COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
WALKER MACHINE & FOUNDRY CORP.
AND
TRAVELERS INSURANCE COMPANY MEMORANDUM OPINION *
PER CURIAM
v. Record No. 2539-95-3 MAY 14, 1996
ANN C. McALPIN
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Douglas D. Wilson; Barbara J. Taylor;
Parvin, Wilson & Barnett, on briefs), for
appellants.
(Richard M. Thomas; Rider, Thomas,
Cleaveland, Ferris & Eakin, on brief), for
appellee.
Walker Machine & Foundry Corp. and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that employer failed to
prove that the claim for compensation benefits filed by David F.
McAlpin's widow was not barred by McAlpin's willful misconduct.
Upon reviewing the record and the briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
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summarily affirm the commission's decision. Rule 5A:27.
McAlpin was killed in the course of his employment on
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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Because we summarily affirm the commission's decision
pursuant to Rule 5A:27, we need not address employer's Motion to
Deny Appellee Oral Argument.
October 12, 1993, when an annealing oven exploded. None of
McAlpin's co-workers witnessed the accident. The dispute in this
case is whether McAlpin attempted to light the annealing oven
without opening its doors, in violation of employer's safety
rule, and whether this alleged conduct caused the explosion and
McAlpin's death.
Employer's vice president of operations testified that
McAlpin had run the annealing oven since 1984. McAlpin had
prepared the operating manual for the annealing oven and had
taught his supervisor, the foundry manager, how to operate the
annealing oven, instructing him to keep the doors open when
lighting the oven.
Roger Owens, a registered professional engineer, testified
on behalf of McAlpin's widow. Owens inspected the remains of the
annealing oven, the associated valve and control systems,
blueprints, and temperature recording charts. Based upon his
investigation, Owens opined that McAlpin's conduct had
"absolutely" nothing to do with the cause of the explosion.
Owens stated that, based upon the temperature records for October
12, 1993, the oven's temperature was 100 degrees fahrenheit at
approximately 2:45 p.m. Over a six to eight minute period, the
temperature increased sharply to 820 degrees fahrenheit, followed
by a "flame-out," an unexpected event. Over the next one and
one-quarter hours, a "cool-down" to 200 degrees fahrenheit
occurred. Owens opined that after this "cool-down," a safe re-
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ignition occurred, and the temperature climbed to 920 degrees
fahrenheit in six to eight minutes. Owens opined that another
"flame-out" occurred at the 920 degrees temperature, after which
gas continued to enter the annealing oven. When the oven's
temperature exceeded the gas' explosive ignition temperature and
the concentration of gas reached the explosive range, the
explosion occurred. Owens concluded that McAlpin probably
realized that a "flame-out" had occurred due to background noise,
and that the explosion occurred as he went to shut off the gas.
Owens stated that it made no difference whether the annealing
oven doors were open or closed, because a safe re-ignition had
already occurred. He also concluded that, if McAlpin had tried
to restart the oven with gas in it, the oven would have exploded
immediately and McAlpin would not have had time to get to the
control panel in front of the oven, where he was found after the
explosion.
Daniel Smith, a mechanical engineer, testified on behalf of
the employer. Smith did not inspect the temperature recorder.
In his July 7, 1994 report, Smith concluded that
[n]atural gas was present in the annealing
oven when the explosion occurred, otherwise
there would have been no explosion. It is
most probable that [McAlpin] activated the
reset control prior to opening the [oven's]
doors. He apparently did not wait for the
light confirming ignition before leaving the
control panel. Both of these actions
violated safety instructions. . . .
Smith opined that, if the doors had been open, no gas would have
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accumulated and no explosion would have occurred. Smith conceded
that the fire eye system could have failed, and that if such a
failure occurred, a "flame-out" followed by ignition could occur.
Smith admitted that if Owens was correct about the temperature
and gas was present in the oven in a 2% concentration, an
explosion could have occurred.
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).
"Factual findings of the commission are binding on appeal."
Spruill v. C.W. Wright Constr. Co., 8 Va. App. 330, 332, 381
S.E.2d 359, 360 (1989). "'The questions of whether or not a
claimant has been guilty of willful misconduct and whether such
misconduct was a proximate cause of the employee's accident are
issues of fact.'" Uninsured Employer's Fund v. Keppel, 1 Va.
App. 162, 165, 335 S.E.2d 851, 852 (1985). Moreover, "[i]n
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).
In its role as fact finder, the commission was entitled to
accept Owens' opinions to be "more convincing than that of . . .
Smith." In so finding, the commission relied, in part, upon the
deputy commissioner's conclusion that Owens' demeanor was more
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credible than Smith's demeanor. The commission also found that
Owens' analysis was more detailed and his interpretation of the
charts was more thorough and convincing than Smith's. Owens'
opinions constitute credible evidence to support the commission's
finding that employer failed to prove that McAlpin willfully
violated a safety rule. "The existence of contrary evidence in
the record is of no consequence if there is credible evidence to
support the commission's finding." Id. at 894, 407 S.E.2d at 35.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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