COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
BOBBY HAY, T/A UP FRONT PAINTING
MEMORANDUM OPINION *
v. Record No. 1196-97-3 PER CURIAM
SEPTEMBER 30, 1997
DANNY EUGENE POWELL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert M. McAdam; David W. Hearn; Wooten &
Hart, on brief), for appellant.
(Thomas N. Key; Neil E. McNally; Key & Tatel,
on brief), for appellee.
Bobby Hay, t/a Up Front Painting (employer), contends that
the Workers' Compensation Commission erred in finding that (1)
Danny Eugene Powell proved he sustained an injury by accident
arising out of and in the course of his employment on November 6,
1995; (2) employer regularly employed three or more painters,
rendering it subject to the jurisdiction of the Workers'
Compensation Act ("the Act"); and (3) Powell remained totally
disabled since the November 6, 1995 accident, and, therefore, had
no duty to market his residual work capacity. 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.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
Powell testified that while working for employer he lost his
balance on the edge of a roof and fell approximately twelve feet
to the ground below. As a result, Powell injured his right foot.
Dr. Richard Whitehill diagnosed Powell as suffering from a
dislocated ankle and a fractured heel. Dr. Whitehill performed
surgery to correct these conditions.
In rendering its decision, the commission adopted and
affirmed the deputy commissioner's findings. The deputy
commissioner found as follows:
No testimony was presented which would
meaningfully contradict [Powell's] account of
his accident, which we hereby adopt as our
own. Although counsel for Bobby Hay inferred
that [Powell] fell because he was under the
influence of Valium, that inference was
advanced in an evidentiary vacuum, and is
unpersuasive. [Powell] said that he last
took Valium the day before he was hurt, no
medical evidence has been filed that he was
impaired, and the fact that he was able to
work nearly the entire shift until the mishap
occurred convinces us that his injury was
accidental, rather than self-imposed.
"In order to carry [the] burden of proving an 'injury by
accident,' a claimant must prove that the cause of [the] injury
was an identifiable incident or sudden precipitating event and
that it resulted in an obvious sudden mechanical or structural
change in the body." Morris v. Morris, 238 Va. 578, 589, 385
S.E.2d 858, 865 (1989). Powell's testimony and the medical
records provide credible evidence to support the commission's
finding that Powell proved an identifiable incident resulting in
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a sudden mechanical change in his body. Thus, that finding is
conclusive on this appeal. See James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In rendering its decision, the commission considered and
rejected employer's speculative contention that Powell fell due
to ingesting valium. No evidence supported this contention.
Moreover, "in determining whether credible evidence exists, the
appellate court does not retry the facts, reweigh the
preponderance of the evidence, or make its own determination of
the credibility of the witnesses." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
II.
Code § 65.2-101(2)(h) provides that an employer who has
three or more employees "regularly in service" is subject to
jurisdiction under the Act.
Powell testified that employer employed three or more
painters over an extended period of time before Powell's
accident. The commission found Powell to be credible.
Furthermore, employer offered no evidence to contradict Powell's
testimony. Based upon Powell's unrebutted testimony, we cannot
say as a matter of law that employer's evidence proved it was not
subject to the commission's jurisdiction under the Act.
III.
Based on the evidence regarding Powell's disability, the
deputy commissioner found as follows:
[Powell] was repetitively assessed by Dr.
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Whitehill as being "unable to work" during
their association. Once that association
ended, [Powell] was followed locally by a
succession of orthopedists. There is no
indication from their office notes that they
at any point gave [Powell] even a partial
work release, and Dr. [Olumide A.] Danisa
specifically indicated on April 24, 1996 that
he expected his patient to be "off work for
6-12 months." It is by no means
determinative that Dr. [Dallas P.]
Crickenberger did not similarly assess
[Powell] in his recently filed narrative
report since, as the orthopedist candidly
acknowledged, "there was no discussion
regarding" his patient's "work status" upon
the one occasion he examined him on July 31,
1996.
The commission affirmed and adopted the deputy
commissioner's finding that Powell remained totally disabled
since the November 6, 1995 accident. The medical records of Drs.
Whitehill and Danisa, along with Powell's testimony, provide
credible evidence to support the commission's findings, which we
will not disturb on appeal. Because the evidence supports the
commission's decision, Powell had no residual work capacity to
market.
For these reasons, we affirm the commission's decision.
Affirmed.
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