Electrodyne, Inc. v. Kim Harrison ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Overton and Senior Judge Duff
Argued by Teleconference
ELECTRODYNE, INC., ET AL.
MEMORANDUM OPINION * BY
v. Record No. 2374-96-4 JUDGE NELSON T. OVERTON
JUNE 10, 1997
KIM HARRISON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Benjamin J. Trichilo (Trichilo, Bancroft,
McGavin, Horvath & Judkins, P.C., on briefs),
for appellants.
William A. Musto (Koonz, McKenney, Johnson,
DePaolis & Lightfoot, P.C., on brief), for
appellee.
Electrodyne, Inc. (employer) appeals from a decision of the
Workers' Compensation Commission awarding Kim Harrison benefits
for a work-related injury. Finding credible evidence in the
record to support the commission's decision, we affirm.
The parties are fully conversant with the record in the
cause, and because this memorandum opinion carries no
precedential value, no recitation of the facts is necessary.
Guided by well established principles, we construe the
evidence in the light most favorable to the party prevailing
below. See Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.
App. 503, 504, 339 S.E.2d 916, 916 (1986). The claimant bears
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the burden of proving his injury arose out of his employment.
See Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 433, 437
S.E.2d 727, 729 (1993). The issue of whether an injury arose out
of employment is a mixed question of law and fact, reviewable on
appeal. See Southside Training Center v. Shell, 20 Va. App. 199,
202, 455 S.E.2d 761, 763 (1995). However, the commission's
underlying findings of fact will not be disturbed on review if
credible evidence supports them. See Hill, 17 Va. App. at 435,
437 S.E.2d at 729-30; Ogden Allied Aviation v. Shuck, 17 Va. App.
53, 55, 434 S.E.2d 921, 922 (1993).
Employer first asserts that Harrison's condition was not the
result of a work-related injury by accident. The evidence,
however, supports the commission's conclusion that an accident
occurred. Harrison's coworkers saw him looking at his foot that
day, and he later recounted the event to others. The doctors'
notes contain a mention of the accident. After reviewing all of
the evidence and hearing testimony, the commission found that the
accident did occur. This factual finding will be upheld on
appeal because credible evidence supports it.
Employer next asserts that Harrison is not entitled to
benefits after May 23, 1995 because Harrison did not originally
request benefits for that period and then presented insufficient
evidence to support disability after May 23. Although the
initial claim did not request benefits after this date, by the
time of the hearing the claim had been amended to include this
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period as well and was stated on the record. After his surgery,
Harrison could not stay on his feet and had to work sitting down,
and for fewer days per week. The commission specifically found
in its opinion that Harrison's "reduction in pay is based upon
the employer's withdrawal of light duty employment." Finding
credible evidence to support this determination, we affirm the
award of temporary partial disability benefits after May 23,
1995.
Accordingly, the decision of the commission is affirmed.
Affirmed.
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