Timothy Floyd Dunbar v. RLF Iron Erectors

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Duff*
TIMOTHY FLOYD DUNBAR
MEMORANDUM OPINION **
v. Record No. 2451-00-3 PER CURIAM
FEBRUARY 6, 2001
RLF IRON ERECTORS, INC. AND
AMERICAN INTERSTATE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert E. Evans, on brief), for appellant.
(John C. Johnson; Catherine I. Henritze;
Frith Anderson & Peake, P.C., on brief), for
appellees.
Timothy Floyd Dunbar contends the Workers' Compensation
Commission erred in finding that (1) he failed to prove his
fractured leg was causally related to his compensable injury by
accident; and (2) in the alternative, that if he fractured his
leg during a scuffle with a co-worker, the injury did not occur
in the course of his employment. 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. See Rule 5A:27.
* Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
**
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So
viewed, the commission found as follows:
[A]n I-beam rolled on the claimant's foot,
causing him pain. The claimant was the only
one who said that the beam struck his lower
leg. [Howard] Farris stated that the beam
struck the claimant's foot and that he
worked the rest of the day with a limp.
[Kevin] Huber said that the beam fell on
[claimant's] foot and ankle area in the
morning and that he subsequently limped.
Similarly, [Jonathan] Holliday testified
that the claimant told him about the beam
rolling on his foot around 10 or 11 a.m.
[Fred] Hull confirmed that [claimant]
desired medical attention because he was
suffering pain and wanted his foot x-rayed.
Based on the foregoing, we find that the
claimant injured his left foot on the
morning of June 2, 1999, when it was struck
by an I-beam.
However, there is no evidence to
suggest that the injury to the foot
necessitated any medical care or that it
caused the tibia/fibula fracture and
resultant disability. As stated above,
everyone except the claimant testified that
the I-beam struck his foot, and perhaps his
ankle. It is uncontradicted that he
continued to work and that he was able to
scale a 40-foot ladder after the incident.
Although the claimant limped after the
morning incident, he was able to walk on his
left leg until after the altercation with
Hull later that evening. Significantly, Dr.
[Ian D.] Archibald advised that it would be
highly unlikely that [claimant] could have
walked, even with a limp, with the type of
injury he presented with at the hospital.
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We also note that the history the
claimant provided to his health care
professionals was incomplete. He
consistently reported his injury occurred at
5 p.m. Witness testimony directly
contradicts this timeframe. Further, no
medical report mentioned the scuffle or that
the claimant fell to the ground, which
caused greater pain than that related to the
morning incident.
As fact finder, the commission was entitled to reject
Dunbar's testimony and to accept the testimony of his co-workers
that the I-beam either rolled over or struck Dunbar's foot and
that he continued to work after that incident. 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).
It is equally well settled that the commission's findings
of fact, if supported by credible evidence, are conclusive and
binding on appeal. See Code § 65.2-706; Ivey v. Puckett Constr.
Co., 230 Va. 486, 488, 338 S.E.2d 640, 641 (1986). In light of
the testimony of Dunbar's co-workers, Dr. Archibald's opinion,
and Dunbar's failure to report the scuffle incident to the
initial medical providers, we cannot find as a matter of law
that Dunbar sustained his burden of proving that his fractured
leg was causally related to the I-beam incident. See Tomko v.
Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835
(1970).
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II.
"To qualify for workers' compensation benefits, an
employee's injuries must result from an event 'arising out of'
and 'in the course of' the employment." Pinkerton's, Inc. v.
Helmes, 242 Va. 378, 380, 410 S.E.2d 646, 647 (1991). "An
injury 'occurs in the "course of employment" when it takes place
within the period of employment, at a place where the employee
may be reasonably expected to be, and while he is fulfilling the
duties of his employment or is doing something which is
reasonably incidental thereto.'" Lucas v. Lucas, 212 Va. 561,
563, 186 S.E.2d 63, 64 (1972) (quoting Conner v. Bragg, 203 Va.
204, 207-08, 123 S.E.2d 393, 396 (1962)). "A finding by the
Commission that an injury [did not arise] out of and in the
course of employment is a mixed finding of law and fact and is
properly reviewable on appeal." Dublin Garment Co., Inc. v.
Jones, 2 Va. App. 165, 167, 342 S.E.2d 638, 638 (1986).
Hull testified that after the workers arrived at the motel
on the evening of June 2, 1999, he and Dunbar drank an
eighteen-pack of beer. He and Dunbar argued because Dunbar
wanted Hull to take him to the hospital to have his foot
x-rayed. Hull testified that when he refused because he did not
want to drive after he had been drinking, he and Dunbar tussled.
During the tussling they fell over a curb. Holliday confirmed
that Hull and Dunbar argued and tussled after drinking beer.
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Indeed, Dunbar confirmed these events and testified that, when
he fell onto the pavement, Hull fell on him. Dunbar does not
dispute that his condition was worse after the scuffle than when
they had arrived at the motel.
The commission found that the altercation occurred after
Dunbar drank numerous beers and that he actively participated in
horseplay. Thus, the commission ruled that even if Dunbar and
Hull were arguing about a work-related matter when his leg was
fractured, "any injury arising from the scuffle occurred outside
the scope of employment." See Mullens v. Westmoreland Coal Co.,
10 Va. App. 304, 307-08, 391 S.E.2d 609, 611 (1990). See also
Kensington Associates v. West, 234 Va. 430, 436, 362 S.E.2d 900,
901 (1987).
The commission's factual findings are supported by the
testimony of Dunbar, Hull, and Holliday. Based upon credible
testimony, the commission could reasonably conclude that when
Dunbar injured his leg during the scuffle, he was not fulfilling
the duties of his employment or doing something which was
reasonably incidental thereto. Based upon this record, we
cannot find as a matter of law that Dunbar sustained his burden
of proving that any injury he suffered during the scuffle
occurred in the course of his employment.
For these reasons, we affirm the commission's decision.
Affirmed.
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