COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
GEORGIA-PACIFIC CORPORATION
MEMORANDUM OPINION *
v. Record No. 0858-97-2 PER CURIAM
AUGUST 26, 1997
ANTIONETTE HICKS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Cecil H. Creasey, Jr.; Steven H. Theisen;
Sands, Anderson, Marks & Miller, on brief),
for appellant.
(Jacqueline Waymack; Butterworth and Waymack,
on brief), for appellee.
Georgia-Pacific Corporation (employer) contends that the
Workers' Compensation Commission (commission) erred in finding
that Antionette Hicks (claimant) (1) proved she sustained an
injury by accident arising out of and in the course of her
employment on January 3, 1996; (2) proved she sustained
disability causally related to a January 3, 1996 injury by
accident; (3) proved she marketed her residual capacity beginning
January 31, 1996; and (4) was not barred from receiving an award
of compensation benefits due to willful misconduct. 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. Injury By Accident
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Claimant testified that on January 3, 1996, employer
assigned her to run a clipper machine. The machine was not
working properly, and, at approximately midnight, while pulling
on veneer, claimant felt a "twist" in her arm. Later, claimant's
arm began to ache and tingle. Claimant stated that she reported
the incident to her supervisor, Michael Wynn. Wynn told claimant
she was just frustrated and left work without recording the
accident. The next night claimant reported the incident to
another supervisor, Bobby Butler. Butler took claimant off the
clipper machine, and claimant continued to work without using her
arm.
On January 15, 1996, claimant sought medical
treatment from Dr. H.I. Sayed.
Claimant gave Dr. Sayed the
following history:
[D]uring her shift 6pm - 430
am around 12 am she reported her
incident. P[atient] was working
[with] a tray belt & it kept
getting hung up & she says she was
pushing, pulling at the wood so it
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wouldn't be caught. So during
this, her rt arm felt twisted. She
has had pain every [sic] since
[date of accident] & now some
numbness & tingling . . . .
Dr. Sayed diagnosed lateral malleolitis of the right elbow. A
subsequent x-ray revealed a fracture of the lateral aspect of the
radial head of the right elbow.
Claimant also testified that on October 9, 1995, she tried
to catch her son as he fell off his bike, causing claimant to
fall on her right side on the grass. She sought emergency
medical treatment. The hospital medical records showed that
claimant was diagnosed with a right elbow and right shoulder
sprain. The hospital records also showed that x-rays revealed
that "[a]lthough subtle, there is evidence of an undisplaced
radial head fracture." Claimant maintained that she was never
told of the fracture. She believed she had a minor sprain, and
she did not miss any work nor reduce her work load between
October 9, 1995 and January 3, 1996.
Based upon this evidence, the commission found that claimant
credibly described an injury by accident which occurred when she
was pulling on veneer.
"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
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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).
Claimant's testimony, which was corroborated by the history
contained in Dr. Sayed's medical records, provides credible
evidence to support the commission's finding that claimant
sustained an injury by accident arising out of and in the course
of her employment on January 3, 1996. 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).
II. Causation/Disability
"The actual determination of causation is a factual finding
that will not be disturbed on appeal if there is credible
evidence to support the finding." Ingersoll-Rand Co. v. Musick,
7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989).
Credible evidence proved that the October 9, 1995 injury was
minor and did not affect claimant's ability to work her regular
job. After the January 3, 1996 incident, claimant was unable to
perform her pre-injury work and sustained a definite injury to
her right elbow. Based upon this evidence, the commission could
infer that claimant's post-January 3, 1996 disability was
causally related to the January 3, 1996 injury by accident.
"Where reasonable inferences can be drawn from the evidence in
support of the commission's factual findings, they will not be
disturbed by this Court on appeal." Hawks v. Henrico County Sch.
4
Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). Moreover,
"the commission was free to credit claimant's testimony at the
hearing as a basis for its finding of causation. The fact that
contrary evidence may appear in the record 'is of no consequence
if there is credible evidence to support the commission's
finding.'" Dollar General Store v. Cridlin, 22 Va. App. 171,
177, 468 S.E.2d 152, 155 (1996) (quoting Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)).
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III. Marketing
A claimant's effort to market his (or her) residual capacity
must be evaluated in the context of "reasonableness." See
Ridenhour v. City of Newport News, 12 Va. App. 415, 418, 404
S.E.2d 89, 90 (1991).
Here, Dr. Sayed placed claimant on light-duty status for
four weeks beginning January 15, 1996. According to claimant,
employer provided her with light-duty work after the January 3,
1996 injury by accident, but suspended claimant on January 31,
1996, without explanation. Employer did not terminate claimant
until February 6, 1996. Between mid-February and the beginning
of March 1996, claimant registered with the Virginia Employment
Commission.
Based upon this record, the commission awarded claimant
temporary total disability benefits between February 7, 1996 and
February 14, 1996. Due to the short duration of the period of
disability, the commission was entitled in its discretion to
excuse claimant's failure to market her residual capacity. See
Holly Farms Foods, Inc. v. Carter, 15 Va. App. 29, 42, 422 S.E.2d
165, 172 (1992) (where employee is released to return to light
duty for short period of time, employee not required to prove
marketing efforts).
IV. Willful Misconduct
Employer argues that the commission erred in refusing to
find that claimant was barred from receiving an award of workers'
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compensation benefits on the ground that employer terminated
claimant from selective employment procured by employer for
claimant due to claimant's willful misconduct in failing to
reveal her October 1995 elbow fracture to employer or her
doctors.
Code § 65.2-306(1) bars compensation for an injury or death
caused by the employee's willful misconduct or self-inflicted
injury. "Willful misconduct requires something more than
negligence. '[It] . . . imports something more than a mere
exercise of the will in doing the act. It imports a wrongful
intention.'" Uninsured Employer's Fund v. Keppel, 1 Va. App.
162, 164, 335 S.E.2d 851, 852 (1985) (citation omitted).
Credible evidence proved that the October 1995 injury was
minor and did not cause disability. Claimant testified that she
was not aware that she had sustained any fracture as a result of
the October 1995 incident. In its role as fact finder, the
commission was entitled to accept claimant's testimony. Based
upon this evidence, the commission could conclude that claimant
did not intend to mislead her employer or her doctors when she
failed to mention the October 1995 incident. Accordingly, the
commission did not err in holding that claimant was not barred
from receiving an award of compensation benefits on the ground of
willful misconduct.
For these reasons, we affirm the commission's decision.
Affirmed.
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Georgia-Pacific Corporation v. Antionette Hicks
Combined Opinion