COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

PAULA TURCIOS 

 OPINION BY 

v. Record No. 2242-95-4 JUDGE ROSEMARIE ANNUNZIATA 

 APRIL 8, 1997 

HOLIDAY INN FAIR OAKS, ET AL. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Arturo Hernandez for appellant. 

 Douglas A. Seymour (Law Offices of E. Wayne 

Powell, on brief), for appellees. 

 Claimant, Paula Turcios, appeals the decision of the 

commission reversing the deputy commissioner's credibility 

findings and denying her application for temporary total 

disability benefits for an alleged injury by accident arising out 

of and in the course of her employment with employer, Holiday Inn 

Fair Oaks. Claimant contends that the commission's decision was 

arbitrary and must be reversed. We agree. 

 I. 

 All the evidence was taken before the deputy commissioner. 

Claimant testified that in the course of cleaning one of 

employer's rooms on December 9, 1992, she slipped on baby powder 

on the bathroom floor, which caused her to fall and land on her 

buttocks. Claimant attempted to continue working in the room, 

but upon bending to make the bed, she felt pain which precluded 

her from continuing. Claimant waited in the room. When her 

supervisor, Marguerita Gomez, passed by, claimant recounted her 
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slip and fall and the resulting pain she felt in her back, neck 

and legs. Gomez testified and confirmed claimant's recitation of 

the incident. 

 Gomez stated that she reported the incident to her manager, 

Cathy Kolodziej, who referred Gomez and claimant to Michelle 

Wertz, employer's personnel director. Claimant testified that 

she told Kolodziej she had fallen and that her pain began when 

she bent over to make the bed. Gomez testified that, acting as 

claimant's interpreter, she told both Kolodziej and Wertz 

claimant had slipped and fallen on the bathroom floor. Claimant 

had difficulty understanding what Gomez told Kolodziej and Wertz 

because she does not understand English well. Neither claimant 

nor Gomez saw Kolodziej or Wertz prepare a report describing the 

incident they had reported. 

 In November 1994, Donald Roberts replaced Wertz as 

employer's human resources director. Roberts testified that both 

Wertz and Kolodziej were no longer employed by employer. Roberts 

identified an internal report prepared on December 9, 1992 by 

Kolodziej as a form used by employer when an employee is injured. 

 Roberts also identified "Employer's First Report of Accident" 

prepared by Wertz also on the day of the incident. The internal 

accident report describes the incident as follows: "[Claimant] 

was making the bed in # 607, she went to tuck the corner in, when 

she was moving in a fast pace and strained her neck which caused 

her back to ache." Employer's First Report of Accident describes 
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the occurrence as follows: "[claimant] was making the bed in 607 

when she tucked in the corner, and pulled neck causing back 

pain." 

 On December 10, 1992, claimant sought medical treatment from 

an emergency clinic. Claimant testified that she did not 

describe the circumstances of her accident to the people at the 

clinic because of her poor command of English and because nobody 

at the clinic could translate for her. She testified that she 

described her pain and its onset in response to the questions 

asked. The clinic report from the December 10 visit states that 

claimant suffered a "work related injury on 12-09-92 while making 

bed at Holiday Inn - c/o low back pain - Pt. speaks very little 

English - Pt. states she was bending not lifting when injury 

occurred." The report of a radiology examination conducted the 

same day notes, "c/o back pain. Injured when making bed 

yesterday." Because of the poor copy quality of the clinic 

report in the record from the commission, the clinic's diagnosis 

of claimant's condition is not discernible. However, it is clear 

the physical findings in the clinic's report address the 

condition of the L-5 area of claimant's spine. Claimant next 

sought medical attention in October 1993 when she returned to the 

emergency clinic, apparently complaining of back pain. The 

record contains no medical reports from the October 1993 visit. 

 Claimant thereafter sought medical treatment in May 1994 

from Dr. Julio C. Gonzalez. Dr. Gonzalez's initial report of May 
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16, 1994 states, "[claimant] is being evaluated in regard to 

injuries sustained at work around December 9, 1992. The patient 

presents with severe pain in the lumbosacral areas that radiates 

to the right lower extremity." 

