                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia

SEARS, ROEBUCK & CO. AND
 LUMBERMAN'S MUTUAL CASUALTY COMPANY

v.      Record No. 0208-95-2                    MEMORANDUM OPINION *
                                             BY JUDGE MARVIN F. COLE
DAVID OTIS PIERCE                                DECEMBER 5, 1995


            FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

                Lynne Jones Blain (Michelle P. Wiltshire; Morris and
                Morris, on brief), for appellants.
                B. Mayes Marks, Jr. (Marks & Lee, on brief), for
                appellee.



        Sears, Roebuck & Co. and its insurer (hereinafter

collectively referred to as "employer") appeal a decision of the

Worker's Compensation Commission awarding benefits to David O.

Pierce.      Employer contends that the commission erred in reversing

the deputy commissioner's credibility determination and finding

that Pierce proved that he sustained an injury by accident

arising out of and in the course of his employment on October 14,

1993.       Finding no error, we affirm.
                                    I.

        Pierce worked for employer as a lawn mower technician.     On

February 18, 1994, Pierce filed an application alleging a right

groin injury occurring at work on October 14, 1993.      The

Employer's First Report of Accident, filed with the commission on
        *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
January 24, 1994, indicated that Pierce strained his right groin

while lifting a tiller into a customer's vehicle on October 14,

1993.    The report also stated that Pierce reported his injury to

his supervisor, Willie Harris, on October 14, 1993.

        Pierce testified that on October 14, 1993, he picked up a

150-pound tiller in an attempt to place the tiller into a truck.

The tiller moved and fell out of the truck, causing Pierce to

grab it before it fell to the ground.    Pierce stated that he

informed Harris about the incident and that he felt something in

his stomach.
        Pierce continued to work in his regular job between October

14, 1993 and November 24, 1993.    On November 24, 1993,

Thanksgiving day, Pierce called the employee in charge of the

repair department and told her that he needed to see a doctor to

determine if he had sustained a hernia.    On November 25, 1993,

employer referred Pierce to Dr. J. Leo Crosier.

        Dr. Crosier examined Pierce on November 29, 1993.   Dr.

Crosier recorded a history of Pierce sustaining the groin injury

approximately two weeks prior, on November 14, 1993.     Dr. Crosier

also noted that Pierce told him he was in the process of lifting

a tiller at work when the pain started.    Dr. Crosier diagnosed a

"widened inguinal ring-possible inguinal hernia."    Dr. Crosier

referred Pierce to Dr. Benjamin H. Rice, a general surgeon.

        On December 6, 1993, Dr. Rice examined Pierce.   Dr. Rice

reported that Pierce told him he developed right groin pain while




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helping a customer lift a tiller on November 5, 1993.    Dr. Rice

diagnosed right groin pain with possible early hernia.   Dr.

Rice's Attending Physician's Reports, rendered in February and

March 1994, reflect the date of injury as October 14, 1993.

Physical therapy notes, dated February 16, 1994, reflect that

Pierce picked up a tiller at work on October 14, 1993 and "it got

away from him."

     On November 24, 1993, Pierce completed an "Associate

Statement of Injury," upon which he indicated that he sustained a

groin injury on November 5, 1993, while lifting a tiller out of a

truck.    In response to the question on the statement as to who

Pierce reported the injury to, it is recorded that, "[t]his

injury came on slowly, its hard for me to say the day, hour at

which it occurred."   Pierce remembered completing and signing

this statement, but he did not believe he wrote the portion of

the statement indicating a gradual injury.
     Harris, the lead person in employer's parts department,

testified that Pierce did not report an injury caused by lifting

a tiller on October 14, 1993.   Harris stated that on November 23,

1993, Pierce told him that he had a knot or a bump in his thigh

or leg.   Harris contended that Pierce never reported to him how

the injury occurred or that he was sure it happened at work.
                                 II.

     In denying Pierce's application, the deputy commissioner

found that Pierce did not meet his burden of proving an injury by




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accident arising out of and in the course of his employment.

Based upon his observation of Pierce at the hearing and a review

of the evidence indicating varying dates of injury, the deputy

commissioner found that Pierce's version of events was not

credible.

     In its December 30, 1994 opinion reversing the deputy

commissioner, the full commission found that Pierce testified to

an injury by accident occurring at a specific time and place.

The commission found that the Employer's First Report of Accident

corroborated Pierce's testimony, and that Harris' testimony and

the "Associate Statement of Injury" did not rebut Pierce's

evidence.   The commission also found that Dr. Rice's Attending

Physician's Report dated March 12, 1994 established Pierce's

disability.   The commission awarded temporary total disability

benefits to Pierce from October 14, 1993 through March 2, 1994.
                                III.

     Employer contends that the full commission arbitrarily

ignored the deputy commissioner's credibility determination and

failed to articulate a sufficient basis for its conclusion under

the requirements of our holding in Goodyear Tire & Rubber Co. v.

Pierce, 5 Va. App. 374, 383, 363 S.E.2d 433, 437 (1989).

However,
            [t]he principle set forth in Pierce does not
            make the deputy commissioner's credibility
            findings unreviewable by the commission.
            Rather, it merely requires the commission to
            articulate its reasons for reversing a
            specific credibility determination of the
            deputy commissioner when that determination



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             is based upon a recorded observation of
             demeanor or appearance of a witness. In
             short, the rule in Pierce prevents the
             commission from arbitrarily disregarding an
             explicit credibility finding of the deputy
             commissioner.


Bullion Hollow Enters., Inc. v. Lane, 14 Va. App. 725, 729, 418

S.E.2d 904, 907 (1992).

     In this case, as in Lane, upon a review of the deputy

commissioner's decision, we do not find a "specific recorded

observation" concerning any witness' demeanor or appearance

related to a credibility determination.    In his opinion, the

deputy commissioner merely stated that, "based upon the evidence

before us, we must conclude that [Pierce] has not met his burden

of proof."    The deputy commissioner also stated that, "[b]ased

upon our observation of [Pierce] at the hearing and our

examination of the evidence, we find that his version of events

simply is not credible."    "Absent a specific, recorded

observation regarding the behavior, demeanor or appearance of

[Pierce or Harris], the commission had no duty to explain its

reasons for . . . [accepting Pierce's version of events]."       Id.

Therefore, employer's argument is without merit.

     Moreover, when the commission's findings are supported by

credible evidence, as in this case, those findings are conclusive

and binding on appeal.     Ross Laboratories v. Barbour, 13 Va. App.

373, 377-78, 412 S.E.2d 205, 208 (1991).    Pierce testified that

he sustained a groin injury on October 14, 1993, when he picked

up a 150-pound tiller, put it into a truck, and then caught it as



                                   5
it fell.    He also testified that he reported the incident and his

injury to Harris on that day.   The Employer's First Report of

Accident supports Pierce's testimony.    The "Associate Statement

of Injury" also states that Pierce injured himself while lifting

a tiller.   Although the exact date of injury recorded in the

documentary evidence is inconsistent, the medical records of Drs.

Crosier and Rice and the physical therapy notes consistently

report a history of Pierce sustaining a groin injury while

lifting a tiller at work, which corroborated Pierce's testimony.
     Based upon Pierce's testimony and Employer's First Report,

together with the medical records, we find that credible evidence

supports the commission's decision that Pierce suffered an injury

by accident to his groin arising out of and in the course of his

employment on October 14, 1993.   "Although contrary evidence may

exist in the record, findings of fact made by the commission will

be upheld on appeal when supported by credible evidence."    Lane,

14 Va. App. at 730, 418 S.E.2d at 907.

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




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