COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Senior Judge Hodges 

Argued at Norfolk, Virginia 

KENNETH W. ZERBE 

 MEMORANDUM OPINION* v. Record No. 1081-94-1 BY JUDGE JOSEPH E. BAKER 

 MAY 30, 1995 

KENKEV COMPANY and 

 EMPLOYERS INSURANCE OF WAUSAU 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Jill Roseland (Carlton F. Bennett; Bennett 

 and Zydron, P.C., on brief), for appellant. 

 Fay F. Spence (Gaidies, Young & Spence, on 

 brief), for appellees. 

 Kenneth W. Zerbe (claimant) contends that the Workers' 

Compensation Commission (commission) erred in disregarding the 

deputy commissioner's credibility determination and in finding 

that claimant failed to prove that his herniated disc was caused 

by an identifiable incident which precipitated a sudden 

mechanical change in his body. Finding no error, we affirm the 

commission's decision. 

 At the evidentiary hearing, claimant testified that at 10:00 

a.m. on April 12, 1993, while he was in the process of digging 

thirty-two post holes, he experienced a sharp pain in his lower 

back as he plunged the post-hole digger into the thirteenth or 

fourteenth hole. However, in a recorded statement given by 

claimant to employer's insurance carrier shortly after the 

 

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

designated for publication. 
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incident, claimant did not provide any description of a specific 

identifiable incident. Rather, he stated that he experienced low 

back pain while digging post holes on April 12, 1993, and 

performing additional work on April 13 and 14, 1993. Contrary to 

claimant's assertion at the hearing, there is nothing in the 

recorded statement to indicate that claimant was impaired by 

medication, that he did not understand the questions, or that he 

was unable to give coherent answers. Moreover, the insurance 

adjuster testified that claimant did not sound impaired when he 

gave the recorded statement. 

 The deputy commissioner's finding that claimant proved a 

compensable injury by accident was based upon the substance of 

claimant's hearing testimony and the contents of the medical 

records, rather than upon claimant's demeanor or appearance. 

Accordingly, the credibility issue was as determinable by the 

full commission as it was by the deputy. Goodyear Tire & Rubber 

Co. v. Pierce, 5 Va. App. 374, 383, 363 S.E.2d 433, 438 (1987); 

see also Kroger Co. v. Morris, 14 Va. App. 233, 236, 415 S.E.2d 

879, 880-81 (1992). 

 On appellate review, we construe the evidence in the light 

most favorable to the party prevailing before the commission. 

R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 

S.E.2d 788, 788 (1990). "In order to carry his burden of proving 

an 'injury by accident,' a claimant must prove that the cause of 

his injury was an identifiable incident or sudden precipitating 
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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). "Factual findings of the 

commission are binding on appeal. Code § 65.1-98 [now Code 

§ 65.2-706]. [Only] if no credible evidence exists in support of 

a factual finding, [will] the issue of sufficiency of the 

evidence [be] one of law for this Court to decide." Spruill v. 

C.W. Wright Const. Co., 8 Va. App. 330, 333, 381 S.E.2d 359, 360 

(1989). Unless we can say as a matter of law that claimant's 

evidence sustained his burden of proof, the commission's finding 

is binding and conclusive upon us. Tomko v. Michael's Plastering 

Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). 

 Claimant received medical treatment for his back pain from 

Patient First and Dr. Colin Hamilton, an orthopedic surgeon. 

Their medical records do not reflect that claimant mentioned a 

specific identifiable incident. Rather, the records merely refer 

to claimant's symptoms commencing after digging post holes. 

 The commission was entitled to determine credibility and to 

give little weight to claimant's hearing testimony, which was 

inconsistent with his recorded statement and the medical records. 

 Based upon claimant's recorded statement and the medical 

records, we cannot say as a matter of law that his evidence 

sustained his burden of proving a specific identifiable incident 

as required under the Workers' Compensation Act. Thus, the 

commission did not err in denying him compensation. 
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 For these reasons, we affirm the commission's decision. 

 Affirmed. 
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BENTON, J., dissenting. 

 At the evidentiary hearing Zerbe appeared pro se and 

testified in response to the deputy commissioner's questioning as 

follows: 

 Q: And can you tell us if anything unusual 

happened that day? 

