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COURT OF APPEALS OF VIRGINIA

Present: Judges McClanahan, Petty and Beales Argued at Salem, Virginia

CITY OF WAYNESBORO AND VIRGINIA MUNICIPAL GROUP SELF-INSURANCE ASSOCIATION v. Record No. 1347-07-3 OPINION BY JUDGE WILLIAM G. PETTY MARCH 4, 2008

DEWAYNE W. GRIFFIN

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Ralph L. Whitt, Jr. (Whitt & Del Bueno, P.C., on briefs), for appellants. Caleb M. Echterling (Ritchie Law Firm, P.L.C., on brief), for appellee.

The City of Waynesboro and the Virginia Municipal Group Self-Insurance Association (collectively referred to as employer) challenge an award of workers' compensation benefits. Employer argues that the commission erred by holding that Dewayne W. Griffin suffered an injury by accident although the claimant cannot remember how he was injured. We disagree with employer and affirm the commission. I. BACKGROUND We construe the evidence on appeal in the light most favorable to the claimant as the party prevailing below. Whitlock v. Whitlock Mechanical/Check Services, Inc., 25 Va. App. 470, 479, 489 S.E.2d 687, 692 (1997). Griffin worked for the employer as a landfill technician and equipment operator at the time of the accident. He testified that he was about 5'8" or 5'9" tall and weighed about 250 to 260 pounds. On the day of the accident, Griffin drove a front-end loader up ramps onto a flatbed trailer. The flatbed trailer is three and one-half feet above the

ground, while the front-end loader cab was an additional three feet above the ground. After he parked the loader on top of the trailer, he began to climb out of the relatively small cab of the loader. 1 Griffin testified that he placed his left foot onto the step outside the loader, with his back facing outward. He brought his right foot down to the step, but does not remember setting his right foot onto the step. Instead, he rocked his body forward to make sure that he had applied the brake in the loader. At some point after that, Griffin fell and suffered a concussion, loss of consciousness, neck and back pain, and injuries to his right rib, shoulder, and palm. Griffin testified that he did not recall actually placing a foot on the flatbed trailer and does not know when he fell or why. 2 There were no witnesses to the event. The deputy commissioner, relying on Basement Waterproofing v. Beland, 43 Va. App. 352, 597 S.E.2d 286 (2004), found that given the surrounding circumstances of the accident, he could infer that Griffin's fall and resulting injury arose from a risk of his employment: "While exiting the cab, which had a worn and rusty step, the claimant apparently lost his grip or his balance and fell to the ground. Under these specific circumstances . . . the claimant's work environment and work-related activities caused his injuries." The full commission affirmed the deputy commissioner's award of benefits for the same reasons, and this appeal followed.

Griffin submitted photographs of the trailer and front-end loader as well as the step on which he descended from the front-end loader's cab. The pictures also demonstrated Griffin's size compared to the door of the front-end loader. Employer argues on appeal that Griffin's statements to investigators, his employers, and at court were inconsistent and therefore incredible. Both the deputy commissioner and the full commission found Griffin to be credible. See Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987) (Credibility determinations are within the commission's exclusive purview.). -22

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II. ANALYSIS Employer submitted four questions for our consideration in this case. However, taken as a whole, they present one issue: whether the commission impermissibly awarded benefits for an unexplained accident. A. Standard of Review Our standard of review in this case is well settled. The commission's decision that an accident arises out of the employment is a mixed question of law and fact and is therefore reviewable on appeal. Blaustein v. Mitre, 36 Va. App. 344, 348, 550 S.E.2d 336, 338 (2001). By statute, the commission's factual findings are conclusive and binding on this Court when those findings are based on credible evidence. K & K Repairs & Constr. v. Endicott, 47 Va. App. 1, 6, 622 S.E.2d 227, 230 (2005) (citing Code

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