Opinion
Record No. 0862-93-3
March 8, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
S. Vernon Priddy, III (Marianne Nelms Macon; Sands, Anderson, Marks Miller, on briefs), for appellant.
Robert A. Williams (Williams, Luck and Williams, on brief), for appellee.
Present: Judges Benton, Koontz, and Willis.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The Workers' Compensation Commission awarded David E. Spinner compensation for temporary total work incapacity. On this appeal, Winn-Dixie Raleigh, Inc. contends that the commission erred in ruling that Spinner proved by a preponderance of the evidence an injury by accident that arose out of his employment. For the reasons that follow, we affirm the decision.
For twenty-two years, Spinner worked for Winn-Dixie. At the time of this incident, he was an assistant market manager and was responsible for cutting the meat in the meat department. On the morning of December 5, 1991, Spinner was in the process of preparing ground meat for display. He removed from the freezer a rack of shelves six feet high containing pans of meat. Each pan weighed approximately twenty pounds. Spinner removed the pans and began wrapping and pricing the meat for display. As he was stooping at the bottom rack in the course of this activity, he suffered an injury. On four different occasions Spinner recounted the events surrounding his injury: to his doctor, in a tape recorded interview with an insurance claims adjustor, in response to Winn-Dixie's interrogatories, and at the evidentiary hearing before a deputy commissioner.
Spinner testified at the evidentiary hearing that he experienced pain when he was holding a pan of meat while stooping at the bottom rack. The deputy commissioner concluded from the evidence that Spinner's many statements did not "preponderate in establishing that [Spinner] was in the process of lifting 20 pounds of meat at the time he first felt his back pain." The deputy commissioner further concluded that "the evidence does not preponderate in showing that this minimal exertion [holding a pan of meat] is causally related to claimant's injury." The deputy commissioner ruled that because cumulative exertion injuries are noncompensable, and because Spinner lifted between twenty and twenty-four pans of meat before feeling any pain, Spinner's injury was noncompensable.
On review, the commission found "that the evidence establishe[d] a specific action taken by [Spinner] in his work which aggravated a pre-existing back condition and resulted in disability." The commission also found that any inconsistency in Spinner's account of when he began to experience pain was attributable to the nature of the questions propounded to Spinner. Thus, the commission reversed the deputy commissioner's denial of an award and awarded Spinner compensation.
"[I]t is fundamental that a finding of fact made by the Commission [and supported by credible evidence] is conclusive and binding upon this court on review." Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). This Court has also held that "[w]here reasonable inferences may be drawn from the evidence in support of the commission's factual findings, they will not be disturbed by this Court on appeal." Hawks v. Henrico County School Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). Thus, on appeal, this Court must "construe the evidence in the light most favorable to the prevailing party."Crisp v. Brown's Tyson Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).
When viewed according to these principles, the evidence established a compensable injury by accident. Spinner's testimony at the evidentiary hearing provided a basis upon which the commission could have found credible evidence that Spinner was in a stooped position and holding a pan of meat when he experienced the pain in his back. That testimony was also consistent with the treating physician's report of the history of the incident.
Winn-Dixie argues that Spinner's testimony at the evidentiary hearing was not credible because it was inconsistent with the statements Spinner gave to the insurance adjuster and in answers to interrogatories. We disagree with that analysis. The commission adequately explained its view of the factual dispute as follows:
We find from review of the evidence that the principal reason for variance lies in the manner of questioning, not in any failure of the employee to answer forthrightly various questions which were posed to him in interrogatories and in oral telephone interview. We do not find this case to be one in which there is a question of credibility, but rather, one in which failure of communication resulted in the need for a more detailed initial questioning to explain actions which we find to have constituted injury by accident.
On this record, we find no basis to conclude that the commission erred in its view of the facts. Furthermore, even if the evidence was in conflict, the resolution of those conflicts is within the province of the trier of fact. The commission's weighing of the conflicting evidence is binding on appeal from its decision. American Safety Razor Co. v. Hunter, 2 Va. App. 258, 263, 343 S.E.2d 461, 464 (1986).
Furthermore, the commission specifically addressed the medical evidence concerning Spinner's earlier injury. The commission found from its review of the evidence as follows:
[T]he employee was treated conservatively for disc injury in 1989 and returned to unrestricted work which he continued to perform for more than a year until the incident of December 5, 1991, when he stooped to pull a tray from a ready rack. . . . [I]n pulling the tray out preparatory to lifting it, he felt pain in his back and again sustained injury to his low back at the L4-5 disc level. We find from review of the clinical notes and statements of Dr. Eschenroeder and from the evidence in this record that it persuasively establishes the occurrence of a reinjury by accident of a pre-existing condition on December 5, 1991 which resulted in the need for laminectomy and in continuing temporary total disability. The accident is found to have occurred at a specific time when the employee was engaged in a significant physical movement which caused him to reinjure his low back at the L4-5 level and to have surgery and consequent disability which continued through the hearing date.
Those findings adequately support the commission's conclusion that Spinner's injury was compensable. See Manassas Ice Fuel v. Farrar, 13 Va. App. 227, 231, 409 S.E.2d 824, 827 (1991). Accordingly, we affirm the commission's award.
Affirmed.