Design Landscapes, Inc., et al. v Linda Mizzell,et

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
DESIGN LANDSCAPES,INC. AND
COMMONWEALTH CONTRACTORS GROUP
SELF-INSURANCE
MEMORANDUM OPINION*
v. 	Record No. 0809-00-3 	PER CURIAM
AUGUST 22, 2000
LINDA KAE MIZZELL,
BY HER GUARDIAN AND CONSERVATOR,
JOHN MIZZELL, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William C. Walker; Donna White Kearney;
Taylor & Walker, P.C., on brief), for
appellants.
(Kristine H. Smith; Edmunds & Williams, P.C.,
on brief), for appellee.
Design Landscapes, Inc. and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Linda Kae Mizzell,
by her guardian and conservator, John Mizzell, Jr. (hereinafter
referred to as "Mizzell") proved that (1) she sustained an
injury by accident in the scope of her employment; and (2) she
remained totally disabled after February 10, 1999. 	Upon
reviewing the record and the briefs of the parties, we conclude
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

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that this appeal is without merit. 	Accordingly, we summarily
affirm the commission's decision. 	See Rule 5A:27.
I.
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).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. 	See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In holding that Mizzell proved that she sustained an injury
by accident occurring in the scope of her employment, the
commission found as follows:
[E]mployer argues that the evidence
establishes that [Mizzell] sustained injury
as a result of a suicide attempt and that
therefore her claim is barred by Virginia
Code § 65.2-306.1 There are several
references in the initial medical records to
a statement from an unnamed family member
alluding to the possibility that the
accident was actually a suicide attempt.
Dr. [Hope S.] Thompson, who authored one of
these reports, testified that she could not
recall the source of the information
recorded in the history and physical.
1 The hearing transcript revealed that employer abandoned
its misconduct defense and, rather, maintained that Mizzell did
not sustain an injury by accident arising out of and in the
scope of her employment on the ground that the accident was due
to her intentional unsuccessful suicide attempt. 	Employer
maintained the same argument on review and does so now on
appeal. 	Thus, although the commission incorrectly cited to
§ 65.2-306, it correctly decided the issue of whether Mizzell
proved that she sustained an injury by accident occurring within
the scope of her employment.

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Further, she testified that she did not
speak to either [Mizzell] or any of the
family members at any time. 	[Mizzell]
denied any suicidal ideations and, likewise,
the family members called to testify stated
that they did not raise these concerns to
the treating physicians. 	Indeed, each
denied the possibility that [Mizzell] was
depressed or suicidal prior to the motor
vehicle accident. 	Wilcox, [Mizzell's]
roommate, also denied that [Mizzell] was
suicidal in the period immediately prior to
October 30, 1998. 	We find the evidence
insufficient to establish that [Mizzell]
sustained injury due to an unsuccessful
suicide attempt.
(Footnote added.)
The commission's factual findings are supported by credible
evidence, including the testimony of Mizzell, her family
members, her roommate, and Dr. Thompson. 	"The fact that there
is contrary evidence in the record is of no consequence if there
is credible evidence to support the commission's finding."
Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d
32, 35 (1991). 	Because credible evidence supports the
commission's decision, we will not disturb it on appeal.
II.
In holding that Mizzell proved that she remained totally
disabled after February 10, 1999, the commission found as
follows:
This finding was based in part on . . .
observations of [Mizzell] during the
hearing, as well as the absence of any
medical reports after February 10, 1999. 	We
note that [Mizzell] was evaluated on that

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date and was instructed to return in six
months. 	There is no evidence of any
substantive change in [Mizzell's] condition
after February 10, 1999. 	Additionally,
there is no medical opinion before us to
indicate that [Mizzell] was, in fact,
released to return to work by any of her
treating physicians. 	There are several
references in the medical record to
recommendations for further diagnostic
studies to be completed prior to [Mizzell's]
release to return to work in any capacity.
We note that [Mizzell] sustained
significant injury to her brain as a result
of the motor vehicle accident. 	From the
medical records considered in their
entirety, it appears that [Mizzell]
continues to suffer from cognitive
disorders, which may not be evident from
casual observation.
In light of the commission's review of Mizzell's medical
records reflecting continuing treatment and therapy for her
brain injury as of February 10, 1999, and the lack of any
release to return to work by her treating physicians, the
commission was entitled to infer that Mizzell remained totally
disabled after February 10, 1999. 	"Where reasonable inferences
may be drawn from the evidence in support of the commission's
factual findings, 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).
For these reasons, we affirm the commission's decision.
Affirmed.