Robert Beatty v. Narricot Industries, Inc. ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia
ROBERT BEATTY
MEMORANDUM OPINION * BY
v. Record No. 2322-96-1 JUDGE NELSON T. OVERTON
APRIL 29, 1997
NARRICOT INDUSTRIES, INC., ET AL.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Richard E. Railey, Jr. (Railey & Railey,
P.C., on brief), for appellant.
Arthur T. Aylward (Midkiff & Hiner, P.C., on
brief), for appellees.
Robert Beatty appeals from a decision of the Workers’
Compensation Commission that found that an injury he suffered
while working for Narricot Industries, Inc. did not arise out of
his employment. 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
the burden of proving his injury arose out of his employment.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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).
Beatty originally told his employer, his doctors, and the
insurance adjuster that his injury occurred when he twisted in
his seat at work. For the first time at the deputy
commissioner’s hearing, Beatty testified that the injury occurred
as he rode over a bump. As the fact finder, the commission was
entitled to resolve this factual discrepancy as to how the injury
occurred, see Grove v. Allied Signal, Inc., 15 Va. App. 17, 19,
421 S.E.2d 32, 33 (1992), and find that Beatty’s accident did in
fact occur as he was twisting. Credible evidence supports this
determination.
Injuries from simple acts such as walking, bending, turning,
or, in this case, twisting, do not arise out of the employment
absent some condition of the employment which contributes to the
injury. See County of Chesterfield v. Johnson, 237 Va. 180, 186,
376 S.E.2d 73, 76 (1989). The evidence does not support the
existence of such a condition of employment.
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Narricot Industries cross-appeals, contending that the
commission erred in finding that the injury occurred while in the
course of Beatty’s employment. Because our holding above
disposes of this matter completely, we need not address the
cross-appeal.
Accordingly, the commission's decision is affirmed.
Affirmed.
3