Thaddeus R. Foddrell v. J & J Southeast

• Court: Court of Appeals of Virginia
• Decided: September 29, 1998
• Docket: 1988972
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Bumgardner Argued at Richmond, Virginia

THADDEUS R. FODDRELL MEMORANDUM OPINION * BY v. Record No. 1988-97-2 JUDGE SAM W. COLEMAN III SEPTEMBER 29, 1998 J & J SOUTHEAST AND GEORGIA PACIFIC CORPORATION

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Peter McIntosh (Michie, Hamlett, Lowry, Rasmussen & Tweel, P.C., on brief), for appellant.

Cecil H. Creasey, Jr. (Sands, Anderson, Marks & Miller, on brief), for appellees.

In this appeal from the Workers' Compensation Commission,

Thaddeus R. Foddrell contends the commission erred in finding

that he failed to prove he sustained an injury by accident

arising out of and in the course of his employment. Upon review,

we find no error and affirm the commission's decision.

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

to the party prevailing before the commission, the employer in

this case. See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App.

211, 212, 390 S.E.2d 788, 788 (1990). The claimant has the

burden of proving that his or her disability is causally related

to a workplace injury by accident. See Morris v. Morris, 238 Va.

578, 589, 385 S.E.2d 858, 865 (1989); AMP, Inc. v. Ruebush, 10

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Va. App. 270, 274, 391 S.E.2d 879, 881 (1989). Unless we can say

as a matter of law that claimant sustained his burden of proving

an injury by accident, the commission's decision is binding and

conclusive upon us. See Tomko v. Michael's Plastering Co., 210

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

Claimant testified that he injured his left knee when he

slipped and fell on the employer's parking lot while looking for

Mike Branch, a loader shifter who brings empty tractor trailers

to claimant's work station. Branch testified, however, that he

saw claimant slip and grab his right knee when he and claimant were walking through the parking lot to their cars after Branch

had clocked out from work. The employer introduced time sheets

showing that claimant clocked out from work shortly before Branch

clocked out. According to Tammy Wood, employer's claims

supervisor, claimant told her in a telephone interview that he

injured his left knee while walking out in the parking lot to

start his car during the cold weather. Wood testified that

twenty minutes later claimant called her again and stated that he

slipped and fell while looking for trailers in the parking lot

and that "he didn't want [her] to get the impression that he had

just walked off his job . . . to go out and start his car."

Claimant expressly denied that he injured himself while departing

from work on the morning in question.

Citing the inconsistencies in claimant's testimony and the

testimony of employer's witnesses, the deputy commissioner found,

- 2 - and the full commission agreed, that the claimant's evidence was

not credible. The commission added:The claimant had the legal

burden to prove that he sustained an injury by accident. While

much of the evidence supports that the claimant slipped and fell

at work, none of the other evidence supports the claimant's

testimony that he was injured while trying to find Branch. The

claimant can rise no higher than his own testimony. Massie v.

Firmstone, 134 Va. 450, 114 S.E. 652 (1922).

The commission held that claimant failed to prove that he

suffered a compensable injury by accident.

It is well settled that credibility determinations are

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). Based upon the inconsistencies in the evidence, the

commission was entitled to conclude that claimant's testimony was

not credible, and we are bound by that finding on appeal.

However, the claimant contends that although the commission found

him not to be a credible witness, all the other witnesses

testified to various versions of his having fallen in the parking

lot and having injured his knee. He asserts that all of these

versions, while varying in some particulars, prove that he

received a compensable injury. Thus, according to the claimant,

because all factual versions prove that he received a compensable

injury, the evidence proves his claim as a matter of law.

Because claimant presented evidence of inconsistent accounts

- 3 - of an accident and how he was injured, the commission was not

required to believe any of the versions of whether an accident

occurred that caused the claimant's injury. Moreover, we cannot

find that claimant has proven as a matter of law that he suffered

an injury by accident. See Virginia Dep't of Transp., 13 Va.

App. 536, 538, 413 S.E.2d 350, 351-52 (1992).

The inconsistencies in the various accounts of an accident

raised doubts with the fact finder whether an accident occurred

or whether the claimant's injury resulted from a fall in the

employer's parking lot. The commission noted that Donald Ashby

denied that claimant had told him of having been injured in a

fall immediately after it occurred. Ashby stated that claimant

told him about an accident several days later before going on

medical leave, at which time claimant stated, "I want you to be

aware of it in case I have to go to the doctor." Furthermore,

contrary to claimant's testimony that he fell onto his left side,

Mike Branch denied having seen claimant fall but testified

instead that he saw claimant slip and grab his knee and then turn

to Branch and ask if he saw "what happened." Because of the

nature of the inconsistencies between the claimant's version and

the varying versions of the witnesses, the fact finder was

justified in holding that the claimant had failed to carry his

burden of proving that an accident occurred in the workplace or

that the claimant's injury was a result of any workplace

accident.

- 4 - Under Virginia law an employee may incur a compensable

injury by accident if he or she is injured in the employer's

parking lot while departing from work. See Barnes v. Stokes, 233

Va. 249, 252-53, 355 S.E.2d 330, 331-32 (1987); Brown v. Reed,

209 Va. 562, 565, 165 S.E.2d 394, 397 (1969). Even though the

evidence of some of the witnesses, if accepted by the fact

finder, might support the proposition that claimant slipped and

fell in employer's parking lot while leaving work, the fact

finder, in light of the inconsistencies, did not accept the

evidence as satisfying claimant's burden of proving that he

suffered an injury by accident. See Ratliff v. Rocco Farm Foods,

16 Va. App. 234, 238-39, 429 S.E.2d 39, 42 (1993).

Because the commission's credibility determination is

dispositive of this appeal, we do not address whether the

commission's reference to the case of Massie v. Firmstone, 134

Va. 450, 114 S.E. 652 (1922), was a misapplication of that

doctrine. Accordingly, we affirm the commission's decision. Affirmed.

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