Kane Plumbing, Inc. v. Small

• Decision Date: 06 September 1988
• Docket Number: No. 0350-87-2,0350-87-2
• Parties: KANE PLUMBING, INC. and Manufacturers Alliance Insurance v. James V. SMALL. Record
• Court: Virginia Court of Appeals

Page 828

371 S.E.2d 828

7 Va.App. 132

KANE PLUMBING, INC. and Manufacturers Alliance Insurance v. James V. SMALL.

Record No. 0350-87-2.

Court of Appeals of Virginia.

Sept. 6, 1988.

Marianne Nelms (Sands, Anderson, Marks & Miller, Richmond, on brief), for appellants.

James V. Small, pro se.

Present: BENTON, MOON and HODGES, JJ.

BENTON, Judge.

Kane Plumbing Company, Inc. contends that the Industrial Commission erred in finding (1) that a knee injury suffered by James V. Small was an injury by accident, and (2) that Small gave timely notice of that injury. Because credible evidence supports the commission's findings that Small sustained an injury by accident arising out of and in the course of his employment and that Small gave timely notice of that injury, we affirm the commission's decision.

Small's testimony before the deputy commissioner described his duties at the time of his injury. Small was employed by Kane as a plumber's helper and his job duties entailed "[w]hatever the [plumber] tells me to do." In February, 1986, he was digging a twelve inch wide ditch for a gas line. The ditch was so narrow it was practically impossible to stand in the ditch unless one foot was in front of the other. As he stood with his left foot behind him, he pushed down with his right foot on the shovel and "evidently ... hit a rock ... or something." He then "turned somehow in the ditch" and his "knee collapsed." He informed J. Jones, whom he described as his immediate supervisor, of his injury that day. By the end of the work day Small had developed a knot on his knee.

Jones testified that Small told him that he had injured his knee while working in the ditch, and that prior to that day he had never heard Small complain of his knee hurting. Jones stated that, although he was the plumber and Small was a helper, he did not report the injury to anyone else because he was not Small's supervisor and it was not his responsibility.

Small further testified that he had difficulty remembering the exact date in February he was injured. He put February 11, 1986, as the date of the accident on the "Employer's First Report of Accident" because the president of Kane, the president's secretary, and he had examined the work orders and discovered that February 11 was the date he was digging the gas line ditches. However, Cecil Ligon, the treasurer of the company, testified that work orders showed that February 6, 1986, was the day that Small was digging gas line ditches with Jones. The deputy commissioner then allowed Small to amend his application to state February 6, 1986, as the date of the accident.

The day following the accident Small went to Dr. Michael Sheehan. Dr. Sheehan's initial office notes, dated February 10, 1986, indicated "knee injury--Job Related ... was shoveling in a ditch. Gradual onset of pain left ... knee afterwards. No prior knee problems." Dr. Sheehan's report to the Industrial Commission indicated February 6, 1986, as the date of the accident and diagnosed Small's problem as bursitis. After his knee condition failed to resolve after several months, Small was referred to an orthopaedic specialist, Dr. Douglas Jessup. Dr. Jessup surgically repaired a tear in the lateral meniscus of the knee. Dr. Jessup's initial notes indicated that "[t]here is no single episode of trauma, but he feels that it began when he was digging a ditch at work." Jessup's report to the Industrial Commission stated that Small "[w]as digging ditches on 2/11/86 all day, that night he could not walk and had a knot on his left knee."

The deputy commissioner denied Small's application for workers' compensation, finding that Small's knee condition was caused by repetitive trauma and that he had failed to specify an incident that initiated the onset of his knee condition. The full commission reversed the deputy commissioner, finding that, although neither of Small's physicians obtained a history of what they felt was a single incident of trauma, the histories established that the cause of the injury was the digging in the ditch as described by the employee. The full commission, citing Board of Supervisors v. Martin, 3 Va.App. 139, 348 S.E.2d 540 (1986), further noted that the commission should not rely on a history taken from a claimant to determine how an accident occurred.

