American First Properties, et al v Shirley Tucker

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
SHIRLEY A. TUCKER
v. 	Record No. 1933-95-1
AMERICAN FIRST PROPERTIES
AND
TRANSPORTATION INSURANCE COMPANY MEMORANDUM OPINION*
AND 	PER CURIAM
MARCH 19, 1996
AMERICAN FIRST PROPERTIES
AND
TRANSPORTATION INSURANCE COMPANY
v. 	Record No. 1960-95-1
SHIRLEY A. TUCKER
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Shirley A. Tucker, pro se, on briefs).
(William C. Walker; Donna White Kearney; Taylor &
Walker, on briefs), for American First Properties and
Transportation Insurance Company.
Shirley A. Tucker ("claimant") contends that the Workers'
Compensation Commission erred in suspending her compensation
benefits as of May 25, 1994 on the ground that she unjustifiably
refused selective employment procured for her by First American
Properties ("employer"). 	(Record No. 1933-95-1). 	Employer and
its insurer filed a cross-appeal contending that the commission
erred in finding that Tucker sustained an injury by accident
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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arising out of and in the course of her employment. 	(Record No.
1960-95-1). 	Upon reviewing the record and the briefs of the
parties, we find that these appeals are without merit.
Accordingly, we affirm the commission's decision.
Background
On appeal, we construe 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). 	So
viewed, the evidence proved that Tucker worked for employer as a
housekeeper. 	On February 21, 1994, Tucker moved a refrigerator
to clean behind it and felt pain while moving the refrigerator.
She felt more severe pain when she tried to stand up after
cleaning behind the refrigerator. 	Employer's first report of
accident prepared by Tucker's supervisor corroborated Tucker's
hearing testimony.
Tucker sought medical treatment for her back on February 24,
1994. 	Dr. James Kintigh reported that Tucker related a history
of a back injury while moving a refrigerator on February 21,
1994. 	Dr. Kintigh diagnosed acute strain and noted that Tucker
injured her back while moving a refrigerator.
On May 12, 1994, Dr. I. Rinaldi noted a normal MRI and a
normal neurological examination. 	He also questioned claimant's
"prolonged symptomatology" and referred Tucker for work
hardening. 	Dr. Mark Ross concluded in his June 2, 1994 work
hardening report that Tucker "is capable of much more than she

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feels she is capable of." 	Dr. Ross noted that, during informal
testing, Tucker could lift and carry forty-five pounds. 	He
advised that Tucker "should be able to return to work after a
brief work hardening."
On September 2, 1994, Dr. W.F. Peach, Jr., a neurosurgeon,
examined Tucker and reported that she had dropped out of her
rehabilitation program. 	Dr. Peach noted a normal exam and opined
that "with normal scans, there is absolutely nothing that we
would consider doing." 	He released Tucker to return to work.
Dr. Thomas Stiles, an orthopedist, then referred Tucker to
the Medical College of Virginia Pain Management Clinic. 	Dr.
James B. Wade, a psychiatrist, diagnosed Tucker as suffering from
"Somatoform Pain Disorder Associated with Psychological Factors,
and Histrionic Personality Disorder, with Passive-Aggressive
Features." 	Finding a lack of physical pathology to explain
Tucker's pain symptoms and "a dramatic psychological overlay,"
Dr. Wade recommended conservative treatment and psychotherapy to
help "modify extremely negative pain-related beliefs."
In May 1994, employer offered Tucker a light-duty job that
would involve answering telephones and greeting people. 	She
refused to accept this position. 	On May 25, 1994, employer
terminated Tucker's employment.
I. 	Unjustified Refusal of Selective Employment
(Record No. 1933-95-1)
Factual findings made by the commission will be upheld on

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appeal if supported by credible evidence. 	James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
The commission found that employer's offer of part-time sedentary
employment fell within Tucker's work capacity. 	Dr. Rinaldi's
reports, claimant's normal physical examinations, and Dr. Ross's
June 2, 1994 work hardening report support the commission's
finding. 	Accordingly, we hold that the commission did not err in
finding that Tucker refused selective employment without
justification and in suspending claimant's compensation as of May
25, 1994.
II. 	Injury by Accident
(Record No. 1960-95-1)
"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, 238 Va. 578, 589, 385
S.E.2d 858, 865 (1989). 	The commission found that Tucker
sustained an injury by accident arising out of and in the course
of her employment on February 21, 1994. 	Tucker's testimony
described an identifiable incident that resulted in an obvious
onset of pain. 	In rendering its decision, the commission also
considered the various medical histories, and resolved any
conflicts in this evidence in favor of claimant. 	"In determining
whether credible evidence exists, the appellate court does not

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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). 	"The fact that there is contrary evidence in the
record is of no consequence if there is credible evidence to
support the commission's finding." 	Id.
Tucker's undisputed testimony, corroborated by the accident
report and medical records, provides ample credible evidence to
support the commission's finding. 	Thus, that finding is
conclusive on this appeal. 	James v. Capitol Steel Constr. Co., 8
Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
For these reasons, we affirm the commission's decision.
Record No. 1933-95-1 	Affirmed.
Record No. 1960-95-1 	Affirmed.