                  COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Elder
Argued at Richmond, Virginia


PENCE NISSAN OLDSMOBILE, ET AL.
                                               OPINION BY
v.        Record No. 1416-94-2            JUDGE LARRY G. ELDER
                                               MAY 9, 1995
DARELL DONNEL OLIVER, SR.


       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Rodney A. Satterwhite (McGuire, Woods, Battle
          & Boothe, on briefs), for appellants.
          Louis D. Snesil (McDonald & Snesil, P.C., on brief),
     for appellee.



     Pence Nissan Oldsmobile and Merchants of Virginia Group Self

Insurance Association (appellant) appeal the Workers'

Compensation Commission's award of benefits to Darell Donnel

Oliver, Sr. (claimant) based on his November 13, 1992, work-

related injury by accident.   Appellant contends (1) the

commission erred in holding that the deputy commissioner

improperly relied on claimant's medical history records, and (2)

credible evidence does not support the commission's finding that

claimant suffered a back injury by accident.   Because the

commission is not bound by statutory and common law rules of

evidence, we remand for reconsideration pursuant to the

commission's Rule 2.2 regarding consideration of evidence.

                                  I.

                                 FACTS

     Claimant was an automobile service technician who worked for

Pence Nissan Oldsmobile.    Claimant testified that on November 13,
1992, while lifting a one-hundred pound engine block, he felt a

stiffness or pull in his back, unaccompanied by pain.     Claimant

continued his work-shift until 5:00 p.m. that day and then went

home.    The next morning, claimant noticed pain that had started

to develop in his back.

        Claimant sought medical treatment on November 17, 1992, from

Dr. Vaclav Vokac, who diagnosed a lumbosacral strain.     Based on

claimant's statements to him, Dr. Vokac attributed the injury to

a May 6, 1991, car accident that was merely aggravated by the

lifting of heavy objects.    Dr. Vokac's initial report of

claimant's injury does not mention the November 13, 1992,

incident as a cause of claimant's injury.
        A physician's report by Dr. Vincent Dalton on October 26,

1993, indicates that claimant "injured his back while lifting

heavy engine blocks in the shop."      Dr. Dalton, who diagnosed

degenerative joint disease accompanied by muscle spasms, stated

that he could not necessarily correlate any pre-existing

degenerative disc disease with the injury sustained on November

13, 1992.    Dr. Dalton's records indicate that claimant reinjured

his back on November 24, 1992, a fact not developed at the deputy

commissioner's hearing.

        Another physician's report is dated September 24, 1993, and

was prepared by Dr. Blake Dennis, who treated claimant between

December 11, 1992 and May 20, 1993.     Dr. Dennis reached the same

conclusion as Dr. Dalton, stating that "[claimant] injured back




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lifting heavy engine blocks in the shop."

     Finally, in his statement to an insurance representative,

claimant mentioned that he had back problems originating with on-

the-job bending and squatting.   Claimant also stated that when he

installed a transmission during the week preceding November 13,

1992, he experienced pain in his back and testified to this fact

at the deputy commissioner's hearing.

     Claimant filed a claim for workers' compensation benefits on

October 7, 1993.   The deputy commissioner heard evidence and

filed an opinion on January 20, 1994, in which he ruled that, in

light of claimant's inconsistent reports of his accident to

doctors, he failed to prove an injury by accident.   The

commission reversed the deputy commissioner's ruling and awarded

claimant benefits beginning November 17, 1992.    The commission

further stated that it could not rely on history relayed by a

claimant to determine how an accident occurred.
                                 II.

               CONSIDERATION OF MEDICAL HISTORIES

     As the Supreme Court of Virginia has stated, "injuries

resulting from repetitive trauma . . . as well as injuries

sustained at an unknown time, are not 'injuries by accident'

within the meaning of Code § 65.1-7."   Morris v. Morris, 238 Va.

578, 589, 385 S.E.2d 858, 865 (1989)(emphasis added).   In this

case, the commission was confronted with conflicting accounts of

when claimant's injury was sustained, and it was up to the




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commission to decide in which capacity these accounts could be

used in awarding or denying claimant compensation.   Unlike the

practice in civil cases, Rule 2.2 of the Rules of the Workers'

Compensation Commission provides, in part:

          Except for rules which the Commission
          promulgates, it is not bound by statutory or
          common law rules of pleading or evidence nor
          by technical rules of practice.