 Dr. Gonzalez diagnosed right sciatic neuralgia secondary to 

trauma, chronic back pain, and lumbosacral contusion. He opined 

that claimant may have denervation activity in the L-5 roots, the 

same spinal area noted in the medical report from the emergency 

clinic claimant initially consulted. Furthermore, an MRI 

revealed spondylolysis at L-5 and a grade II spondylolisthesis at 

L-5/S-1. Dr. Gonzalez's initial report also relates the history 

of claimant's condition as follows: 

 Around December 9, 1992, [claimant] was 

cleaning a bathroom and skidded on a slippery 

floor and fell to the floor in a sitting 

position. The patient was able to stand up 

on her own, and try to continue working, 

cleaning hotel rooms, and was trying to 

finish dressing the bed, she suddenly became 

stiff in the back and could not move. She 

went ahead and informed the incident to the 

supervisor, and, apparently, they did not 

take any account of the incident, as it was, 

and maybe they misunderstood that she fell in 

a sitting position before moving to the bed. 

 She was sent several days later "clinic", 

[sic] where she was examined and released. 

She was place [sic] off work for about seven 

days and then, when she returned to work, she 

tried to obtain light duty status, but she 

could not get it. She went on working with 

difficulties, and the pain continued. 

Several months later, she became acutely ill, 

for the same symptomatology, and went to the 

clinic again. The pain is described as 

shooting from the back to the right lower 

extremity, and it is worse at the end of the 

day, after making twelve to fifteen and 

sometimes eighteen rooms in the hotel. . . . 
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 Dr. Gonzalez examined claimant nine times between May 16 and 

July 21, the day he instructed her to remain out of work. In the 

reports from six of those visits, Dr. Gonzalez noted that 

claimant was under his care in regard to injuries sustained at 

work in December 1992. Dr. Gonzalez treated claimant for the 

same condition during each of these visits. 

 II. 

 There is no dispute that claimant injured her back on 

December 9, 1992, while working for employer. There is also no 

dispute that claimant was totally disabled as of July 21, 1994. 

The question before the commission was whether the evidence 

established that claimant suffered an "injury by accident" on 

December 9, 1992, and, if so, whether that injury was causally 

related to her total disability. 

A. INJURY BY ACCIDENT 

 Determination of whether an "injury by accident" occurred 

depends on whether claimant slipped and fell in the bathroom as 

she and Gomez described. There is no dispute that if claimant 

slipped and fell in the bathroom, she suffered an "injury by 

accident" within the meaning of the Act.1

 Conversely, there is 

 1 To establish an "injury by accident," a claimant must 

prove "an identifiable incident or sudden precipitating event 

[that results] in an obvious sudden mechanical or structural 

change in the body." E.g., Morris v. Morris, 238 Va. 578, 589, 

385 S.E.2d 858, 865 (1989). It is not necessary to show an 

immediate onset of the symptoms of an injury. Hercules, Inc. v. 

Gunther, 13 Va. App. 357, 364 n.2, 412 S.E.2d 185, 189 n.2 

(1991). 
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no dispute that in the absence of a slip and fall in the 

bathroom, no "injury by accident" occurred. 

 Claimant bore the burden of proving the slip and fall 

occurred. See, e.g., Hercules, Inc. v. Stump, 2 Va. App. 77, 79, 

341 S.E.2d 394, 395 (1986). There is no dispute that, standing 

alone, the substance of the ore tenus testimony describing the 

slip and fall is sufficient to carry the burden. The deputy 

commissioner found that testimony to be credible and awarded 

compensation. The full commission reversed, necessarily 

rejecting the deputy commissioner's credibility determination. 

 The commission is not constrained to accept the credibility 

findings of a deputy commissioner. However, the decision to 

reverse such findings cannot be rendered arbitrarily. The record 

must reflect a reasonable basis for the commission's different 

conclusion. Williams v. Auto Brokers, 6 Va. App. 570, 575, 370 

S.E.2d 321, 324 (1988).2 We find no reasonable basis in the 

record to support the commission's decision to reverse the 

deputy's credibility determination. We conclude, therefore, that 

the commission's decision was arbitrary and must be reversed. 

 

 2 Although we believe prudence would dictate otherwise, 

the law does not require the commission to articulate 

specifically its reasons for reaching a different credibility 

determination, unless it reverses a "specific, recorded 

observation regarding . . . behavior, demeanor or appearance." 

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

418 S.E.2d 904, 907 (1992). While the commission generally need 

not articulate its reasons for reversing a deputy's credibility 

findings, this principle does not provide authority for the 

commission to render its decisions arbitrarily. Rather, its 

decision must be supported by the record. See Williams, 6 Va. 

