Kestrini, Inc. etc. v. Patricia Anne Russell ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
KESTRINI, INC. T/A
GRAPEVINE RESTAURANT
MEMORANDUM OPINION *
v. Record No. 2841-96-4 PER CURIAM
APRIL 29, 1997
PATRICIA ANNE RUSSELL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Francis Chester, on brief), for appellant.
(Gregory F. Hutchinson, on brief), for
appellee.
Kestrini, Inc. t/a Grapevine Restaurant (employer) contends
that the Workers' Compensation Commission (commission) erred in
finding that Patricia Anne Russell (claimant) proved that she
sustained an injury by accident arising out of and in the course
of her employment on June 19, 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.
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).
So viewed, the evidence established that on June 19, 1995,
claimant, a waitress, slipped and fell on a wet floor at work,
pinning her right hand underneath her. Claimant testified that
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
no one witnessed the accident. However, she stated that she told
Gail Manilla, a co-worker, and Anastasios Diniz, the owner of the
restaurant, about her fall. Manilla and Diniz did not recall the
incident. In addition, Diniz's wife testified that claimant did
not report the accident. Tim Pullen, claimant's friend,
testified that around midnight on June 20, 1995 claimant came to
his house, told him that she fell at work, that she needed to go
to the hospital and that she asked him to take her. Pullen
recalled that claimant's hand was swollen and she appeared to be
in discomfort.
The June 20, 1995 emergency room records indicate that
claimant gave a history of the accident consistent with her
testimony. In addition, she gave the same history to her
subsequent treating physicians. Claimant's treating physicians
opined that her right wrist condition was caused by the accident
as described by her.
In rendering its decision, the commission found: The
Deputy Commissioner determined that the claimant was a credible
witness and found that she had met her burden of proving a
compensable injury. We agree.
The Uninsured Employer's Fund, in its brief,
concedes that the claimant injured her wrist but
alleges that it must have occurred after work. No
evidence was offered to support this defense. We
cannot deny benefits based on unsupported speculation.
The claimant indicated that she fell on her arm and
sought treatment late that night. The medical records
are consistent with her version of events. Although
there was conflicting testimony, we find that the
claimant sustained a compensable injury.
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"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). Claimant's testimony, which was
corroborated by the medical histories and Tim Pullen's testimony,
provides credible evidence to support the commission's finding
that she proved an identifiable incident resulting in a sudden
mechanical change in her body. Thus, that finding is conclusive
on this appeal. 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 the
testimony of employer's witnesses, and resolved any
inconsistencies between this evidence and the testimony of
claimant and Pullen in favor of claimant. "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). "The fact that there is contrary evidence in the
record is of no consequence if there is credible evidence to
support the commission's finding." Id.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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