 A: Yes, ma'am. I was digging some post 

holes and about the thirteenth or fourteenth 

hole, while I was thrusting the post hole 

diggers into the ground, I experienced a 

sharp pain in my lower back. At that time I 

thought it was a pinched nerve. I took a 

small break and walked over and took a few 

sips of my drink, stretched a little bit, and 

tried to stretch it out. 

 Q: About what time was this, sir? 

 A: This was, to the best of my recollection, 

around 10 o'clock in the morning. 

 Q: All right. 

 A: Realizing that I was the only one there, 

and had to get these things done, I tried to 

continue on. 

 The employer's attorney sought to impeach Zerbe by 

questioning him concerning the statements Zerbe had made to the 

employer's insurance agent on the telephone. In response to her 

questioning, Zerbe continued his testimony as follows: 

 Q: Mr. Zerbe, how many holes did you do 

during the day on April 12th? 

 A: Thirty-two. 

* * * * * * * 

 Q: And do you recall speaking with [the 

insurance agent] on May the 20th about your 

case? 
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 A: Yes, I do. 

 Q: And do you remember him asking you if 

there was any particular hole that the pain 

started on? 

 A: Yes, ma'am, I do. 

 Q: And isn't it true that you told him that 

there was no particular hole, that it was 

from digging all the holes? 

 A: No, ma'am. I told him I couldn't 

possibly remember exactly which hole it was. 

 Q: Didn't you tell him that it was a gradual 

thing that developed as you dug all the holes 

and you could feel it as you would go into 

the post holes? 

 A: I don't know if that's exactly what I 

told him. At that point in time you have to 

understand I was -- had no idea that this 

claim could possibly be turned down from it 

not being a particular accident. I thought 

he was investigating me to find out whether 

or not I actually was hurt on the job. Okay. 

 I didn't know I had to specify exactly which 

hole. I didn't know that I had to do all of 

that. So, I told him that halfway through I 

was in pain. I had experienced pain and had 

to keep digging these holes and it got worse 

as I went. 

 Indeed, the transcript of the telephone interview reflects 

that during the course of the telephone interview, in which the 

agent made inquiries suggesting that the pain occurred at an 

imprecise time, Zerbe stated: 

 Ah, I can't really pinpoint a certain hole, 

you know, I felt it when I was jamming the 

post hole diggers down into the hole, I could 

feel it, but I can't tell you ah, any one 

certain hole that I really felt it on. 

Thus, in both his recorded statement to the insurance agent and 
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his testimony at the evidentiary hearing, Zerbe testified that 

when he was "about halfway through" he injured his back while 

pushing the post hole digger "into the hole." 

 After he was informed that he had to more precisely identify 

the hole, Zerbe testified at the evidentiary hearing that it was 

the "thirteenth or fourteenth hole." Zerbe explained during his 

testimony at the evidentiary hearing that he sought to more 

precisely identify the particular hole when he was told after his 

recorded statement that he had to specify a particular hole. He 

also testified that he believed the insurance agent was concerned 

about "whether or not [he] actually was hurt" and not whether he 

could precisely identify the precise hole. 

 The commission's findings that Zerbe's recorded statement 

"contains no description of an accident" is not supported by 

credible evidence. Zerbe's statement that he was injured "when 

. . . [he] was jamming the post hole diggers down into the hole" 

is precisely an event that proves an "identifiable incident." 

See Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 

(1989). 

 Furthermore, the deputy commissioner was the fact finder who 

was able to observe Zerbe's demeanor when Zerbe testified and 

explained the basis of his response during the telephone 

interview. The commission's finding that it found from the 

recorded statement no indication that Zerbe was injured as a 

result of "any particular activity at any particular time" is 
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both plainly wrong and made in contravention of Goodyear Tire and 

Rubber Co. v. Pierce, 5 Va. App. 374, 363 S.E.2d 433 (1987). 

Without any adequate basis, the commission has disregarded the 

deputy commissioner's assessment of Zerbe's testimony and 

explanation for his inability to specify the particular hole in 

the recorded statement. Moreover, Zerbe's recorded statement and 

his testimony are both consistent in the assertion that Zerbe was 

injured when he jammed the digger into one of the holes. His 

diligence in completing the work while in pain does not convert 

his injury by accident to an injury caused by repetitive trauma. 

 For these reasons, I would reverse the commission's denial 

of an award to Zerbe.