Utility Trailer, etc et al. v James Arville Prater

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Elder and Annunziata
Argued at Salem, Virginia
UTILITY TRAILER MANUFACTURING and
LIBERTY MUTUAL FIRE INSURANCE
COMPANY MEMORANDUM OPINION* BY
v. 	Record No. 0823-95-3 	JUDGE JAMES W. BENTON, JR.
APRIL 23, 1996
JAMES ARVILLE PRATER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Monica L. Taylor (Christopher M. Kite;
Gentry, Locke, Rakes & Moore, on briefs), for
appellants.
Ginger Jonas Largen (J. D. Morefield;
Morefield, Kendrick, Hess & Largen, P.C., on
brief), for appellee.
The employer, Utility Trailer Manufacturing, contends that
the commission erred in failing to consider the employer's cross
appeal and finding that James Arville Prater proved a causal link
between his disability and a work related incident. 	We affirm
the commission's award.
I.
At the evidentiary hearing, Prater testified that on May 10,
1993, he and other employees were building a second level onto a
stockroom. 	They were lifting 500 pound steel flooring slabs and
carrying them on narrow beams. 	When Prater and a group of co-
workers lifted the third flooring slab, Prater injured his lower
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

- 2 -
back. 	He told his co-workers that he had hurt his back, and he
did no more lifting that day. 	Later that day, he felt pain in
his legs.
The next day, Prater informed his supervisor, Don Ross, that
he injured his back. 	Prater testified that he continued to work
with pain and did not see a doctor because his wife was pregnant
and he needed to work. 	He also testified that he complained on
several occasions to Ross and his co-workers that he was having
back trouble.
Ross testified that Prater did complain to him of a back
injury in May or the early summer. 	He testified he took no
action because he regularly heard complaints from employees.
Ross could not recall whether Prater told him how he had hurt his
back and did not recall Prater making further complaints until
several months later when Prater left work complaining of back
pain.
Prater testified that on October 13, 1993, his back problems
flared up after operating a jackhammer. 	He then made an
appointment to see his doctor and left work. 	Before Prater could
receive medical treatment from his doctor, the employer made an
appointment for him to see Dr. James McDowell. 	Prater told Dr.
McDowell that he injured his lower back while laying flooring at
the plant. 	Dr. McDowell diagnosed chronic low back pain and
ordered Prater to cease work.
Dr. McDowell also referred Prater to Dr. Larry Lipscomb, an

- 3 -
orthopaedic specialist. 	According to Dr. Lipscomb, Prater
reported that "sometime in May '93, [he was] working with heavy
steel" and injured his back. 	After concluding that Prater was
not a surgical candidate, Dr. Lipscomb referred Prater to Dr.
David Sossamon, a chiropractor. 	In a letter to Dr. Lipscomb
dated February 8, 1994, Dr. Sossamon reported that Prater
informed him that "he lifted steel in May, 1993 and hurt his low
back." 	Based on his "interpretation of events, examinations and
MRI," Dr. Sossamon opined that Prater "injured his lumbar spine
on the job sometime in May, 1993."
The deputy commissioner accepted Prater's testimony
regarding the incident that occurred on May 10, 1993, and ruled
that the evidence proved an injury by accident. 	However, he
found insufficient evidence causally relating Prater's injury to
the incident and denied Prater's claim. 	Prater filed an
application for review on the issue of causation. 	The employer
filed a cross appeal challenging the deputy commissioner's
finding that Prater had suffered an injury by accident on May 10,
1993.
II.
Viewed in its entirety, the commission's opinion establishes
that the commission considered and decided the issue raised by
the employer's cross appeal, i.e., whether the evidence proved an
injury by accident. 	The opinion recites the evidence in the
record that proved Prater suffered an injury by accident. 	That

- 4 -
recitation included Prater's unimpeached testimony, the
supervisor's testimony that Prater told him in May that he hurt
his back, and the testimony of Prater's co-workers that Prater
complained of back pain. 	The commission then ruled as follows:
From this record the Deputy Commissioner
concluded that [Prater] did sustain an
accident in May, 1993, while lifting steel
flooring. 	He further found, however, that
the medical records do not causally relate
his disability in November, 1993, to the
accident in May. 	We disagree with this
latter determination.
Although the commission could have more explicitly stated
that the evidence it reviewed was credible and proved an injury
by accident, we conclude that the commission tacitly and
implicitly ruled that an injury by accident was proved by
credible evidence. 	That ruling is manifest from the commission's
recitation of the two findings of the deputy commissioner and the
commission's explicit statement that it disagreed only with the
finding regarding causality.
The commission's recitation of the evidence concerning the
onset of injury also refutes the employer's claim. 	The
commission was not required to make a specific determination that
Prater's testimony was credible. 	Goodyear Tire & Rubber Co. v.
Pierce, 5 Va. App. 374, 383, 363 S.E.2d 433, 438 (1987). 	There
was no evidence before the commission contrary to Prater's
testimony, and the deputy commissioner made no finding that
Prater's testimony was incredible. 	In determining whether
credible evidence supports the commission's ruling, "[w]e will

- 5 -
not substitute form over substance." 	Island Creek Coal Co. v.
Breeding, 6 Va. App. 1, 11, 365 S.E.2d 782, 788 (1988). 	Prater's
testimony credibly proved that he suffered an injury by accident
on May 10, 1993, and the commission so ruled in its opinion on
review.
III.
"The actual determination of causation is a factual finding
that will not be disturbed on appeal if there is credible
evidence to support the finding." 	Ingersoll-Rand Co. v. Musick,
7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989); Code § 65.2-706.
All the medical reports link the cause of Prater's injury to the
work related injury. 	However, we need not look beyond Dr.
Sossamon's report which the commission relied upon. 	When a
commission opinion is based upon medical findings, that
resolution is a factual finding based on credible evidence that
binds this Court. 	Rose v. Red's Hitch & Trailer Serv., Inc., 11
Va. App. 55, 60, 396 S.E.2d 392, 395 (1990).
Accordingly, we affirm the commission's award.
Affirmed.