                    COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Benton and Senior Judge Hodges
Argued at Norfolk, Virginia


KENNETH W. ZERBE
                                          MEMORANDUM OPINION *
v.         Record No. 1081-94-1        BY JUDGE JOSEPH E. BAKER
                                             MAY 30, 1995
KENKEV COMPANY and
 EMPLOYERS INSURANCE OF WAUSAU


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           Jill Roseland (Carlton F. Bennett; Bennett
           and Zydron, P.C., on brief), for appellant.

           Fay F. Spence (Gaidies, Young & Spence, on
           brief), for appellees.



     Kenneth W. Zerbe (claimant) contends that the Workers'

Compensation Commission (commission) erred in disregarding the

deputy commissioner's credibility determination and in finding

that claimant failed to prove that his herniated disc was caused

by an identifiable incident which precipitated a sudden

mechanical change in his body.    Finding no error, we affirm the

commission's decision.

     At the evidentiary hearing, claimant testified that at 10:00

a.m. on April 12, 1993, while he was in the process of digging

thirty-two post holes, he experienced a sharp pain in his lower

back as he plunged the post-hole digger into the thirteenth or

fourteenth hole.   However, in a recorded statement given by

claimant to employer's insurance carrier shortly after the
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
incident, claimant did not provide any description of a specific

identifiable incident.    Rather, he stated that he experienced low

back pain while digging post holes on April 12, 1993, and

performing additional work on April 13 and 14, 1993.   Contrary to

claimant's assertion at the hearing, there is nothing in the

recorded statement to indicate that claimant was impaired by

medication, that he did not understand the questions, or that he

was unable to give coherent answers.    Moreover, the insurance

adjuster testified that claimant did not sound impaired when he

gave the recorded statement.
     The deputy commissioner's finding that claimant proved a

compensable injury by accident was based upon the substance of

claimant's hearing testimony and the contents of the medical

records, rather than upon claimant's demeanor or appearance.

Accordingly, the credibility issue was as determinable by the

full commission as it was by the deputy.    Goodyear Tire & Rubber

Co. v. Pierce, 5 Va. App. 374, 383, 363 S.E.2d 433, 438 (1987);
see also Kroger Co. v. Morris, 14 Va. App. 233, 236, 415 S.E.2d

879, 880-81 (1992).

     On appellate review, we construe the evidence in the light

most favorable to the party prevailing before the commission.

R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390

S.E.2d 788, 788 (1990).   "In order to carry his burden of proving

an 'injury by accident,' a claimant must prove that the cause of

his injury was an identifiable incident or sudden precipitating



                                - 2 -
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).    "Factual findings of the

commission are binding on appeal.    Code § 65.1-98 [now Code

§ 65.2-706].   [Only] if no credible evidence exists in support of

a factual finding, [will] the issue of sufficiency of the

evidence [be] one of law for this Court to decide."     Spruill v.

C.W. Wright Const. Co., 8 Va. App. 330, 333, 381 S.E.2d 359, 360

(1989).   Unless we can say as a matter of law that claimant's

evidence sustained his burden of proof, the commission's finding

is binding and conclusive upon us.     Tomko v. Michael's Plastering

Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     Claimant received medical treatment for his back pain from

Patient First and Dr. Colin Hamilton, an orthopedic surgeon.

Their medical records do not reflect that claimant mentioned a

specific identifiable incident.    Rather, the records merely refer

to claimant's symptoms commencing after digging post holes.

     The commission was entitled to determine credibility and to

give little weight to claimant's hearing testimony, which was

inconsistent with his recorded statement and the medical records.

Based upon claimant's recorded statement and the medical

records, we cannot say as a matter of law that his evidence

sustained his burden of proving a specific identifiable incident

as required under the Workers' Compensation Act.    Thus, the

commission did not err in denying him compensation.



                               - 3 -
For these reasons, we affirm the commission's decision.

                                             Affirmed.




                         - 4 -
BENTON, J., dissenting.



     At the evidentiary hearing Zerbe appeared pro se and

testified in response to the deputy commissioner's questioning as

follows:
           Q: And can you tell us if anything unusual
           happened that day?

