Checkered Flag Motor Car Company, et al.v Chettiar

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COURT OF APPEALS OF VI RGN A

Present: Judges Benton, Coleman and Wllis

CHECKERED FLAG MOOR CAR COMPANY
AND
VADA GROUP SELF- I NSURANCE ASSOCI ATT ON
MEMORANDUM OPI NI ON*

Vv. Record No. 1290- 99- 1 PER CURI AM
OCTOBER 5, 1999

THANN MALI V. CHETTT AR
FROM THE VI RGlN A WORKERS' CONVPENSATT ON COMM SSI ON

(Steven H Theisen; Mdkiff @Hner, P.C, on
briefs), for appellants.

(Karen M Rye; Kenneth J. Coughlan; Law
Office of Karen M Bye, on brief), for
appel | ee.

Checkered Flag Mtor Car Conpany and its insurer
(hereinafter referred to as "“enployer") contend that the
Wrkers' Conpensation Conmssion erred in finding that
Thanni mali V. Chettiar proved that (1) he sustained an injury by
accident arising out of his enploynent on Septenber 7, 1995; and
(2) his nedical treatment and disability due to his Charcot foot
was causally related to his Septenber 7, 1995 injury by

accident. Upon reviewng the record and the briefs of the

parties, we conclude that this appeal is wthout nerit.

* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

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Accordingly, we summarily affirm the commission's decision. 	See
Rule 5A:27.
I.
"To prove the 'arising out of' element, [in a case
involving injuries sustained from falling at work, claimant]
must show that a condition of the workplace either caused or
contributed to [his] fall." 	Southside Virginia Training Ctr. v.
Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995) (citing
County of Chesterfield v. Johnson, 237 Va. 180, 184, 376 S.E.2d
73, 76 (1989)). 	"Whether an injury arises out of the employment
is a mixed question of law and fact and is reviewable by the
appellate court." 	Plumb Rite Plumbing Serv. v. Barbour, 8 Va.
App. 482, 483, 382 S.E.2d 305, 305 (1989).
In ruling that Chettiar proved that the conditions of his
employment caused him to trip on the steps, the commission found
as follows:
[T]he testimony establishes that the
employer's salespeople take part in an "open
game" to reach customers and whoever reaches
the customer first gets to attempt the sale.
On the day of the accident, [Chettiar] and
other salespeople were heading quickly
toward a customer. 	[Chettiar] did not focus
his attention on the stairs when he tripped
and fell because he was rushing to reach the
customer first. 	The way in which [Chettiar]
was discharging his duties as a car salesman
in a competitive environment created by the
employer "increased his risk of falling on
this occasion and directly contributed to
cause his fall . . . [His] injury occurred

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because of the performance of his job duties
in a particular manner."
(Citation omitted.)
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). 	The
testimony of Chettiar and his co-worker, Brian Mulligan,
constitutes credible evidence to support the commission's
factual findings. 	Based upon these findings, the commission
could reasonably infer that Chettiar's employment-related need
to rush to reach a customer first in order to have the
opportunity to make a sale distracted him from focusing on the
stairs, which caused him to fall and resulted in his injuries.
"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).
Here, the evidence supported an inference that conditions of the
workplace either caused or contributed to Chettiar's injuries.
II.
"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). 	"Medical
evidence is not necessarily conclusive, but is subject to the

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commission's consideration and weighing." 	Hungerford Mechanical
Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 214
(1991).
In finding that Chettiar proved a causal relationship
between his September 7, 1995 injury by accident and his Charcot
foot condition, the commission found the medical records and
opinions of Dr. William P. Grant, a board certified foot and
ankle surgeon, to be persuasive. 	Dr. Grant testified in his
deposition that Chettiar suffers from a Charcot deformity in his
left foot, which is a condition where the bony and joint
structure is destroyed because neural damage causes the patient
to be unaware of injury to the area. 	Dr. Grant opined that
"[t]raumatic injuries . . . seem to be the prodrome that causes
the condition to manifest itself." 	Dr. Grant stated that
Charcot joint may develop after a minor slip and fall with only
overt signs of swelling. 	He opined that Chettiar's treatment
and disability for his Charcot foot were causally related to his
September 7, 1995 fall. 	The record established that Dr. Grant
was well aware of Chettiar's medical history, treatment, and his
fall at work. 	Dr. Grant's medical records and his deposition
testimony provide credible evidence to support the commission's
finding. 	Accordingly, we will not disturb that finding on
appeal.

For these reasons, we affirmthe conmssion's decision.

Af firned.