Opinion
Record No. 2250-92-2
June 29, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Jay G. Kauffman; Kauffman Fraley, on brief), for appellant.
(R. Ferrell Newman; Thompson, Smithers, Newman Wade, on brief), for appellees.
Present: Judges Baker, Elder and Fitzpatrick.
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 Workers' Compensation Commission. Rule 5A:27.
Francis T. Rohatch, a truck driver employed by Warrior Xpress, contends that the commission erred in finding that he failed to prove that he sustained an injury by accident on October 25, 1991, arising out of and in the course of his 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). 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). Unless we can say as a matter of law that Rohatch's evidence was sufficient to sustain this burden of proof, the commission's finding is conclusive and binding. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In denying Rohatch's application, the commission found that the evidence established that he injured his neck and back unloading boxes over a three-hour period of time, and that his injury did not result from an injury by accident as defined in the Workers' Compensation Act. The commission found that the medical evidence, at best, demonstrated that Rohatch developed pain in his left shoulder girdle as a result of unloading a trailer over a period of time. The commission did not find Rohatch's references to shoving boxes over a set of rollers and simply "pushing," without more, sufficient to establish the description of an injury by accident.
There is substantial credible evidence in the record to support the commission's findings and they will not be disturbed on appeal. In a recorded statement, given by Rohatch to Susan Liptak, the insurer's representative, one month after the alleged accident, Rohatch stated that he was unloading a trailer in Jacksonville, Florida, placing boxes, some weighing forty to fifty pounds, on conveyor-type rollers and "shoving them into the warehouse." He stated that during the unloading process several boxes fell and hit him on the shoulder or head. However, he stated that he first noticed something was wrong after he left Shuttle Express in Jacksonville, Florida and was traveling on the interstate highway. At that time, he stated he started to feel pain in his left shoulder blade and, when he got to Kingsland, Georgia, he noticed a numbness in two of the fingers on his left hand. He stated that the pain began fifteen to twenty minutes after he left Shuttle Express. Liptak specifically asked Rohatch whether he felt any pain in his shoulder or in his fingers at the time he was unloading the truck at Shuttle Express, and he replied that he did not feel any pain at that time.
The medical records corroborate Rohatch's statements made to Liptak. On November 4, 1991, Rohatch was treated at Patient First. He gave a history of feeling a burning painful sensation in his lower neck right after doing a lot of pushing boxes on a conveyor belt with his arms.
Rohatch was referred by Patient First to Dr. Bernard A. Lublin. He told Dr. Lublin that he developed pain at the posterior left shoulder girdle as a result of unloading a trailer in the course of his work. Dr. Lublin referred Rohatch to Virginia Rehab for physical therapy. On the patient information sheet for Virginia Rehab it is reflected that Rohatch developed pain in his left shoulder blade and numbness in two fingersafter unloading a truck.
Rohatch was also referred to Dr. Hallett Mathews by Dr. Lublin. On December 30, 1991, in a letter to Rohatch's attorney, Dr. Mathews related that Rohatch felt a strain in his neckafter three hours of unloading a truck.
All of this evidence supports the commission's finding that Rohatch failed to prove a sudden identifiable incident which resulted in an obvious sudden mechanical or structural change in his body. We agree that, at best, he proved an injury resulting from continuing physical stress over a period of three hours, which is not sufficient to prove an injury by accident as defined by the Act and interpreting case law.
The commission was entitled to discount Rohatch's testimony given at the hearing where he stated that he felt sudden pain in his neck midway through the unloading process. This testimony occurred five months after the alleged accident and was not revealed by Rohatch to Liptak one month after the accident nor corroborated by the medical records. "In determining whether credible evidence exists, the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of witnesses."Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (citation omitted).
For the reasons stated, we affirm the commission's decision.
Affirmed.