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Cleco Corp. v. Ramey

Court of Appeals of Virginia
Mar 21, 1995
Record No. 1736-94-3 (Va. Ct. App. Mar. 21, 1995)

Opinion

Record No. 1736-94-3

Decided: March 21, 1995

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Ralph L. Whitt, Jr.; Jennifer G. Marwitz; Sands, Anderson, Marks Miller, on brief), for appellants.

(Gerald L. Gray, on brief), for appellee.

Present: Judges Benton, Coleman and Willis


MEMORANDUM OPINION

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


Cleco Corporation and its insurer (collectively hereinafter "employer") contend that the Workers' Compensation Commission erred in finding that Delmon F. Ramey sustained an injury by accident arising out of and in the course of his employment on June 9, 1993. 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).

Ramey testified that he injured his neck while stepping from the bed of a truck to the ground, a distance of four to four and one-half feet. The deputy commissioner, without making findings as to Ramey's credibility, was not persuaded that Ramey carried his burden of proving an injury by accident. Rather, the deputy commissioner noted inconsistencies in Ramey's reports of the date of injury and the absence of any mention or reference to the truck incident in medical reports.

The commission reversed, finding that "the hearing transcript shows that Ramey was cooperative and responsive to all questions posed, . . . he did not seek to evade the questions. . . . , [and] he explained fully when asked about the events in an apparent frank and candid manner." The commission also found that, despite omission of details or references to the truck incident, the medical histories were "corroborative of the claimant's testimony."

In urging reversal of the commission's award, employer argues that the record established that Ramey was uncertain as to the date of the injury and that his testimony was contradicted by testimony from other witnesses. We find these arguments unpersuasive.

In his testimony before the deputy commissioner, Ramey stated that the injury occurred on June 9, 1993. The commission accepted this testimony. Ramey's testimony was not inherently incredible. Thus, we are bound by the commission's finding. That other witnesses contradicted Ramey's assertions was a factual matter for the commission to resolve.

Moreover, assuming arguendo that the commission erred in pinpointing the date of the injury as June 9, 1993, the claim would still be compensable. The evidence consistently showed that the truck incident occurred in early June 1993, prior to an aggravating incident involving the lifting of a generator. To recover, Ramey was required to prove that the injury "occurred within a 'reasonably definite time,' " Richard E. Brown, Inc. v. Caporaletti, 12 Va. App. 242, 243-44, 402 S.E.2d 709, 710 (1991) (quoting Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 864 (1989)), "so as to preclude coverage where the injury is caused by repetitive trauma or cumulative incidents," Hercules, Inc. v. Gunther, 13 Va. App. 357, 364 n. 2, 412 S.E.2d 185, 189 n. 2 (1991). Thus, even if Ramey cannot pinpoint the date on which the injury occurred, that is not fatal to his claim where, as here, he was able to precisely identify the precipitating event.

The evidence, as accepted by the commission, established that Ramey identified a specific precipitating event, stepping off the truck, that took place at a reasonably definite time. See Caporaletti, 12 Va. App. at 244, 402 S.E.2d at 710. Because credible evidence supports the commission's finding, we conclude that the commission did not err in ruling that Ramey suffered an injury by accident arising out of and in the course of his employment, we affirm the award.

Affirmed.


Summaries of

Cleco Corp. v. Ramey

Court of Appeals of Virginia
Mar 21, 1995
Record No. 1736-94-3 (Va. Ct. App. Mar. 21, 1995)
Case details for

Cleco Corp. v. Ramey

Case Details

Full title:CLECO CORPORATION AND VALIANT INSURANCE COMPANY v. DELMON FRANKLIN RAMEY

Court:Court of Appeals of Virginia

Date published: Mar 21, 1995

Citations

Record No. 1736-94-3 (Va. Ct. App. Mar. 21, 1995)