App. at 573-74, 370 S.E.2d at 323-24. 
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 The commission's decision to reverse the deputy's 

credibility determination was premised on the absence of a 

description of a slip and fall in the written reports of the 

incident, all of which the commission found "reflect a history of 

back pain while bending over to make a bed." The commission 

credited the substance of the written reports, and in so doing 

reversed the deputy's credibility finding with respect to the ore 

tenus testimony, on the basis of the written reports' 

contemporaneity to the incident. However, the commission's 

reliance on the fact that a description of the slip and fall did 

not appear in any of the "contemporaneous" reports inexplicably 

fails to consider the most contemporaneous report of all, that 

made by claimant to Gomez, claimant's supervisor. There is no 

dispute that the initial report, from claimant to Gomez, 

recounted a slip and fall in the bathroom. Under the 

commission's theory concerning the relative reliability of the 

reports, the report to Gomez, describing the slip and fall, is 

the most reliable report of all. The second most contemporaneous 

report of the incident was Gomez's report to Wertz and Kolodziej, 

which also described the slip and fall. 

 In addition, the record does not support a finding that the 

ore tenus testimony was inherently incredible. While the 

credibility of claimant's testimony could be questioned by her 

obvious interest in the outcome of the case, the same cannot be 

said of Gomez. Nothing in the record supports the conclusion 
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that Gomez was motivated by bias or interest to testify that a 

slip and fall occurred. Indeed, there is no evidence that Gomez 

shared any association with claimant except as an agent of 

employer. Furthermore, the ore tenus testimony was contrary to 

the written reports only in what the written reports did not 

contain. The information contained in the written reports, 

which, as the commission found, "all reflect a history of back 

pain while bending over to make a bed," was consistent with the 

ore tenus testimony describing claimant's onset of pain. 

Finally, the absence of a description of a slip and fall in the 

written reports was explained by the ore tenus testimony before 

the deputy commissioner. That testimony described the 

circumstances surrounding the preparation of the reports, and was 

unrefuted by any other evidence. Claimant's poor command of 

English limited her ability to give her account of the accident 

to the employer and to relate the full extent of her accident to 

the clinic personnel, none of whom could translate for her, as 

she attempted to describe her pain, not its causative source, to 

them. 

 In sum, we find no reasonable basis to support the 

commission's decision to reverse the deputy's credibility 

determination. Accordingly, we find the commission's decision to 

be arbitrary and reverse it. 

 B. CAUSATION 

 We must next determine whether claimant's total disability 
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as of July 21, 1994 is causally related to her December 9, 1992 

slip and fall. Both the deputy commissioner and the full 

commission considered the significance of the lapse of time 

between claimant's injury and her treatment by Dr. Gonzalez. The 

deputy commissioner found claimant's July 1994 disability 

causally related to the December injury in light of Dr. 

Gonzalez's uncontradicted medical opinion. However, because of 

the absence of a specific medical finding of causation, the 

commission found no causal connection. 

 We find that the commission erred in employing such a 

standard. It is well established that, while causation is an 

essential element of a compensable injury by accident, causation 

between an injury and a disability need not be established by the 

testimony of a medical expert. See Dollar General Store v. 

Cridlin, 22 Va. App. 171, 177, 468 S.E.2d 152, 154-55 (1996). 

 Here, Dr. Gonzalez's reports sufficiently establish a causal 

relationship between claimant's injury of December 1992 and her 

July 1994 disability. Although Dr. Gonzalez never used the 

words, "I find a causal connection," it is clear from a review of 

his records that he found a causal connection. At the beginning 

of his treatment, Dr. Gonzalez referred to the December 1992 

injury as the origin of claimant's condition. Dr. Gonzalez 

treated claimant for the same symptoms involving the L-5 area of 

her spine, which she expressed in December 1992, immediately 

after the injury occurred. Nowhere in the medical records is 
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there evidence to suggest an intervening cause. And, Dr. 

Gonzalez's history describes the ongoing and uninterrupted pain 

claimant experienced beginning in December 1992 and continuing 

through his treatment. 

 For the reasons stated, we reverse the decision of the 

commission and remand the case to the commission to enter an 

award consistent with the views expressed herein.3

Reversed and remanded.

 

 3

 In light of our conclusion, we decline to address the 

other issues claimant raises on appeal.