Opinion
Record No. 1967-93-4
Decided: June 28, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
Ralph L. Whitt (S. Vernon Priddy, III; Sands, Anderson, Marks Miller, on briefs), for appellants.
Michael A. Kernbach (Cohen, Dunn Sinclair, P.C., on brief), for appellee.
Present: Judges Baker, Benton, and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The Workers' Compensation Commission entered an award on behalf of Granville M. Herring for temporary total disability benefits. The Zeropack Company appeals from that award and contends that the commission erred (1) in finding that Herring proved by credible evidence an injury by accident arising out of his employment, and (2) in ignoring testimony that Herring's injuries were inconsistent with the hypothesis that he was conscious when he fell. We affirm the commission's award.
I.
On appeal from an award by the commission in favor of an employee, we must view the evidence in the light most favorable to the employee, the prevailing party. Manassas Ice Fuel Co. v. Ferrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991). So viewed, the evidence proved that when the incident giving rise to the claim occurred, Herring was seventy-three years of age and employed by Zeropack. On November 11, 1991, at 9:00 p.m., Herring went outside the Zeropack plant at an authorized time to eat his supper in his car. After finishing his supper, Herring returned to the plant while snow was falling, walked up a ramp, and entered the building through a back entrance. The area immediately inside the entrance contained overhead pipes that carried liquid nitrogen and dripped water. The concrete floor in that area also contained grease that came from tow motors. A large freezer was also near the entrance, and it frequently caused moisture to accumulate on the floor. Herring, who was wearing rubber soled shoes when he entered the plant, testified that he slipped and fell.
Carolyn Massie, one of Zeropack's employees, discovered Herring unconscious on the floor near the back entrance. She testified that Herring was "laying in a puddle of water." Although she did not see Herring fall down, Massie testified that she had also just finished her supper and was "only a few minutes" behind Herring.
Charles Funk, a supervisory employee, testified that Herring was on his back near the dampness on the floor by the freezer door. Herring's feet were facing the direction of the entrance.
A member of the rescue squad medical team testified that when the team arrived at Zeropack, they discovered Herring in the same position described by Massie and Funk. He testified that Herring was lying in water on the floor that appeared to extend from his mid-calf to his feet. He also testified that Herring's clothing was wet.
Herring suffered a contusion above the left eye and a subdural hematoma with a large skull fracture at or near the left ear. Herring also suffered brain injuries that impaired his mental functioning. In the opinion of Dr. John E. McAllister, who treated Herring after the accident, Herring's injuries were consistent with a slip and fall. Dr. McAllister stated that no cardiac or pulmonary condition played a role in the injury. Dr. McAllister also gave the following explanation of how Herring's injuries could all be the result of a single injury:
If you hit the right side of your head and you have enough blood under the scalp, called the galea, you are going to get a swollen, contused eye, plus the skull fracture, plus the contusion to the scalp on the left side of the head. It can all be one injury.
The commission made findings from the evidence and drew inferences from the evidence as follows:
[Herring] was found on a slick concrete floor with his lower legs in or near a puddle of water. In addition, the floor, by the unrebutted evidence, also had some grease on it from mechanized equipment. [Herring's] testimony that it was snowing that night is unrebutted. Therefore, there are two substances in evidence which could have caused the floor to be slick, i.e., grease, water, or a combination of the two. If it was snowing, as [Herring] described, the possibility that his boots were wet when he entered the building is also raised.
We find from the record that [Herring's] evidence sufficiently establishes that his fall was the result of a slip on the concrete floor which had been made slippery either by water, grease, or a combination of the two. His injury was, therefore, a risk of the employment.
The commission further found no evidence that Herring fainted or was assaulted.
II.
"On appeal, the . . . [c]ommission's findings of fact are conclusive and binding on the appellate court if based on credible evidence." Jules Hairstylists, Inc. v. Galanes, 1 Va. App. 64, 68, 334 S.E.2d 592, 595 (1985). "The fact that contrary evidence may be found in the record is of no consequence if credible evidence supports the commission's findings." Farrar, 13 Va. App. at 229, 409 S.E.2d at 826.
Zeropack argues that because no one saw Herring fall and because no one testified that the water or grease caused Herring's fall, the commission improperly drew inferences upon inferences to reach its decision. We disagree.
Although some persons testified that the area around Herring was dry, the commission had ample evidence from other witnesses that Herring fell in an area where water and grease were on the floor and that Herring was found lying in a pool of water. Moreover, the commission as fact finder is permitted to draw reasonable inferences from the evidence in the record. Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510-11 (1983). Based upon Herring's testimony and the other credible evidence that established the conditions that existed when Herring was found on the floor, the evidence and the inferences that the commission drew from that evidence support the commission's findings and the award. Id.
III.
It is fundamental that "[a] question raised by conflicting medical opinions is a question of fact." Island Creek Coal Co. v. Honaker, 9 Va. App. 336, 340, 388 S.E.2d 271, 273 (1990). Where there was a conflict in the medical evidence, "[i]t was peculiarly within the province of the commission to decide what [medical] evidence, if credible, was entitled to greater weight." McPeek v. P.W. W. Coal Co., 210 Va. 185, 188, 169 S.E.2d 443, 445 (1969).
The record contained testimony from the treating physician, Dr. McAllister, that related Herring's injuries to the fall. Although another physician, who did not examine Herring, testified that based upon his review of the medical records Herring's injuries were not indicative of a slip and fall, the commission was entitled to give greater weight to the evidence from the treating physician. Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986). The commission did not err in rejecting speculative medical evidence of alternative theories of causes of Herring's injuries.
Accordingly, we affirm the commission's award.
Affirmed.