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.
- 5 -