Jack's Ice Cream, Inc. et al v Betty S. Richardson

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Elder and Fitzpatrick
JACK'S ICE CREAM, INC.
AND
LIBERTY MUTUAL INSURANCE COMPANY
v. 	Record No. 2627-94-1 	MEMORANDUM OPINION*
PER CURIAM
BETTY S. RICHARDSON 	JUNE 27, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William C. Walker; Donna White Kearney; Taylor &
Walker, on brief), for appellants.
(Robert J. Macbeth, Jr.; Rutter & Montagna, on brief),
for appellee.
Jack's Ice Cream, Inc. and its insurer (hereinafter
collectively referred to as employer) contend that the Workers'
Compensation Commission (commission) erred in finding that Betty
S. Richardson (claimant) proved an injury by accident arising out
of and in the course of her employment on April 10, 1994. 	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).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. 	James v. Capitol Steel
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
"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).
Claimant testified that, on April 10, 1994, in the course of
her employment as an ice cream truck driver, she injured her
right knee and left shoulder as she was preparing to load her
truck. 	In describing the accident, claimant stated that she
placed her left foot on the truck's step, which contained "oil
and grease . . . ." 	She slipped and fell, striking her right
knee on the truck's metal step. 	She also stated that she pulled
her shoulder when she attempted to catch herself as she fell.
Claimant's coworkers testified that she reported an incident
to them, although their testimony conflicted as to the date she
reported the incident. 	The coworkers testified that claimant
told them that she bumped her knee on the corner of a freezer
located inside the truck. 	The May 11, 1994 Employer's First
Report of Accident, completed by Jo S. Fingleton, President of
Jack's Ice Cream, Inc., contained an April 24, 1994 date of
injury, and it reflected that claimant "hit [her] knee when
getting off truck." 	The May 16, 1994 Employer's First Report of
Accident, also completed by Fingleton, contained an April 10,
1994 date of injury, and it reflected that claimant "hit [her]

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knee on truck."
The commission found that "the general substantive content
of the testimony of the witnesses is consistent with and
essentially corroborates the testimony of the claimant to prove
an injury by accident as alleged."
The commission, in its role as fact finder, resolved any
inconsistencies between claimant's testimony and that of her
coworkers in favor of claimant. 	The commission found that
claimant sustained an injury by accident arising out of and in
the course of her employment on April 10, 1994, resulting in
right knee and left shoulder injuries. 	Claimant's testimony,
along with the corroborating medical records which reflect a
history of right knee and left shoulder pain following a
fall-type injury, provide credible evidence to support this
finding. 	Thus, we are bound by this finding on appeal.
For the reasons stated, we affirm the commission's decision.
Affirmed.