Opinion
Record No. 2210-93-4
Decided: May 10, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(Kathleen G. Walsh; Ashcraft Gerel, on brief), for appellant.
(Francis G. Marrin, on brief), for appellees.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 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 Workers' Compensation Commission. Rule 5A:27. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
Rosa Marquez (claimant) contends that the commission erred in (1) reversing the deputy commissioner's decision by finding that she was not a credible witness; and (2) finding that she failed to prove an injury by accident arising out of and in the course of her employment.
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). Factual findings of the commission will be upheld on appeal if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
The deputy commissioner, in her April 8, 1993 opinion, based her credibility determination on the substance of the witnesses' testimony and the contents of the medical records, rather than upon claimant's demeanor or appearance. Accordingly, the credibility issue was as determinable by the full commission as it was by the deputy. Goodyear Tire Rubber Co. v. Pierce, 5 Va. App. 374, 383, 363 S.E.2d 433, 438 (1987), appeal after remand, 9 Va. App. 120, 384 S.E.2d 333 (1989); see also Kroger Co. v. Morris, 14 Va. App. 233, 236, 415 S.E.2d 879, 880-81 (1992).
The full commission, after reciting the unexplained inconsistencies between claimant's testimony and that of employer's witnesses, found that the accident did not occur as described by claimant and denied her application.
In its October 28, 1993 opinion, the full commission noted that although claimant testified that her front teeth were dislodged and she hurt her back when pots and pans fell on her, there was no explanation as to what caused numerous pots and pans to fall simultaneously from the hooks upon which they were situated. The commission also recognized that claimant later testified that only one large pot and a colander fell on her. Moreover, the employer's witnesses did not see any blood or evidence of apparent injury to claimant immediately after the alleged accident, even though she claimed to have violently dislodged her front teeth. The fact that blood was noticed on claimant's gums ten to thirty-five minutes after the alleged accident is not explained in the record. The commission found that the pots and pans would have fallen approximately six feet onto a hard floor. Yet, claimant's co-workers who were in close proximity to the kitchen at the time of the alleged accident did not hear any noise or commotion. Finally, the commission pointed out that there were no pots and pans on the kitchen floor immediately after the alleged accident, as would be expected.
We find that the full commission's findings of fact, including its determination of claimant's credibility and inferences deduced from the testimony of employer's witnesses, are supported by credible evidence. "The fact that there is contrary evidence in the record is of no consequence if there is credible evidence to support the Commission's findings." Russell Loungewear v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986). Accordingly, we cannot say that the commission erred in finding that claimant failed to meet her burden of proving an injury by accident arising out of and in the course of her employment.
For the reasons stated, we affirm the commission's decision.
Affirmed.