Gary R. Childress v. Gary Childress Trucking ( 1997 )


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  •                     COURT OF APPEALS OF VIRGINIA
    Present:    Judges Baker, Elder and Fitzpatrick
    GARY R. CHILDRESS
    v.          Record No. 2817-96-3          MEMORANDUM OPINION *
    PER CURIAM
    GARY CHILDRESS TRUCKING                      JUNE 10, 1997
    AND
    NATIONAL SURETY CORPORATION
    FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
    (John A. Martin; Browning, Lamie & Sharp, on
    brief), for appellant.
    (Monica L. Taylor; Melissa Amos Young;
    Gentry, Locke, Rakes & Moore, on brief), for
    appellees.
    Gary R. Childress (claimant) contends that the Workers'
    Compensation Commission (commission) erred in finding that he
    failed to prove he sustained an injury by accident arising out of
    his employment on August 18, 1995.    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 party prevailing below.     R.G. Moore Bldg. Corp. v.
    Mullins, 
    10 Va. App. 211
    , 212, 
    390 S.E.2d 788
    , 788 (1990).       In
    PYA/Monarch and Reliance Ins. Co. v. Harris, 
    22 Va. App. 215
    , 
    468 S.E.2d 688
     (1996), we held:
    In cases in which the claimant alleges an
    *
    Pursuant to Code § 17-116.010 this opinion is not
    designated for publication.
    injury by accident resulting from an
    employment-related risk, "[a] 'critical link'
    must exist between the conditions of the
    workplace and the injury in order for the
    injury to qualify as 'arising out of' the
    employment." In proving the "arising out of"
    prong of the compensability test, a claimant
    has the burden of showing that "'there is
    apparent to the rational mind upon
    consideration of all the circumstances, a
    causal connection between the conditions
    under which the work is required to be
    performed and the resulting injury.'"
    Id. at 221-22, 468 S.E.2d at 691. 1   "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.    Tomko v. Michael's
    Plastering Co., 
    210 Va. 697
    , 699, 
    173 S.E.2d 833
    , 835 (1970).
    In denying claimant's application, the commission relied
    upon PYA/Monarch and Department of Transp. v. Mosebrook, 13 Va.
    App. 536, 
    413 S.E.2d 350
     (1992), and found as follows:
    We find no credible evidence in this case
    that the claimant's work or work environment
    caused or contributed to the condition that
    precipitated the truck accident, nor has he
    shown that it resulted from a personal
    idiopathic problem that was manifest as he
    drove the vehicle. Claimant's argument on
    review that the heat of the day and his work
    on the vehicle only shortly before the
    accident "demonstrates by preponderance that
    1
    In an unexplained accident case, the claimant must also
    prove a causal connection between the employment and the
    accident. PYA/Monarch, 22 Va. App. at 224, 468 S.E.2d at 692.
    2
    the claimant suffered from a heat related
    blackout" is mere speculation unsupported by
    medical evidence. This raises only a
    possible link, but evidence that shows a mere
    possibility that the accident resulted from a
    work related condition "does not constitute
    'credible evidence' to support an award of
    compensation."
    The record supports the commission's findings.   No medical
    evidence established to a reasonable degree of medical certainty
    that an idiopathic condition or a risk or hazard of claimant's
    employment caused him to become dizzy or to lose consciousness,
    resulting in his losing control of his truck and striking a tree.
    Dr. Clinton Sutherland's discharge summary indicated that
    claimant suffered a "[n]ear syncope, unknown etiology, likely
    heat exhaustion."   Drs. Matthew Wood, Jr. and Jim C. Brasfield
    did not render any opinion with respect to the cause of
    claimant's dizziness and resulting accident.   Dr. Michael A.
    Passidomo noted his impression as "[s]yncope, etiology to be
    determined."
    In the absence of any persuasive medical evidence
    establishing the cause of claimant's dizziness and/or accident,
    the commission, in its role as fact finder, was entitled to give
    little probative weight to claimant's speculation that the heat
    and working on his truck shortly before the accident caused him
    to become dizzy and lose control of his truck.
    Based upon this record, we hold that claimant failed to
    prove as a matter of law that his injury arose out of his
    employment.
    3
    For the reasons stated, we affirm the commission's decision.
    Affirmed.
    4