COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Elder 

Argued at Richmond, Virginia 

PENCE NISSAN OLDSMOBILE, ET AL. 

 OPINION BY 

v. Record No. 1416-94-2 JUDGE LARRY G. ELDER 

 MAY 9, 1995 

DARELL DONNEL OLIVER, SR. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Rodney A. Satterwhite (McGuire, Woods, Battle 

 & Boothe, on briefs), for appellants. 

 Louis D. Snesil (McDonald & Snesil, P.C., on brief), 

 for appellee. 

 Pence Nissan Oldsmobile and Merchants of Virginia Group Self 

Insurance Association (appellant) appeal the Workers' 

Compensation Commission's award of benefits to Darell Donnel 

Oliver, Sr. (claimant) based on his November 13, 1992, workrelated injury by accident. Appellant contends (1) the 

commission erred in holding that the deputy commissioner 

improperly relied on claimant's medical history records, and (2) 

credible evidence does not support the commission's finding that 

claimant suffered a back injury by accident. Because the 

commission is not bound by statutory and common law rules of 

evidence, we remand for reconsideration pursuant to the 

commission's Rule 2.2 regarding consideration of evidence. 

 I. 

 FACTS 

 Claimant was an automobile service technician who worked for 

Pence Nissan Oldsmobile. Claimant testified that on November 13, 
 2 

1992, while lifting a one-hundred pound engine block, he felt a 

stiffness or pull in his back, unaccompanied by pain. Claimant 

continued his work-shift until 5:00 p.m. that day and then went 

home. The next morning, claimant noticed pain that had started 

to develop in his back. 

 Claimant sought medical treatment on November 17, 1992, from 

Dr. Vaclav Vokac, who diagnosed a lumbosacral strain. Based on 

claimant's statements to him, Dr. Vokac attributed the injury to 

a May 6, 1991, car accident that was merely aggravated by the 

lifting of heavy objects. Dr. Vokac's initial report of 

claimant's injury does not mention the November 13, 1992, 

incident as a cause of claimant's injury. 

 A physician's report by Dr. Vincent Dalton on October 26, 

1993, indicates that claimant "injured his back while lifting 

heavy engine blocks in the shop." Dr. Dalton, who diagnosed 

degenerative joint disease accompanied by muscle spasms, stated 

that he could not necessarily correlate any pre-existing 

degenerative disc disease with the injury sustained on November 

13, 1992. Dr. Dalton's records indicate that claimant reinjured 

his back on November 24, 1992, a fact not developed at the deputy 

commissioner's hearing. 

 Another physician's report is dated September 24, 1993, and 

was prepared by Dr. Blake Dennis, who treated claimant between 

December 11, 1992 and May 20, 1993. Dr. Dennis reached the same 

conclusion as Dr. Dalton, stating that "[claimant] injured back 
 3 

lifting heavy engine blocks in the shop." 

 Finally, in his statement to an insurance representative, 

claimant mentioned that he had back problems originating with onthe-job bending and squatting. Claimant also stated that when he 

installed a transmission during the week preceding November 13, 

1992, he experienced pain in his back and testified to this fact 

at the deputy commissioner's hearing. 

 Claimant filed a claim for workers' compensation benefits on 

October 7, 1993. The deputy commissioner heard evidence and 

filed an opinion on January 20, 1994, in which he ruled that, in 

light of claimant's inconsistent reports of his accident to 

doctors, he failed to prove an injury by accident. The 

commission reversed the deputy commissioner's ruling and awarded 

claimant benefits beginning November 17, 1992. The commission 

further stated that it could not rely on history relayed by a 

claimant to determine how an accident occurred. 

 II. 

CONSIDERATION OF MEDICAL HISTORIES 

 As the Supreme Court of Virginia has stated, "injuries 

resulting from repetitive trauma . . . as well as injuries 

sustained at an unknown time, are not 'injuries by accident' 

within the meaning of Code § 65.1-7." Morris v. Morris, 238 Va. 

578, 589, 385 S.E.2d 858, 865 (1989)(emphasis added). In this 

case, the commission was confronted with conflicting accounts of 

when claimant's injury was sustained, and it was up to the 
 4 

commission to decide in which capacity these accounts could be 

used in awarding or denying claimant compensation. Unlike the 

practice in civil cases, Rule 2.2 of the Rules of the Workers' 

Compensation Commission provides, in part: 

 Except for rules which the Commission 

promulgates, it is not bound by statutory or 

common law rules of pleading or evidence nor 

by technical rules of practice. 

