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ARMSTRONG FURNITURE DIVISION/THOMASVILLE FURNITURE INDUSTRIES v. MAXWELL


ARMSTRONG FURNITURE
DIVISION/THOMASVILLE FURNITURE INDUSTRIES

v.

MAXWELL

(unpublished)


MAY 5, 1998
Record No. 1809-97-3

ARMSTRONG FURNITURE DIVISION/
THOMASVILLE FURNITURE INDUSTRIES AND
LIBERTY MUTUAL FIRE INSURANCE COMPANY

v.

CHARLES RALPH MAXWELL

MEMORANDUM OPINION[1]
BY JUDGE RUDOLPH BUMGARDNER, III
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Present: Judges Benton, Coleman and Bumgardner
Argued by teleconference

Roger L. Williams (Vasiliki Moudilos; Williams & Lynch, on
brief), for appellants.

Craig P. Tiller (Davidson, Sakolosky & Moseley, P.C., on
brief), for appellee.


Armstrong Furniture Division appeals a decision of the
Workers’ Compensation Commission that found that Charles R.
Maxwell had sustained an injury by accident. Finding that there
is credible evidence to support the decision of the commission,
we affirm.

Charles Maxwell worked as a bander, or machinist. His duties
included pushing lumber into a feeder, which was to be made into
dresser tops for hotel furniture. On May 21, 1996, he was pushing
stacks of these parts which weighed from 290 to 300 pounds into
the feeder. While doing this, he felt a sting in his groin. He
was diagnosed with a hernia which was repaired surgically.

The employer complains that Maxwell did not mention the sting
when he first reported pain to the employer’s nurse. Employer
further notes that he never could point to any specific cause of
his pain and could only attribute it to having done a lot of
lifting. The deputy commissioner found that the evidence did not
relate the injury to a specific episode and denied benefits. The
full commission reversed and found that the evidence was a result
of an identifiable accident.

A finding by the commission that an injury arose out of, and
in the course of employment, is a mixed question of law and fact,
and is properly reviewable on appeal. Findings of fact made by
the commission will be upheld when supported by credible
evidence. See Franklin Mortgage Corp. v. Walker, 6
Va. App. 108, 110, 367 S.E.2d 191, 192 (1988) (en banc).

It is true that the claimant did not identify the stinging
pain at first. However, he did testify at his hearing to that
sequence of events. The deputy commissioner found that the
medical evidence did not prove that the stinging sensation was
the onset of the hernia. Because the deputy commissioner’s
finding was not a specific credibility determination based on
demeanor or appearance of a particular witness, the full
commission may determine credibility when it is based on the
substantive testimony of a witness and not the demeanor. See
Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374,
383, 363 S.E.2d 433, 438 (1987), aff’d, 9 Va. App. 120,
384 S.E.2d 333 (1989).

If the deputy commissioner’s finding of credibility is based,
in whole or in part, upon the claimant’s appearance and demeanor
at the hearing, the commission may have difficulty reversing that
finding without recalling the witness. Goodyear Tire &
Rubber Co. v. Pierce
, 5 Va. App. 374, 383, 363 S.E.2d 433,
438 (1987). A specific recorded observation of a key witness’s
demeanor or appearance in relation to credibility is an aspect of
the hearing that the commission may not arbitrarily disregard. Id.
However, if the deputy commissioner’s determination of
credibility is based upon the substance of the testimony rather
than upon the witness’s demeanor, such a finding is as
determinable by the full commission as by the deputy.

Kroger Co. v. Morris, 14 Va. App. 233, 236, 415 S.E.2d
879, 880?81 (1992).

Credible evidence supports the commission’s finding.
Accordingly, the decision is affirmed.

Affirmed.

 

 

 

 

FOOTNOTES:

[1] Pursuant to Code Sect. 17?116.010 this
opinion is not designated for publication.

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