Middle Creek Energy, Inc. v. Randall Baldwin

• Court: Court of Appeals of Virginia
• Decided: May 7, 1996
• Docket: 0821953
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Annunziata Argued at Salem, Virginia

MIDDLE CREEK ENERGY, INC., ET AL. MEMORANDUM OPINION * BY v. Record No. 0821-95-3 JUDGE LARRY G. ELDER MAY 7, 1996 RANDALL BALDWIN

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Jim H. Guynn, Jr. (Barbara J. Taylor; Parvin, Wilson, Barnett & Guynn, P.C., on briefs), for appellants. D. Edward Wise, Jr. (Arrington, Schelin & Herrell, P.C., on brief), for appellee.

Middle Creek Energy, Inc. and Travelers Insurance Company

(collectively "employer") appeal the Workers' Compensation

Commission's (commission) decision awarding temporary total

benefits to Randall Baldwin (claimant). Employer asserts that

the commission erred in finding that claimant established an

injury by accident arising out of and in the course of his

employment, after claimant gave differing versions of events

surrounding his injury. We affirm the commission's decision.

Claimant, a miner operator, testified at the deputy

commissioner's hearing that he dislocated his shoulder while

working at employer's mine on April 13, 1994. Claimant testified

that he was walking under a conveyor belt structure when he:

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. [s]lipped and I reached for the belt rope-- grabbed for the belt rope, and I was already falling at the time. And then I felt a pain in my [left] shoulder so I let go of the belt rope and then I just stretched out there in the mud.

On April 28, 1994, in a conversation with an insurance agent

from Ballard Insurance Agency, Inc., claimant stated that he:

[b]ent over with his dinner bucket in his hand to go under the belt line . . . when his foot slipped due to the mud. He reached up and grabbed a steel rope used to hold up the belt line and his hand slipped off causing him to fall down.

In another conversation with the insurance company's

representative, on August 1, 1994, claimant stated that he "was

going under the belt, just the position I was in or something--it

just threw my arm out of joint." Claimant stated that the

accident transpired so quickly that he could not say whether he

hit the rope.

Dr. G. V. Reddy treated claimant on April 13, 1994, and

recorded the following accident description: "[Claimant] was

going under a belt and the area was muddy. His shoulder went out

of place and he developed a lot of pain in the left shoulder."

On July 12, 1994, Dr. Reddy wrote that claimant "was duck-walking

on all of his four extremities when the shoulder went out of

place." Finally, the employer's first report of accident states

that the injury occurred when claimant "was crossing under belt

line. Belt was not running. [Claimant] bent over and pulled

shoulder out of place."

-2- On October 27, 1994, the deputy commissioner denied

claimant's claim, noting that even though claimant injured

himself on April 13, 1994, there were six different versions of

how the injury occurred. On March 16, 1995, the commission

acknowledged that there existed different recitations of injury,

but found that the evidence taken as a whole established that

claimant suffered an injury by accident as alleged, namely that

"claimant injured his left shoulder when he slipped in mud while

crossing under a conveyor belt structure." The commission

awarded temporary total disability benefits from April 13, 1994

to June 27, 1994, along with medical expenses. Employer appeals

to this Court. 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). "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." Wagner Enters., Inc. v. Brooks, 12 Va.

App. 890, 894, 407 S.E.2d 32, 35 (1991). "Under our standard of

review . . . factual findings are conclusive and binding on this

Court. Furthermore, the probative weight the commission gave to

the conflicting testimony is similarly within its province and

not subject to our review." Birdsong Peanut Co. v. Cowling, 8

Va. App. 274, 279, 381 S.E.2d 24, 27-28 (1989).

There must exist "a causal connection between the claimant's

-3- injury and the conditions under which the employer requires the

work to be performed." Grove v. Allied Signal, Inc., 15 Va. App.

17, 19, 421 S.E.2d 32, 34 (1992). Furthermore, in order to show

that he suffered an injury by accident, a claimant must prove "an

identifiable incident that occurs at some reasonably definite

time, which is the cause of an obvious sudden mechanical or

structural change in the body." Ratliff v. Rocco Farm Foods, 16

Va. App. 234, 238, 429 S.E.2d 39, 42 (1993). In light of these principles, we hold that the commission

did not err in finding that claimant met his burden of proof.

Despite employer's criticism of the factual inconsistencies in

claimant's accounts of the accident, the record reveals that the

commission weighed the evidence and the credibility of the

witnesses and accompanying documentation and resolved any

conflicts in claimant's favor. While claimant omitted certain

details of his accident when describing his accident to various

sources, this does not indicate that claimant presented

conflicting accounts and does not preclude a recovery of

benefits.

Claimant informed the insurance company's representative

that his accident "just happened so fast," that he could not say

precisely what transpired. Claimant was able, however, to give a

somewhat detailed account of his version of the accident to the

deputy commissioner. This account indicated that claimant was

walking under a conveyor belt structure, slipped, grabbed a belt

-4- rope for support, released the belt rope due to his left shoulder

pain, and collapsed in the mud. All of these events occurred

within seconds of each other. Claimant's statement to the

insurance company's agent corroborated this version of events.

Though there exist arguable inconsistencies in appellant's

versions of events contained in other documents, the commission

could have believed the credible version given to the deputy

commissioner and to the insurance company's agent. See Seven-Up Bottling Co. v. Moseley, 230 Va. 245, 249, 335 S.E.2d 272, 274

(1985).

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

Affirmed.

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