Rosalyn Mayfield v The Southland Corporation, etal

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia
ROSALYN MAYFIELD
v. 	Record No. 1826-95-1 	MEMORANDUM OPINION*
BY JUDGE JOSEPH E. BAKER
THE SOUTHLAND CORPORATION 	APRIL 9, 1996
and
AMERICAN PROTECTION INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Karen M. Rye (Melody L. Cockrell, on brief),
for appellant.
Timothy P. Murphy (William W. Nexsen;
Stackhouse, Smith & Nexsen, on brief), for
appellees.
Rosalyn Mayfield (claimant) appeals from a decision of the
Workers' Compensation Commission (commission) that denied her
claim for compensation benefits for injuries she contends she
received in an accident while in the employ of The Southland
Corporation (employer). 	The deputy commissioner ruled in her
favor; however, on review by the full commission, it concluded
that "a preponderance of the evidence fails to support claimant's
claim," and the opinion of the deputy was reversed and the
recommended award vacated.
Although claimant frames four issues for our decision, all
are determined by whether claimant, as a matter of law, met her
burden to prove she received compensable injuries arising out of
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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an accident that was work related.
Claimant's principal argument is that the parties agreed
that "an accident had occurred arising out of and in the course
of [claimant's] employment"1 but concedes that employer's defense
that an injury did not occur in that accident remained "intact
despite the stipulation" and "that [the] stipulation
. . . does not jeopardize the defenses otherwise put forth by
Employer." 	Employer concedes that it defended this "claim on the
grounds that [claimant] was not injured as a result of the
incident." 	However, employer contends a stipulation that an
"incident" occurred is not a concession that an "accident"
occurred.2 As we view the commission's opinion, its decision may
be read to say that if an accident occurred, claimant failed to
meet her burden to show that a compensable injury resulted
therefrom.
In its opinion, the commission stated that because there is
a "significant legal distinction" between the words "incident"
and "accident," the burden remains on claimant to show by the
record that an accident within the meaning of the Workers'
Compensation Act (Act) "in fact occurred, and the said accident
1That statement appears to be the understanding of the
deputy commissioner whose opinion states that the parties "agreed
that an accident took place within the course of the claimant's
employment but denies that the claimant was injured in the
accident."
2Employer's assertion that it agreed only that an "incident"
occurred pales in the face of the statement made by the deputy in
its opinion.

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arose out of and during the course of employment with this
employer." 	For the purposes of our opinion, we find that the
record adequately establishes that this was an accident within
the meaning of the Act that occurred during the course of
claimant's employment. 	The issue, therefore, is whether the
record supports the commission's finding that the record did not
contain credible evidence sufficient to meet claimant's burden to
show that she suffered a compensable injury as a result of that
accident.
The following statements taken from the commission's opinion
disclose that its findings of fact, based upon the lack of
credibility of claimant's proof that her injuries were received
in the November 26, 1993 accident, are supported by the record:
As this case is before the Commission on
the claimant's claim, she has the burden of
proving by a preponderance of the evidence
that she suffered injury by accident that
arose out of and during the course of the
employment with this employer. 	That burden
is one of persuasion. 	It is not sufficient
to show that an accident occurred without
also showing that injury resulted from that
accident.
[T]he Commission has traditionally not
required strict formality and unwavering
adherence to evidentiary rules. 	However, the
Commission has insisted that the record taken
as a whole must establish in each particular
case that an accident defined in the Act in
fact did occur, and that injury resulted from
that accident.
* 	* 	* 	* 	* 	* 	*
Defense Exhibit 2 was completed by three
separate individuals; claimant, M. Mallory,
and Dr. Woods, and the same question was
asked to all three individuals, and that

