                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Humphreys and Senior Judge Overton


CLINCHFIELD COAL COMPANY
                                                                MEMORANDUM OPINION*
v.     Record No. 2256-03-3                                         PER CURIAM
                                                                  DECEMBER 30, 2003
IKE BOWMAN


             FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 (Ramesh Murthy; Anne L. Musgrove; Penn, Stuart & Eskridge, on
                 brief), for appellant.

                 (Susan D. Oglebay, on brief), for appellee.


       Clinchfield Coal Company (employer) contends the Workers’ Compensation

Commission erred in (1) giving deference to the deputy commissioner’s credibility determination

based upon Ike Bowman’s (claimant) “appearance” at the hearing, where claimant did not give

live testimony; and (2) finding that claimant proved he sustained an injury by accident arising

out of and in the course of his employment on April 15, 2002. Upon reviewing the record and

the parties’ briefs, we conclude that this appeal is without merit. Accordingly, we summarily

affirm the commission’s decision. Rule 5A:27.

                                                   I.

       We find no merit in employer’s contention that the commission erroneously gave

deference to the deputy commissioner’s findings and “did not make its own factual

determination but, instead, concluded that [employer’s] ‘evidence’ did not overcome the Deputy

Commissioner’s factual determination that [claimant] ‘appeared at the hearing to be a credible


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
witness.” To the contrary, in its opinion, the commission explicitly rejected any reliance upon

the deputy commissioner’s credibility determination based upon claimant’s appearance by

stating as follows:

                        We note and are troubled by the Deputy Commissioner’s
               statement that the claimant appeared at the Hearing to be credible,
               when, in fact, the claimant did not testify in person at the Hearing.
               It is not possible to determine from the record the basis for the
               Deputy Commissioner’s credibility observation. However, our
               review of the record and the deposition testimony [of claimant,
               claimant’s wife, and Randall Meade] leads us to conclude that the
               claimant has proven by the weight of the evidence that he suffered
               a compensable injury by accident.

       Thus, the commission, as fact finder, reviewed the entire record, including the witnesses’

deposition testimony and the content of the medical records, and made its own determination as

to the credibility of the witnesses and the sufficiency of the evidence. It did not rely upon any

credibility determination made by the deputy commissioner based upon claimant’s appearance.

Accordingly, we find no merit in employer’s argument that this case should be reversed and

remanded to the commission for a proper credibility determination.

                                                   II.

       On appeal, we view the evidence in the light most favorable to the prevailing party

below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

       Claimant, who had worked for employer for twenty-seven years, testified in his August

12, 2002 deposition that he was not having any physical problems before he began work on April

15, 2002. Claimant, a roof bolter, testified that he arrived at work that day and changed his

clothes in the bathhouse. Then he participated in a fifteen-minute “safety talk,” held outside.

After that meeting, he and the rest of his crew went inside the mine by motorized personnel

carrier, and he began to work. The travel inside the mine took fifteen to twenty minutes.

Claimant stated that he was working with another roof bolter, Steve Boggs. Claimant testified


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that he bent between six and eight bolts before installing them. He installed two bolts without

incident. While installing a third bolt, he felt pain in his groin area. He stated that this happened

thirty to forty minutes after he began to work underground.

          Claimant stopped working and reported his injury to his supervisor, Benny Johnson, who

was thirty to forty feet away. Claimant was eventually taken to the surface. He showered in the

bathhouse, and was then referred to Dr. T. Patel. Dr. Patel “said something about a hernia” and

referred claimant to Dr. David Smith for surgical care.

          On April 16, 2002, Dr. Smith recorded a history of claimant feeling “burning and

stinging in his right groin after lifting a heavy roof bolt a[t] work.” Dr. Smith noted that claimant

“works in a mine putting in roof bolts.” Dr. Smith confirmed the diagnosis of right inguinal

hernia and surgically repaired the hernia on May 6, 2002. Dr. Smith opined that based upon the

history given to him by claimant, the April 15, 2002 incident at work resulted in claimant’s

hernia.

          Meade, who worked for employer as chief electrician in April 2002, gave a sworn

statement and deposition testimony indicating that he overheard a portion of a conversation on

April 15, 2002 that took place in the bathhouse around 7:15 a.m. between claimant and a

co-worker, Earl Crabtree. The portion of the conversation overheard by Meade lasted

approximately fifteen seconds. Meade, who did not see claimant and Crabtree as they

conversed, asserted that he was familiar with their voices and could distinguish them. Meade

stated that claimant asked Crabtree about hernias and about the burning and swelling associated

with them. Meade stated that Crabtree told claimant that he had reported his own hernia as a

workers’ compensation injury. Meade admitted that he noticed nothing unusual about claimant

at the safety meeting that lasted approximately fifteen minutes and did not observe claimant in

pain. Claimant denied experiencing any pain before his April 15, 2002 accident. In addition, he

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did not recall having any conversation with Crabtree about hernias on the morning of April 15,

2002. Crabtree did not testify before the commission.

       Claimant’s wife testified that she did not notice anything unusual about claimant the day

before the April 15, 2002 accident and that he did not complain of any pain before the accident.

       Dr. Smith reviewed Meade’s sworn statement, but stated that it was “not up to me to

challenge [claimant’s] history.” Dr. Smith pointed out that “[t]he history [claimant] gave and

subsequent findings were certainly consistent.”

       In ruling that claimant sustained his burden of proof, the commission found as follows:

                        The claimant described a particular event at work,
               occurring at a reasonably specific time and place, resulting in an
               obvious and sudden mechanical change in his body. The medical
               record reflects that he reported the injury to his health care
               providers in a timely manner, and in a fashion that is entirely
               consistent with his sworn testimony. Further, there is nothing in
               the medical record suggesting that the claimant’s injury occurred
               in any manner different from what was reported to his doctors, or
               which might cast doubt on his testimony. The claimant maintained
               that he was in good health before his alleged accident, and this
               testimony is corroborated by that of his wife, and by Meade’s
               failure to observe anything suggesting that the claimant was in any
               pain or discomfort before he went underground on April 15, 2002.

       In so ruling, the commission recognized the following:

                       Even assuming that the conversation overheard by Meade
               occurred as alleged, it is not sufficient to overturn the Deputy
               Commissioner’s determination. While Meade testified the
               claimant asked Crabtree about hernias, he did not hear the claimant
               state that he, in fact, was suffering from a hernia himself. Other
               than Meade’s recall of an overheard conversation, there is no
               evidence in the record suggesting that the claimant was in any way
               injured or impaired the day before the accident alleged, that he was
               acting injured or in any way in pain prior to beginning work on
               April 15, or suggesting any other mechanism of injury.

       “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,

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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).

       In rendering its decision, the commission considered the witnesses’ sworn testimony and,

as fact finder, gave little probative weight to Meade’s testimony. Claimant’s testimony, which

was corroborated by his wife’s testimony and Dr. Smith’s notes, provides credible evidence to

support the commission’s finding that claimant proved an identifiable incident that resulted in a

compensable injury. “The fact that there is contrary evidence in the record is of no consequence

if there is credible evidence to support the commission’s findings.” Id.

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

                                                                                         Affirmed.




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