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. 
 2 

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 
 3 

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 
 4 

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 
 5 

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.