Thomas Jeffrey Determan v. Willard C. Thompson, et ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
THOMAS JEFFREY DETERMAN
MEMORANDUM OPINION *
v. Record No. 0438-98-4 PER CURIAM
AUGUST 25, 1998
WILLARD CHRISTOPHER THOMPSON/ALL STAR MOVERS
AND HARLEYSVILLE MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James F. Green; Ashcraft & Gerel, on brief),
for appellant.
(Elizabeth A. Zwibel; Siciliano, Ellis,
Dyer & Boccarosse, on brief), for appellees.
Thomas J. Determan ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in finding that (1)
he failed to prove that he sustained an injury by accident
arising out of his employment on November 23, 1996; and (2)
Willard Christopher Thompson ("employer") was not estopped from
denying compensability of the claim under the holding in National
Linen Serv. v. McGuinn, 5 Va. App. 265, 362 S.E.2d 187 (1987).
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.
I. Injury by Accident/Arising Out Of
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). "To
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
prove the 'arising out of' element, [in a case involving injuries
sustained from falling at work, claimant] must show that a
condition of the workplace either caused or contributed to [his]
fall." Southside Virginia Training Ctr. v. Shell, 20 Va. App.
199, 202, 455 S.E.2d 761, 763 (1995) (citing County of
Chesterfield v. Johnson, 237 Va. 180, 184, 376 S.E.2d 73, 76
(1989)). "Whether an injury arises out of the employment is a
mixed question of law and fact and is reviewable by the appellate
court." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482,
483, 382 S.E.2d 305, 305 (1989). However, unless we conclude
that claimant proved, as a matter of law, that his employment
caused his injury, the commission's finding is binding and
conclusive on appeal. See Tomko v. Michael's Plastering Co., 210
Va. 697, 699, 173 S.E.2d 833, 835 (1970).
At the May 16, 1997 hearing, claimant testified that on
November 23, 1996, he was repairing a truck for employer. As he
stepped from the truck top to a pallet that had been raised up on
a forklift, the pallet slipped. The next thing he remembered was
when he awoke while lying on the floor. None of claimant's
co-workers witnessed the incident. In claimant's March 6, 1997
deposition, he was repeatedly asked to recite the events leading
up to his fall. He testified that he remembered kneeling on top
of the truck while repairing the holes, but could not remember
anything else until he was placed on an ambulance stretcher.
Claimant asserted at the hearing that he remembered the complete
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details of the accident after he gave his deposition testimony.
The medical records consistently reported that claimant could not
remember the fall or the events immediately before it occurred.
No medical evidence showed that claimant's memory slowly improved
following the fall.
Claimant's co-worker, William B. Logan, who found claimant
on the floor after the fall, testified that claimant told him
that he did not know what happened, but that he thought he fell.
Claimant also told Logan at the hospital that he could not
remember anything regarding the fall.
In denying claimant's application, the commission rejected
claimant's hearing testimony, finding that claimant was not
credible. In so ruling, the commission found as follows:
Given this late change in the claimant's
recollection, unsupported by any concomitant
cognitive change reported in the medical
record, we do not find his testimony credible
regarding the circumstances leading to his
fall. It is noted that the Deputy
Commissioner did not find his testimony to be
credible. On Review, the claimant asserts
that his recorded statement given to the
carrier on December 12, 1996, is consistent
with his Hearing testimony. However, in that
interview, he stated only that, "I
think . . . I was trying to step, . . . "
onto the pallet, and "I guess the pallet
moved . . ." (Statement at 2). It is clear
from the context and wording of the statement
that the claimant was speculating on the
cause of his fall, rather than stating a
cause. He later indicated in his deposition
testimony that he was unsure of the cause of
his fall.
It is well settled that the determination of a witness'
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credibility is within the fact finder's exclusive purview. See
Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363
S.E.2d 433, 437 (1987). In light of the inconsistencies in the
record, the commission had ample reason to disbelieve claimant's
hearing testimony. Absent claimant's hearing testimony, his fall
was unexplained. Because claimant failed to present credible
evidence to prove that his employment exposed him to a particular
danger from which he was injured, we cannot find as a matter of
law that claimant's evidence sustained his burden of proof.
II. Estoppel
In denying claimant's assertion that employer be estopped
from denying compensability of the claim, the commission found as
follows:
The fact situation presented here does
not lead us to conclude that the employer
asserted defenses in an effort to avoid
shifting of the burden of proof under
McGuinn. The record establishes that the
defenses raised were viable, given the state
of the evidence. We further note that the
employer promptly notified both the
Commission and the claimant that it was no
longer accepting compensability of the claim.
The employer denied the claim within three
months of the accident and within one month
of the filing of the Claim for Benefits.
Also, the fact that the employer paid wages
in this case does not evidence an intent to
accept the claim. The record reflects that,
prior to the accident, the employer paid full
wages to the claimant during an extended
period of absence, even though the claimed
disability was obviously not work-related.
There is no evidence that the impetus for
paying full wages after the alleged work
injury was for any reason other than
friendship, which prompted the previous
payments.
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No Memorandum of Agreement or Agreed
Statement of Fact had been submitted by
either party, and no award had been entered
by the Commission before the employer
indicated that it was denying the
compensability of the claim.
The commission's findings are amply supported by the record.
Nothing in the record indicates that employer denied the claim in
an effort to circumvent the holding in McGuinn and shift the
burden of proof. Based upon this record, the commission did not
err in holding that employer was not estopped from denying
compensability of the claim.
For these reasons, we affirm the commission's decision.
Affirmed.
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