A. H. ROBINS CO. v. AGEE, 0920-92-2, Unpublished (Va.App. 11-24-1992)


Record No. 0920-92-2Court of Appeals of Virginia.
November 24, 1992

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]


(Steven H. Theisen; Midkiff Hiner, on briefs), for appellants.

(B. Mayes Marks, Jr.; Marks Harrison, on brief), for appellee.

Present: Judges Benton, Coleman and Willis.


[*] Pursuant to Code § 17-116.010 this opinion is not designated 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.

A.H. Robins Company, Inc. and its insurer contend that the commission erred in finding that Helen L. Agee sustained her burden of proving an injury by accident and that her injury arose out of her employment.

On appellate review, we construe the evidence in the light most favorable to the party who prevailed before the commission.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,

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382 S.E.2d 487, 488 (1989).

“In order to establish entitlement to compensation benefits, the claimant must prove, by a preponderance of the evidence, an injury by accident which arose out of and in the course of [her] employment.” Classic Floors, Inc. v. Guy, 9 Va. App. 90, 95, 383 S.E.2d 761, 764 (1989) (citation omitted). “In order to carry [her] burden of proving an `injury by accident,’ a claimant must prove that the cause of [her] injury was an identifiableincident 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).

Here, Agee testified that on September 17, 1990, she experienced a sharp pain in her back and leg as she placed a thirty-five pound box of shelf cartons on top of another box. She went to the bathroom and felt nauseous. Thereafter, she came back to the line and sat in a chair for fifteen to twenty minutes until break time. Her description of how her injury occurred is consistent with the testimony of her supervisor, Allen Brugger, and her co-worker, Paula Whitaker. Both of these witnesses testified that, shortly after the incident, Agee told them about lifting a box and feeling pain.

The medical history taken by Drs. John W. Ayres, II and Kenneth I. Kiluk is also consistent with Agee’s testimony as to sustaining an injury when she lifted a box. Furthermore, in a recorded statement taken on October 31, 1990 by claims

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representative, Carlos Alvarez, Agee clearly related that her pain started as she placed the second box on top of the first.

Agee’s testimony, along with the testimony of Whitaker and Brugger, the medical records of Drs. Ayres and Kiluk, and the recorded statement provide credible evidence supporting the commission’s finding of an identifiable incident. Moreover, such evidence sufficiently demonstrates that her injury arose out of her employment.

The deputy commissioner also heard the testimony of Robins’ employees Joan Faison, Ruby Mosely, and Ronald Tamagi which conflicted with Agee’s and her witnesses’ testimony. The deputy commissioner, after having full opportunity to observe the demeanor of the claimant and other witnesses and having reviewed the record in its entirety, acknowledged that the “question here is one of credibility. . . .” She resolved this conflict in favor of the claimant and awarded her compensation.

The full commission, after reviewing the testimony of all the witnesses and the documentary evidence in the record, found, as did the deputy commissioner, “that the question presented is largely one of credibility.” The full commission agreed with the deputy commissioner’s decision that Agee’s testimony was credible and that she described an identifiable incident. Her testimony, combined with the testimony of co-workers and the medical records, sufficiently proved a compensable injury by accident.

“Traditional principles dictate . . . that the

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determination of a witness’ credibility is within the fact-finder’s exclusive purview because he has the best opportunity to observe the appearance and demeanor of the witness.” Goodyear Tire Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).

The deputy commissioner gave numerous reasons for resolving the conflict in testimony in favor of the claimant. The full commission relied on this credibility determination in reaching its decision. We find that the commission’s findings of fact, including its credibility determination, are supported by credible evidence. “The fact that contrary evidence may be in the record is of no consequence if there is credible evidence to support the Commission’s findings.” Russell Loungewear v.Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986).

Therefore, we affirm the commission’s decision. Additionally, Agee’s request for attorney’s fees and costs under Code § 65.1-101 (now 65.2-713) is denied.


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