               The Commission will take evidence at
          hearing and make inquiry into the questions
          at issue to determine the substantial rights
          of the parties, and to this end hearsay
          evidence may be received.


See, e.g., Piedmont Manuf. Co. v. East, 17 Va. App. 499, 512-13,

438 S.E.2d 769, 777 (1993)(recognizing that commission is not

bound by statutory or common law rules of evidence); Cox v.

Oakwood Mining, Inc., 16 Va. App. 965, 969, 434 S.E.2d 904, 907

(1993)(recognizing that commission's rules permit hearsay

evidence); Baker v. Babcock & Wilcox Co., 11 Va. App. 419, 426,

399 S.E.2d 630, 634 (1990)(stating that hearsay evidence is

admissible before the commission); Franklin Mtg. Corp. v. Walker,
5 Va. App. 95, 99, 360 S.E.2d 861, 864 (1987)(recognizing the

permissible use of hearsay without corroboration), aff'd en banc,

6 Va. App. 108, 367 S.E.2d 191 (1988).   This Court defers to the

commission's interpretation of its rules and will affirm the

commission's findings when supported by credible evidence.     See,

e.g., James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515,

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



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     Because the commission may choose to consider the common law

rules of evidence when the underlying rationale for the rule is

helpful in reaching a decision, we have mentioned and discussed

the common law rules of evidence in our past opinions.    For

example, in Board of Supervisors of Henrico County v. Martin, 3

Va. App. 139, 348 S.E.2d 540 (1986), the claimant's hearing

testimony proved that his accident was not compensable.   The

commission nonetheless decided otherwise and relied on the

claimant's medical histories given to his physician as proof of

how the accident occurred.   We held that the commission's

findings violated Massie v. Firmstone, 134 Va. 450, 462, 114 S.E.
652, 656 (1922), which stated that a party is bound by his or her

unequivocal testimony at trial.   Any other language in Martin

regarding the common law rules of evidence was dicta.

     In Kane Plumbing, Inc. v. Small, 7 Va. App. 132, 371 S.E.2d

828 (1988), we held that the commission's statement that it would

not rely on claimant's medical histories to determine how an

accident occurred did not imply that the commission failed to

consider the histories for other purposes, such as impeaching

claimant or explaining the basis of the doctor's opinion.    In his

concurring opinion in Small, Judge Moon elucidated the common law
differences between a prior inconsistent statement and a party

admission.   See id. at 139, 371 S.E.2d at 833.

     We recently re-visited the issue of the proper use of

medical histories in McMurphy Coal Co. v. Miller, __ Va. App. __,



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__, __ S.E.2d __, __ (1995).     In response to the commission's use

of the dicta in Martin, we wrote that under common law rules of

evidence, medical histories are admissible substantively as party

admissions. 1   Id.   In any event, Miller must not be read to hold

that the commission must follow common law rules of evidence.

        After reviewing the evidence in this case, the deputy

commissioner ruled that, in light of claimant's inconsistent

reports of his accident to doctors and the insurance agent, he

failed to prove an injury by accident.     The commission reversed

the deputy commissioner's ruling and awarded claimant benefits

beginning November 17, 1992.     The commission further stated that,

based on Martin, it could not rely on history taken from a
claimant to determine how an accident occurred.     The commission's

broad statement is contrary to the common law principles

enunciated in Martin, Small, and Miller, but more importantly, is

contrary to Rule 2.2 which gives the commission "[t]he discretion

to give probative weight to hearsay statements in arriving at its

finding of facts."     Williams v. Fuqua, 199 Va. 709, 714, 101

S.E.2d 562, 566 (1958).

        We therefore remand this case to the commission for

consideration consistent with this opinion.

                                              Reversed and remanded.
    1
       See Charles E. Friend, The Law of Evidence in Virginia
§ 18-34 (4th ed. 1993)("Party admissions are admitted to prove
the truth of the matter asserted, and may be considered by the
trier of fact for that purpose")(emphasis added)(footnote
omitted).



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