Ioannis Anastasis v. C&T Painting Co. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
Argued at Alexandria, Virginia
IOANNIS ANASTASIS
v. Record No. 0761-95-4 MEMORANDUM OPINION *
BY JUDGE JOSEPH E. BAKER
C & T PAINTING COMPANY FEBRUARY 6, 1996
and
AETNA CASUALTY & SURETY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Craig A. Brown (Lawrence J. Pascal; Ashcraft & Gerel,
on brief), for appellant.
Roger S. Mackey (Law Offices of Conrad A. Fontaine,
on brief), for appellees.
In this appeal from a decision of the Workers' Compensation
Commission (commission), Ioannis Anastasis (claimant) presents
the sole issue of whether the commission erroneously found that
he failed to sustain his burden to show that he incurred an
injury that arose from an identifiable incident or sudden
precipitating event while employed by C & T Painting Company
(employer). Finding no error, we affirm the commission's
decision.
The facts referenced herein are stated in the light most
favorable to the employer, the prevailing party below. Crisp v.
Brown's Tysons Corner Dodge, Inc., 1 Va. App 503, 504, 339 S.E.2d
916, 916 (1986). As the parties are familiar with the facts
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
disclosed by the record, we cite only those necessary to an
understanding of this opinion.
Claimant contends that on April 27, 1993, he sustained an
injury when he fell on his buttocks while working for employer.
At the time, he says that he was sandblasting a bridge which was
to be painted. The work area where claimant testified that he
fell was on a scaffold enclosed by a tarp concealing him from the
view of others.
Christos Triantafillopolos (owner) testified that claimant
had been working as a sandblaster on a scaffold on the day
claimant asserts he fell. However, owner said that when claimant
came down from the scaffold, he stated his reason for his descent
was that he was tired and made no mention of a fall. The owner
further testified that when claimant failed to work on the
following day, he asserted that it was because his foot was tired
from moving the tarp with his foot.
One of claimant's co-workers testified that on April 27,
1993, when claimant came down for lunch nothing appeared to be
wrong with claimant but that later that day claimant said he had
"hurt his leg or neck." The co-worker further testified that
claimant said he hurt his leg while sandblasting and, because of
his advanced age, he could not meet the challenge of another
sandblaster who raced him to see who sandblasted faster.
On April 30, 1993, three days after the event claimant
contends entitles him to compensation, he was examined by Dr.
- 2 -
Panayiotis Baltatzis, an internist. Dr. Baltatzis's report
concerning claimant's first visit does not mention that claimant
asked to be treated for a back injury. Rather, the doctor's
report indicates that claimant told him that he had been pushing
against the tarp for three to four hours a day.
Several months later, when seen by other doctors, claimant
apparently referred to a "slip and fall" while at work.
In its opinion, the commission reviewed the medical evidence
and facts related by the owner and the conflicting evidence of
claimant and his witness and found that claimant had not shown by
a preponderance of the evidence that he had suffered an injury by
accident arising out of and in the course of his employment on
April 27, 1993.
The fact that contrary evidence may be in the record is of
no consequence if there is credible evidence to support the
commission's finding. Russell Loungewear v. Gray, 2 Va. App. 90,
95, 341 S.E.2d 824, 826 (1986). It is fundamental that a finding
of fact made by the commission is conclusive and binding upon
this Court. Commonwealth v. Powell, 2 Va. App. 712, 714, 347
S.E.2d 532, 533 (1986). A question raised by conflicting medical
opinions is a question of fact. Id. We have reviewed the record
and find there is credible evidence sufficient to support the
commission's decision. Accordingly, we are bound by the finding
of the commission and affirm its decision.
Affirmed.
- 3 -