           A: Yes, ma'am. I was digging some post
           holes and about the thirteenth or fourteenth
           hole, while I was thrusting the post hole
           diggers into the ground, I experienced a
           sharp pain in my lower back. At that time I
           thought it was a pinched nerve. I took a
           small break and walked over and took a few
           sips of my drink, stretched a little bit, and
           tried to stretch it out.
           Q:   About what time was this, sir?

           A: This was, to the best of my recollection,
           around 10 o'clock in the morning.

           Q:   All right.

           A: Realizing that I was the only one there,
           and had to get these things done, I tried to
           continue on.


     The employer's attorney sought to impeach Zerbe by

questioning him concerning the statements Zerbe had made to the

employer's insurance agent on the telephone.      In response to her

questioning, Zerbe continued his testimony as follows:
          Q: Mr. Zerbe, how many holes did you do
          during the day on April 12th?

           A:   Thirty-two.

                   *    *     *    *      *   *    *

           Q: And do you recall speaking with [the
           insurance agent] on May the 20th about your
           case?


                                  - 5 -
          A:   Yes, I do.

          Q: And do you remember him asking you if
          there was any particular hole that the pain
          started on?

          A:   Yes, ma'am, I do.

          Q: And isn't it true that you told him that
          there was no particular hole, that it was
          from digging all the holes?

          A: No, ma'am. I told him I couldn't
          possibly remember exactly which hole it was.

          Q: Didn't you tell him that it was a gradual
          thing that developed as you dug all the holes
          and you could feel it as you would go into
          the post holes?
          A: I don't know if that's exactly what I
          told him. At that point in time you have to
          understand I was -- had no idea that this
          claim could possibly be turned down from it
          not being a particular accident. I thought
          he was investigating me to find out whether
          or not I actually was hurt on the job. Okay.
           I didn't know I had to specify exactly which
          hole. I didn't know that I had to do all of
          that. So, I told him that halfway through I
          was in pain. I had experienced pain and had
          to keep digging these holes and it got worse
          as I went.


     Indeed, the transcript of the telephone interview reflects

that during the course of the telephone interview, in which the

agent made inquiries suggesting that the pain occurred at an

imprecise time, Zerbe stated:
          Ah, I can't really pinpoint a certain hole,
          you know, I felt it when I was jamming the
          post hole diggers down into the hole, I could
          feel it, but I can't tell you ah, any one
          certain hole that I really felt it on.


Thus, in both his recorded statement to the insurance agent and



                               - 6 -
his testimony at the evidentiary hearing, Zerbe testified that

when he was "about halfway through" he injured his back while

pushing the post hole digger "into the hole."

     After he was informed that he had to more precisely identify

the hole, Zerbe testified at the evidentiary hearing that it was

the "thirteenth or fourteenth hole."   Zerbe explained during his

testimony at the evidentiary hearing that he sought to more

precisely identify the particular hole when he was told after his

recorded statement that he had to specify a particular hole.    He

also testified that he believed the insurance agent was concerned

about "whether or not [he] actually was hurt" and not whether he

could precisely identify the precise hole.
     The commission's findings that Zerbe's recorded statement

"contains no description of an accident" is not supported by

credible evidence.   Zerbe's statement that he was injured "when

. . . [he] was jamming the post hole diggers down into the hole"

is precisely an event that proves an "identifiable incident."

See Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865

(1989).

     Furthermore, the deputy commissioner was the fact finder who

was able to observe Zerbe's demeanor when Zerbe testified and

explained the basis of his response during the telephone

interview.   The commission's finding that it found from the

recorded statement no indication that Zerbe was injured as a

result of "any particular activity at any particular time" is




                               - 7 -
both plainly wrong and made in contravention of Goodyear Tire and

Rubber Co. v. Pierce, 5 Va. App. 374, 363 S.E.2d 433 (1987).

Without any adequate basis, the commission has disregarded the

deputy commissioner's assessment of Zerbe's testimony and

explanation for his inability to specify the particular hole in

the recorded statement.   Moreover, Zerbe's recorded statement and

his testimony are both consistent in the assertion that Zerbe was

injured when he jammed the digger into one of the holes.    His

diligence in completing the work while in pain does not convert

his injury by accident to an injury caused by repetitive trauma.
     For these reasons, I would reverse the commission's denial

of an award to Zerbe.




                               - 8 -
