COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

HARDEES OF CHARLOTTESVILLE #3
AND
BODDIE NOELL ENTERPRISES, INC.
MEMORANDUM OPINION
v. Record No. 1411-97-2 PER CURIAM
NOVEMBER 10, 1997
BRENDA LEE CRAWFORD

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Jimese L. Pendergraft; John S. Nevin;
Richard E. Garriott, Jr.; Knight, Clarke,
Dolph & Rapaport, on briefs), for appellants.

(Ronald L. Morris; Berry & Early, on brief),
for appellee.

Hardees of Charlottesville #3 and Boddie Noell Enterprises,
Inc. (employer) contend that the Workers' Compensation Commission
erred in reversing the deputy commissioner's credibility
determination and finding that Brenda Lee Crawford (claimant)
proved that she sustained an injury by accident arising out of
and in the course of her employment on October 31, 1994. Upon
reviewing the record and the briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the commission's decision. Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "In
order to carry [her] burden of proving an 'injury by accident,' a
claimant must prove that the cause of [her] 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).
The deputy commissioner was not persuaded that claimant
sustained a work-related accident on October 31, 1994. The
deputy commissioner based his conclusion upon the inconsistencies
between the Time Clock Activity Report and the testimony of
claimant and Lucy Snow (formerly Tilson), employer's assistant
manager at the time of the alleged accident.
The commission reversed the deputy commissioner and accepted
claimant's testimony regarding the October 31, 1994 accident. In
so ruling, the commission found that claimant testified that she
immediately reported the accident to her manager, Maurice
Bartley. The commission also considered the medical records,
which consistently corroborated claimant's testimony regarding
the accident and her continuing pain. The commission
"recognize[d] the various inconsistencies evinced by the
witnesses' testimony particularly regarding the time of the
incident. However, [it was] more persuaded that the details of
the incident faded in the minds of the witnesses over two years,
rather than that the claimant and witnesses fabricated the
incident."
Employer contends that the commission arbitrarily
disregarded the deputy commissioner's credibility determination
and failed to articulate a sufficient basis for its conclusion.
However,
[t]he principle set forth in [Goodyear Tire &
Rubber Co. v.] Pierce[, 5 Va. App. 374, 383,
363 S.E.2d 433, 438 (1987),] does not make
the deputy commissioner's credibility
findings unreviewable by the commission.
Rather, it merely requires the commission to
articulate its reasons for reversing a
specific credibility determination of the
deputy commissioner when that determination
is based upon a recorded observation of
demeanor or appearance of a witness. In
short, the rule in Pierce prevents the
commission from arbitrarily disregarding an
explicit credibility finding of the deputy
commissioner.
Bullion Hollow Enters., Inc. v. Lane, 14 Va. App. 725, 729, 418
S.E.2d 904, 907 (1992).
In this case, as in Bullion, upon a review of the deputy
commissioner's decision, we do not find a "specific recorded
observation" concerning any witness' demeanor or appearance
related to a credibility determination. The deputy commissioner
merely concluded from the evidence before him that claimant had
not met her burden of proof. "Absent a specific, recorded
observation regarding the behavior, demeanor or appearance of
[the witnesses], the commission had no duty to explain its
reasons for . . . [accepting claimant's version of events]." Id.
Although the deputy commissioner ambiguously referred to
Snow's pause in answering a question as an indication of her
being an "unwilling" witness, this reference does not constitute
a specific recorded observation related to a credibility
determination. The deputy commissioner did not specifically find
that Snow's demeanor or appearance indicated that her testimony
was untruthful, evasive, or otherwise incredible.
Moreover, when the commission's findings are supported by
credible evidence, as in this case, those findings are conclusive
and binding on appeal. See Ross Laboratories v. Barbour, 13 Va.
App. 373, 377-78, 412 S.E.2d 205, 208 (1991). Claimant testified
that on October 31, 1994 between 5:30 and 6:00 a.m., when she and
Snow lifted a full, four foot tall urn of tea, claimant felt a
pop in her back and a sharp pain. She reported the incident to
her manager, Maurice Bartley, who told her to take pain pills.
Bartley did not fill out an accident report. Claimant's back
continued to hurt, but she continued to work, taking pain pills
to treat her symptoms. On February 20, 1995, while lifting a
five gallon bucket of tea, she felt a sharp pain and popping in
the same part of her back. She told Judy Taylor, the store
manager, of the incident. The testimony of Donna Shifflett and
Snow corroborated claimant's version of events. In addition, the
medical records of the Martha Jefferson Hospital emergency room
and Drs. Ronald Lather, Charles Thurber, Robert Wertz and Donald
Manning corroborated claimant's testimony. Those records
consistently reported a history of a back injury at work in
October 1994 with subsequent re-injury several months later at
work.
Based upon claimant's testimony, which was corroborated by
Shifflett and Snow and the medical histories, we find that
credible evidence supports the commission's decision that
claimant suffered an injury by accident arising out of and in the
course of her employment on October 31, 1994. "Although contrary
evidence may exist in the record, findings of fact made by the
commission will be upheld on appeal when supported by credible
evidence." Bullion, 14 Va. App. at 730, 418 S.E.2d at 907. The
medical records also support the commission's finding that
claimant's "current problems originated with the October 31,
1994, accident and that subsequent incidents represent
exacerbations of the original compensable back problem."
For the reasons stated, we affirm the commission's decision.
Affirmed.

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