In order to recover on a workers' compensation claim, a claimant must prove: (1) an injury by accident, (2) arising out of and (3) in the course of his employment. Code § 65.1-7; Bradley v. Philip Morris, U.S.A., 1 Va.App. 141, 143, 336 S.E.2d 515, 516 (1985); Richmond Memorial Hospital v. Crane, 222 Va. 283, 285, 278 S.E.2d 877, 878 (1981). To establish an "injury by accident," a claimant must prove "an identifiable incident that occurs at some reasonably definite time" and that causes "an obvious sudden mechanical or structural change in the body." Bradley, 1 Va.App. at 144, 336 S.E.2d at 517. An "injury by accident" has three components: (1) an identifiable incident; (2) a sudden mechanical or structural change in the body; and (3) a causal connection between the incident and bodily change. Id. The commission's findings of fact as to these issues are conclusive and binding on this Court and will be upheld if supported by credible evidence. Dublin Garment Co. v. Jones, 2 Va.App. 165, 167, 342 S.E.2d 638, 638 (1986); Russell Loungewear v. Gray, 2 Va.App. 90, 92, 341 S.E.2d 824, 825 (1986).

Kane contends that because Small failed to connect his injury with an action taken at a particular time at work, see Badische Corp. v. Starks, 221 Va. 910, 913, 275 S.E.2d 605, 607 (1981), and failed to establish the actual date on which the injury occurred, the commission erred in its finding that Small proved an identifiable incident. Kane specifically contends that the commission erred in finding that an identifiable accident occurred because the commission failed to recognize that it could consider statements from Small's medical histories for the purposes of impeaching the claimant or explaining the basis of a doctor's opinion. Kane argues that had the commission considered Small's medical histories for those purposes, Small's testimony would have been sufficiently impeached to disprove the occurrence of an identifiable accident.

We find no evidence in the record to support Kane's contention that the commission failed to consider the medical histories for the purposes of impeaching the claimant's testimony or explaining the basis of the doctors' opinions. Although the commission, citing Board of Supervisors v. Martin, 3 Va.App. 139, 348 S.E.2d 540 (1986), stated that it should not rely on the histories to determine how the accident occurred, this statement does not imply that the commission failed to consider the histories for other purposes. While the commission noted that the histories did not reflect that a single incident of trauma occurred, it also noted that the medical histories did not sufficiently impeach Small's testimony because they established the causation of Small's injury as "digging in the ditch as described by [Small]."

We further find that the medical records that Kane contends that the commission failed to consider do not impeach Small's testimony to such an extent that this Court could hold there is no credible evidence to support the commission's finding that there was an injury by accident. Kane argues that several statements from Small's medical histories are inconsistent with Small's account of the accident and support its contention that Small's injury resulted from cumulative trauma. ¹ "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); Board of Supervisors v. Taylor, 1 Va.App. 425, 431, 339 S.E.2d 565, 568 (1986); Baskerville v. Saunders Oil Co., 1 Va.App. 188, 191, 336 S.E.2d 512, 513 (1985); Boyd's Roofing Co. v. Lewis, 1 Va.App. 93, 95, 335 S.E.2d 281, 283 (1985). The commission's findings are binding even if the weight of the evidence is contrary to those findings. See C.D.S. Const. Services v. Petrock, 218 Va. 1064, 1070, 243 S.E.2d 236, 240 (1978); Kelly v. Pendleton Constr. Co., 182 Va. 191, 194, 28 S.E.2d 621, 623 (1944).

Viewed in the light most favorable to Small, the party prevailing below, Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.App. 503, 504, 339 S.E.2d 916, 916 (1986), Small's testimony, Small's medical records, and Jones's testimony provide credible evidence to support Small's contention that he suffered an injury by accident. Small testified that as he was digging a gas line ditch, he hit a rock, which caused him to turn in the ditch, and his knee collapsed. Jones testified that he had never heard Small complain of prior knee problems. Furthermore, Small's medical records indicate he had no prior history of knee problems. This evidence dispels Kane's contention that Small's injury was caused by cumulative trauma. The medical records further establish that Small's knee problems were caused by "a tear of the...