Brooke Dale Moyer v. Whitt Carpet & Tile ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
BROOKE DALE MOYER
v. Record No. 2620-96-3 MEMORANDUM OPINION *
PER CURIAM
WHITT CARPET & TILE AND FEBRUARY 25, 1997
GRANITE STATE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ronald D. Henderson; Pendleton, Garrett &
Henderson, P.C., on brief), for appellant.
(Matthew W. Broughton; Monica L. Taylor;
Gentry, Locke, Rakes & Moore, on brief), for
appellees.
Brooke Dale Moyer contends that the Workers' Compensation
Commission erred in finding that he failed to prove that he
sustained an injury by accident arising out of his employment on
June 24, 1995. 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.
To recover benefits, Moyer must establish that he suffered
an "injury by accident arising out of and in the course of [his]
employment," Code § 65.2-101, and "that the conditions of the
workplace or some significant work related exertion caused the
injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482,
484, 382 S.E.2d 305, 306 (1989). "The phrase arising 'out of'
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
refers to the origin or cause of the injury." County of
Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74
(1989). "Whether an injury arises out of the employment is a
mixed question of law and fact and is reviewable by the appellate
court." Plumb Rite, 8 Va. App. at 483, 382 S.E.2d at 305.
However, unless we conclude that Moyer proved, as a matter of
law, that his employment caused his injury, the commission's
finding is binding and conclusive on appeal. Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
On appeal, we view the evidence in the light most favorable
to the party prevailing below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). In a
telephone message left by Moyer with his employer several days
after the accident, he stated that:
[T]his was something that was already in the
making of happening and it just so happened
it happened when we were unloading that
truck. But the, ah, bottom line is I was
splitting wood all the way up to the day
before that and never felt a pain so that
particular day all I did was bent [sic] or
turned the wrong way and it caused me to
throw my back out.
In denying Moyer's application, the commission found as
follows:
We conclude from this record that
[Moyer] did have a [sic] injury at work on
June 24, 1995, as alleged. However, the
evidence does not preponderate to show that
[Moyer] was injured while actually attempting
to lift one of the heavy boxes. It is at
least equally probable that [Moyer] suffered
his injury as he merely bent to perform the
task, perhaps because his back was stressed
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and weakened by the cumulative activities
that day and those preceding, as he suggests
in his telephone message. As the Deputy
Commissioner noted, an injury suffered while
performing the simple and common acts of
walking, bending, or turning, without any
other contributing environmental factors,
does not arise out of a risk or hazard of the
employment.
Where as here, [Moyer] has proved only
that his injury resulted from one of two
causes, one of which is compensable and one
of which is not, he has not satisfied his
burden to prove that his injury more probably
that not arises out of his employment.
In its role as fact finder, the commission was entitled to
give little weight to Moyer's hearing testimony in light of its
inconsistency with the telephone message. It is well settled
that credibility determinations are within the fact finder's
exclusive purview. Goodyear Tire & Rubber Co. v. Pierce, 5 Va.
App. 374, 381, 363 S.E.2d 433, 437 (1987). Based upon this
record, the commission could conclude that it was just as
probable that Moyer's injury resulted from activities the
preceding day and merely bending over. Therefore, we hold that
Moyer failed to prove as a matter of law that his injury arose
out of his employment.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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