 The Commission will take evidence at 

hearing and make inquiry into the questions 

at issue to determine the substantial rights 

of the parties, and to this end hearsay 

evidence may be received. 

See, e.g., Piedmont Manuf. Co. v. East, 17 Va. App. 499, 512-13, 

438 S.E.2d 769, 777 (1993)(recognizing that commission is not 

bound by statutory or common law rules of evidence); Cox v. 

Oakwood Mining, Inc., 16 Va. App. 965, 969, 434 S.E.2d 904, 907 

(1993)(recognizing that commission's rules permit hearsay 

evidence); Baker v. Babcock & Wilcox Co., 11 Va. App. 419, 426, 

399 S.E.2d 630, 634 (1990)(stating that hearsay evidence is 

admissible before the commission); Franklin Mtg. Corp. v. Walker, 

5 Va. App. 95, 99, 360 S.E.2d 861, 864 (1987)(recognizing the 

permissible use of hearsay without corroboration), aff'd en banc, 

6 Va. App. 108, 367 S.E.2d 191 (1988). This Court defers to the 

commission's interpretation of its rules and will affirm the 

commission's findings when supported by credible evidence. See, 

e.g., James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 

382 S.E.2d 487, 488 (1989). 
 5 

 Because the commission may choose to consider the common law 

rules of evidence when the underlying rationale for the rule is 

helpful in reaching a decision, we have mentioned and discussed 

the common law rules of evidence in our past opinions. For 

example, in Board of Supervisors of Henrico County v. Martin, 3 

Va. App. 139, 348 S.E.2d 540 (1986), the claimant's hearing 

testimony proved that his accident was not compensable. The 

commission nonetheless decided otherwise and relied on the 

claimant's medical histories given to his physician as proof of 

how the accident occurred. We held that the commission's 

findings violated Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 

652, 656 (1922), which stated that a party is bound by his or her 

unequivocal testimony at trial. Any other language in Martin

regarding the common law rules of evidence was dicta. 

 In Kane Plumbing, Inc. v. Small, 7 Va. App. 132, 371 S.E.2d 

828 (1988), we held that the commission's statement that it would 

not rely on claimant's medical histories to determine how an 

accident occurred did not imply that the commission failed to 

consider the histories for other purposes, such as impeaching 

claimant or explaining the basis of the doctor's opinion. In his 

concurring opinion in Small, Judge Moon elucidated the common law 

differences between a prior inconsistent statement and a party 

admission. See id. at 139, 371 S.E.2d at 833. 

 We recently re-visited the issue of the proper use of 

medical histories in McMurphy Coal Co. v. Miller, __ Va. App. __, 
 6 

__, __ S.E.2d __, __ (1995). In response to the commission's use 

of the dicta in Martin, we wrote that under common law rules of 

evidence, medical histories are admissible substantively as party 

admissions.1 Id. In any event, Miller must not be read to hold 

that the commission must follow common law rules of evidence. 

 After reviewing the evidence in this case, the deputy 

commissioner ruled that, in light of claimant's inconsistent 

reports of his accident to doctors and the insurance agent, he 

failed to prove an injury by accident. The commission reversed 

the deputy commissioner's ruling and awarded claimant benefits 

beginning November 17, 1992. The commission further stated that, 

based on Martin, it could not rely on history taken from a 

claimant to determine how an accident occurred. The commission's 

broad statement is contrary to the common law principles 

enunciated in Martin, Small, and Miller, but more importantly, is 

contrary to Rule 2.2 which gives the commission "[t]he discretion 

to give probative weight to hearsay statements in arriving at its 

finding of facts." Williams v. Fuqua, 199 Va. 709, 714, 101 

S.E.2d 562, 566 (1958). 

 We therefore remand this case to the commission for 

consideration consistent with this opinion. 

Reversed and remanded.

 

 1

 See Charles E. Friend, The Law of Evidence in Virginia 

§ 18-34 (4th ed. 1993)("Party admissions are admitted to prove 

the truth of the matter asserted, and may be considered by the 

trier of fact for that purpose")(emphasis added)(footnote 

omitted).