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MW MANUFACTURERS, INC., et al. v. DOWDY


MW MANUFACTURERS, INC.,
et al. v. DOWDY

(unpublished)


APRIL 14, 1998
Record No. 2468-97-3

MW MANUFACTURERS, INC. AND
TRAVELERS INDEMNITY COMPANY
OF ILLINOIS

v.

HENRY B. DOWDY

MEMORANDUM OPINION[1]
PER CURIAM
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Present: Judges Benton, Coleman and Willis

(Dale W. Webb; Monica L. Taylor; Gentry, Locke, Rakes &
Moore, on brief), for appellants.

(Richard M. Thomas; Rider, Thomas, Cleaveland, Ferris &
Eakin, on brief), for appellee.


MW Manufacturers, Inc. and its insurer (hereinafter referred
to as "employer") contend that the Workers’
Compensation Commission erred in finding that Henry B. Dowdy
proved that (1) he sustained an injury caused by a specific
identifiable incident occurring at work; and (2) his back injury
was caused by that injury by accident. 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. See Rule 5A:27.

I.

On appeal, we view the evidence in the light most favorable to
Dowdy, the prevailing party below. See R.G. Moore Bldg.
Corp. v. Mullins
, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). So viewed, the evidence proved that on September 6, 1996,
Dowdy and a co?worker, Junior Frith, were lifting a triple
window unit when Frith lost his grip on the unit. Dowdy used his
left hand to prevent the unit from falling and, in doing so, felt
pain in his lower back. The window unit weighed approximately 250
pounds and measured six feet long and nine feet wide.

Dowdy testified that he reported the incident to his
supervisor and to the plant nurse, but did not describe the
accident with any specificity. Dowdy also gave his employer a
recorded statement that detailed the incident consistent with his
hearing testimony. Dr. Roger D. Tims, the first doctor who
treated Dowdy, recorded a history of "acute low back pain
which occurred after lifting windows at work." Dowdy gave
Dr. W. Ronald Howell and Dr. Edgar N. Weaver, Jr. a history
consistent with his hearing testimony.

Based upon the evidence in the record, the commission made the
following findings:

The Deputy Commissioner found [Dowdy] testified credibly
regarding the details of the September 6, 1996, incident, finding
his account consistent with that given to the plant nurse, the
carrier, and Drs. Howell and Weaver. As to the history recorded
by Dr. Tims, the Deputy Commissioner found that [Dowdy] did not
appreciate the significance of the details of the
incident. . . .

While it is true that Dowdy was convicted of a felony over ten
years ago, this conviction does not mean [he] cannot testify
truthfully. Moreover, co?worker Frith corroborated Dowdy’s
testimony about the specific details of the September 6, 1996,
incident and Dowdy reported the same history to the carrier, the
plant nurse and Drs. Howell and Weaver.

That Dr. Tims reported that [Dowdy] experienced back pain
after lifting "windows" is not dispositive. Dowdy was
unsure whether he reported a specific incident to Dr. Tims, and
the bulk of the record reflects that [Dowdy] reported a specific
incident to several individuals. Also, the only other witness to
the September 6, 1996, incident testified that [Dowdy] injured
his back while preventing a large window unit from falling.

The commission ruled that Dowdy proved that he was injured as
a result of an identifiable incident at work on September 6, 1996
and "agree[d] with the Deputy Commissioner that [Dowdy] proved a compensable injury by accident."

"In order to carry [the] burden of proving an ‘injury by
accident,’ a claimant must prove that the cause of [the] 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). "In
determining whether credible evidence exists [to support the
commission's ruling], the appellate court does not retry the
facts, reweigh the preponderance of the evidence, or make its own
determination of the credibility of the witnesses." Wagner
Enters., Inc. v. Brooks
, 12 Va. App. 890, 894, 407 S.E.2d 32,
35 (1991). "The fact that there is contrary evidence in the
record is of no consequence if there is credible evidence to
support the commission’s finding." Id.

In rendering its decision, the commission considered the
various medical histories and resolved any inconsistencies
between this evidence and Dowdy’s testimony in favor of Dowdy.
Dowdy’s testimony, which was corroborated by Frith, the plant
nurse, the recorded statement, and the medical histories of Drs.
Howell and Weaver, provides credible evidence to support the
commission’s finding that Dowdy proved an identifiable incident
that resulted in a compensable injury. Thus, that finding is
conclusive on this appeal. See James v. Capitol Steel
Constr. Co.
, 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

II.

In holding that Dowdy proved that his back injury was caused
by the September 6, 1996 accident at work, the commission found
as follows:

Dr. Weaver offered no opinion on causation. Dr. Howell
concluded that he could not state within a reasonable medical
certainty that the degenerative disc disease from L1 through L4
was causally related to the industrial accident. However, in his
Attending Physician’s Report of February 3, 1997, Dr. Howell
related [Dowdy's] persistent radicular back pain to the September
6, 1996, incident.

"Medical evidence is not necessarily conclusive, but is
subject to the commission’s consideration and weighing." Hungerford
Mechanical Corp. v. Hobson
, 11 Va. App. 675, 677, 401 S.E.2d
213, 214 (1991). Furthermore, "[t]he actual determination of
causation is a factual finding that will not be disturbed on
appeal if there is credible evidence to support the
finding." Ingersoll?Rand Co. v. Musick, 7 Va. App.
684, 688, 376 S.E.2d 814, 817 (1989).

In its role as fact finder, the commission was entitled to
weigh the medical evidence and to accept the opinion Dr. Howell
expressed in his Attending Physician’s Report. That opinion and
Dowdy’s testimony that he had not experienced back symptoms
immediately prior to the September 6, 1996 incident at work
constitute credible evidence to support the commission’s
decision. Consistent with Dollar General Store v. Cridlin,
22 Va. App. 171, 468 S.E.2d 152 (1996), the commission properly
considered both Dowdy’s testimony and the medical evidence in
determining causation.

For the reasons stated, we affirm the commission’s decision.

Affirmed.

 

 

 

FOOTNOTES:

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

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