a lug wrench at work. Dr. Ellie Daniels' note dated June 3, 1991 states that Robbins complained of injuring his right shoulder as a result of changing a tire at work on May 30, 1991. Thus, the medical history, which we deem appropriate to corroborate Robbins' version of the accident, is consistent with his testimony as to sustaining an injury while changing the tire.

The record, as summarized above, provides ample credible evidence to support the commission's finding of an identifiable incident wherein Robbins sustained injury to his right shoulder.

The employer argues that the commission's decision cannot be upheld, relying solely on a recorded statement of Robbins taken by Linda Boykin, insurance adjuster for the employer, on June 20, 1991. However, the employer ignores the other credible reports concerning Robbins' accident which are consistent with his testimony and which occurred prior to June 20, 1991. The existence of contrary evidence in the record is of no consequence if there is credible evidence to support the commission's finding. Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

Furthermore, we do not find that the recorded statement is necessarily inconsistent with Robbins' testimony. In the recorded statement, after discussing the changing of the tire and the pain which occurred afterward, Robbins repeated that he "[p]ulled too hard on a wrench or something." Finally, we find that Massie v. Firmstone, 134 Va. 450, 114 S.E. 652 (1922), and its progeny are not applicable in this case as the holding therein only applies to judicial testimony or judicial admissions, not extra-judicial statements.

For the reasons stated, we affirm the commission's decision.

Affirmed.


Summaries of

Chesapeake Bay Briddge v. Robbins

Court of Appeals of Virginia
Feb 2, 1993
Record No. 1463-92-1 (Va. Ct. App. Feb. 2, 1993)
Case details for

Chesapeake Bay Briddge v. Robbins

Case Details

Full title:CHESAPEAKE BAY BRIDGE AND TUNNEL DISTRICT AND VIRGINIA MUNICIPAL GROUP…

Court:Court of Appeals of Virginia

Date published: Feb 2, 1993

Citations

Record No. 1463-92-1 (Va. Ct. App. Feb. 2, 1993)