COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Bumgardner 

GT CONSTRUCTION COMPANY, INC. 

 AND COMMERCIAL UNION INSURANCE 

 COMPANIES 

 MEMORANDUM OPINION*

v. Record No. 2857-97-2 PER CURIAM 

 MAY 5, 1998 

JERRY L. MORRIS 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Scott C. Ford; Joshua M. Wulf; Midkiff & 

Hiner, on brief), for appellants. 

 (Richard M. Thomas; Rider, Thomas, 

Cleaveland, Ferris & Eakin, on brief), for 

appellee. 

 GT Construction Company, Inc. and its insurer (hereinafter 

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

Commission ("commission") erred in finding that Jerry L. Morris 

("claimant") proved he sustained an injury by accident arising 

out of and in the course of his employment on October 8, 1996. 

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. See Rule 5A:27. 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. See R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

 Claimant, who worked for employer as a construction foreman, 

 

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

designated for publication. 
 2 

testified that on October 8, 1996, he and other workers had to 

remove gravel in order to grade a basement. Some of the workers 

used a wheelbarrow to carry the gravel. However, claimant 

carried the gravel in buckets. Claimant estimated that each 

bucket weighed fifty to seventy-five pounds and that he carried 

two buckets at a time. He performed this work from 7:00 a.m. 

until 3:30 p.m. At approximately 2:00 p.m., he felt a sudden 

pain in his neck, upper back, and left shoulder while carrying 

the buckets of gravel. Before 2:00 p.m., claimant had no pain in 

his neck, upper back, or left shoulder. Claimant continued 

working for the remaining one and one-half hours. He stated that 

he felt "a little pain but nothing that would make you feel like 

you needed to go to the hospital at the time." The next day 

claimant told James Thomasson, the company owner, that he hurt 

his shoulder and arm carrying the gravel the previous day. The 

Employer's First Report, which contained information related by 

claimant to Thomasson, reported that "carrying bucket of gravel 

the clmt strained back." 

 Claimant first sought medical care on October 17, 1996 from 

Dr. Lewis Castern. After conservative treatment failed to 

improve claimant's symptoms, Dr. Castern referred claimant to Dr. 

Howard Sherman, a neurologist. Dr. Sherman diagnosed claimant as 

suffering from a herniated disc at C6-7. Dr. Sherman referred 

claimant to Dr. Edgar N. Weaver, Jr., a neurosurgeon, who 

recommended that claimant undergo a posterior cervical laminotomy 
 3 

and foraminotomy at C5-6 and C6-7. 
 4 

 In rendering its decision, the commission found as follows: 

 Despite [the] inconsistencies [in 

claimant's testimony], the Deputy 

Commissioner found that the claimant was 

credible. The Deputy Commissioner observed 

the claimant and, we believe, was in a better 

position to judge credibility. We do not 

find these inconsistencies to be so 

substantial as to require reversal of the 

Deputy Commissioner's credibility 

determination. 

 As to the medical histories, we find 

them inconsistent and inconclusive to 

corroborate or impeach the claimant. Dr. 

Castern's October 17, 1996, report describes 

a single incident, ("carrying gravel in a 

bucket") and a cumulative injury ("carrying 

bucketfuls of gravel.") Dr. Sherman's 

November 20, 1996, report is ambiguous, 

saying the claimant was injured carrying some 

heavy gravel and Dr. Weaver's report 

describes a specific incident, "He was 

carrying heavy stones in a bucket." 

 "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). Claimant's testimony, which is 

consistent with the Employer's First Report, the history recorded 

by Weaver, and a portion of the history recorded by Dr. Castern, 

provides credible evidence to support the commission's finding 

that he proved an identifiable incident resulting in a sudden 

mechanical change in his body. Thus, that finding is conclusive 

on this appeal. See James v. Capitol Steel Constr. Co., 8 Va. 

App. 512, 515, 382 S.E.2d 487, 488 (1989). 
 5 

 In rendering its decision, the commission considered 

claimant's testimony, his statements to employer, his recorded 

statement, and the various medical histories, and resolved any 

inconsistencies in this evidence in favor of claimant. "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). "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.

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

 Affirmed.