COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

FOOD LION, INC. 

AND 

ALEXSIS RISK MANAGEMENT 

v. Record No. 1265-95-2 MEMORANDUM OPINION*

 PER CURIAM 

THOMAS E. STRETCHER NOVEMBER 14, 1995 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Cathie W. Howard; Williams & Pierce, on brief), 

for appellants. 

 (Zenobia J. Peoples, on brief), for appellee. 

 Food Lion, Inc. and its insurer (hereinafter collectively 

referred to as "employer") contend the Workers' Compensation 

Commission erred in finding that Thomas Stretcher ("claimant") 

proved that he sustained an injury by accident arising out of and 

in the course of his employment on July 1, 1994. Upon reviewing 

the record and the briefs of the parties, we conclude that this 

appeal is without merit. Accordingly, we summarily affirm the 

commission's decision. Rule 5A:27. 

 On appeal, we view 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). This 

Court will uphold the commission's factual findings if supported 

by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

App. 512, 515, 382 S.E.2d 788, 788 (1990). "In determining 

whether credible evidence exists, the appellate court does not 

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). 

 Claimant testified that, on July 1, 1994, in the course of 

his employment as an order selector at employer's distribution 

center, he injured his back. In describing the accident, 

claimant stated that he was "selecting" on aisle 16 when he went 

into aisle 16(2), slot 32, to retrieve two cases of soft drinks. 

 As he did this, he stepped on a pallet on the floor. The pallet 

broke, and he almost fell as he held the two cases of soft 

drinks. 

 Claimant stated that he tried to tell Alan Carmichael, lead 

shipping supervisor, that he hurt his back on aisle 16(2). 

Carmichael responded by telling claimant that there was nothing 

wrong with him. While claimant continued to pull orders, he 

complained several more times to Carmichael about his back. 

Claimant was out of work for five days following the incident. 

He called in each day and told Keith Johnson, the lead person on 

grocery shipping, that he had hurt his back at work. Carmichael 

and Johnson denied that claimant reported the accident to them 

when it happened or during the following five days. 

 Michael Mauger, a grocery shipping supervisor, testified 
 3 

that claimant did not report the July 1, 1994 injury to him until 

July 15, 1994. Mauger denied that claimant told him about 

falling through a pallet. He asserted that claimant told him 

only that he hurt his back pulling on aisle 16(0). Claimant was 

not sure whether he told Mauger of the pallet incident before 

July 15, 1994. 

 Christopher Brown, claimant's former coworker, testified 

that claimant told him on the night of June 30-July 1 that he had 

hurt his back in aisle 16(2) when he stepped on a pallet. 

Sterling Royal, another coworker, testified that claimant told 

him on the night of June 30-July 1, that he had hurt his back. 

On that same night, Royal also heard claimant tell Carmichael 

that he had hurt his back in aisle 16(2). 

 Robin Wood, a shipping clerk, recalled that claimant told 

her "he was hurt or hurting" on the night of the alleged 

accident. However, she thought he was joking and she told him to 

go back to work. 

 Claimant was examined at the John Randolph Hospital 

emergency room on July 20, 1994 for back and leg pain, with 

increasing leg, knee, and right groin pain after standing. The 

emergency room report contains an accident date of July 14, 1994, 

but does not reflect the pallet incident described by claimant. 

 On July 21, 1994, Dr. David Compton recorded a history of an 

accident consistent with claimant's testimony. An MRI revealed 

that claimant had sustained a herniated disc at the L5-S1 level. 
 4 

 On August 3, 1994, Dr. Michael Kyles, an orthopedist, 

examined claimant on a referral from Dr. Compton. He noted an 

episode of "torsional force" at work on June 30, 1994. 

 Based upon this record, the commission found that claimant 

met his burden of proving an injury by accident arising out of 

and in the course of his employment. In so ruling, the 

commission found as follows: 

 After careful Review of the entire 

record, we agree with what is essentially a 

credibility finding by the Deputy 

Commissioner. The record supports the Deputy 

Commissioner's decision. The testimony 

established that pallets were in aisle 16 

(2), and that the claimant reported his back 

was hurting to several people. Robin Wood's 

testimony supported the claimant [sic] 

assertion that his complaints were not taken 

seriously the night of June 30-July 1. 

Moreover, while the emergency room report 

contains no history of injury, Dr. Compton 

and Dr. Kyles subsequently reported a history 

corroborative of the claimant's testimony. 

The medical evidence taken as a whole 

supports the finding that claimant sustained 

a herniated disc as a result of the incident 

involving the pallet. 

 The full commission, after reviewing the witnesses' 

testimony and the medical evidence, found, as did the deputy 

commissioner, that its decision hinged on a credibility 

determination. As fact finder, the commission resolved any 

inconsistencies between claimant's testimony and that of his 

supervisors in favor of claimant. Claimant's testimony, which 

was corroborated by coworkers Brown and Royal, and the medical 

records, which reflect a history of back pain following the 
 5 

pallet incident, provide ample credible evidence to support the 

commission's finding. Thus, we are bound by it's finding on 

appeal. 

 

 For these reasons, we affirm the commission's decision. 

 Affirmed.