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question was whether the disability arose
from injury or illness arising out of the
employment with this employer, and all three
individuals stated "no" it did not. 	The
position taken by claimant in Defense Exhibit
2 is contradictory of the position she takes
before the Commission. 	Although we may
overlook minor inconsistencies in the
evidence considered in its entirety, the
inconsistencies in this record raise
substantial credibility questions and call
into doubt the testimony given by claimant.
The same inconsistencies likewise detract
from the medical opinions of record. . . .
[T]hese medical opinions lack the probative
value and weight necessary to establish the
requisite causal connection between the
incident claimant describes and the injury
she claims.
Contrary to claimant's assertions, the commission's opinion
was based upon its finding that claimant's medical evidence was
not sufficiently credible to convince the fact finder that
claimant had sustained a compensable injury that arose from the
collision/accident that occurred on November 26, 1993.
"'Generally, the full commission remains free to make
different findings of fact than those made by the deputy
commissioner.'" 	Virginia Dep't. of State Police v. Dean, 16 Va.
App. 254, 257, 430 S.E.2d 550, 551 (1993) (quoting Williams v.
Auto Brokers, 6 Va. App. 570, 573, 370 S.E.2d 321, 323 (1988)).
"We must view the evidence in the light most favorable to the
employer, as the prevailing party below, and '[t]he fact that
contrary evidence may be found in the record is of no consequence
if credible evidence supports the commission's finding.'
Manassas, 13 Va. App. at 229, 409 S.E.2d at 826 (citations

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omitted)." 	Bean v. Hungerford Mechanical Corp., 16 Va. App. 183,
186, 428 S.E.2d 762, 764 (1993). 	"A question raised by
conflicting medical opinion is a question of fact." 	Commonwealth
v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986)
(citations omitted); see also Cafaro Constr. Co. v. Strother, 15
Va. App. 656, 660, 426 S.E.2d 489, 491 (1993); City of Norfolk v.
Lillard, 15 Va. App. 424, 429, 424 S.E.2d 243, 246 (1992); Island
Creek Coal Co. v. Honaker, 9 Va. App. 336, 340, 388 S.E.2d 271,
273 (1990). 	"Generally, a ruling by the commission that the
claimant's evidence is insufficient to prove that an injury was
causally related to the employment must be upheld on appeal
because the question is one of causation, which is a factual
determination frequently turning upon the weight and credibility
accorded to the evidence." 	Stancill v. Ford Motor Co., 15 Va.
App. 54, 57, 421 S.E.2d 872, 874 (1992) (citing Code
§ 65.2-706(A)); Island Creek Coal Co. v. Breeding, 6 Va. App. 1,
12, 365 S.E.2d 782, 788 (1988). 	"The actual determination of
causation is a factual finding that will not be disturbed on
appeal if there is credible evidence to support the finding."
Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d
814, 817 (1989) (citing Code § 65.1-98, now Code § 65.2-706); see
also American Filtrona Co. v. Hanford, 16 Va. App. 159, 165, 428
S.E.2d 511, 515 (1993); Lillard, 15 Va. App. at 430, 424 S.E.2d
at 246 (1992). 	"Where reasonable inferences may be drawn from
the evidence in support of the commission's factual findings,

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they will not be disturbed by this Court on appeal." 	Hawks v.
Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698
(1988) (citation omitted); see also Chase Packaging Corp. v.
Dorsey, 15 Va. App. 248, 251, 421 S.E.2d 907, 909 (1992). 	"The
commission made the initial and only resolution of the factual
discrepancy [in the conflicting testimony]. . . . 	We are bound
by that factual finding." 	Grove v. Allied Signal, Inc., 15 Va.
App. 17, 19, 421 S.E.2d, 32, 33 (1992).
We cannot say that the commission's finding was plainly
wrong or that the record does not support its decision.
Accordingly, in response to the issues stated by claimant, we
find that we are not required to reverse the commission's finding
as to whether an accident occurred; that considered in its
entirety, the record does not require that we remand this case
for further consideration by the commission; and that the
commission's decision is supported by credible evidence and is
affirmed.
Affirmed.