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COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and McClanahan Argued at Alexandria, Virginia

BASEMENT WATERPROOFING & DRAINAGE AND COMMONWEALTH CONTRACTORS GROUP SELF-INSURED, LANDIN, INC. v. Record No. 3171-03-4 OPINION BY CHIEF JUDGE JOHANNA L. FITZPATRICK JUNE 15, 2004

JOHN ERIC BELAND

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION R. Ferrell Newman (Thompson, Smithers, Newman, Wade & Childress, on brief), for appellants. Andrew S. Kasmer (James I. McAuley; Chasen & Boscolo, Chtd., on brief), for appellee.

Basement Waterproofing & Drainage (employer) contends the Workers' Compensation Commission (commission) erred in awarding medical and temporary total benefits to John Eric Beland (claimant). The sole issue on appeal is whether credible evidence supports the commission's finding that claimant's injury arose out of his employment. We affirm the commission. I. BACKGROUND "On appeal, we view the evidence in the light most favorable to the claimant, who prevailed before the commission." Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d 335, 340 (1998) (citations omitted). On September 30, 2002, claimant was working inside a pre-cast concrete stoop that measured four feet wide by ten to fifteen feet long and had an eight-foot high sub wall. His job was to apply tar and sealant to holes while standing on a portion of ladder that had been dropped into a hole under the stoop. He held a bucket of tar that

weighed between 20 and 30 pounds in one hand and wore a rubber glove on the other which he used to smear tar on the holes in the walls. He could not hold onto the ladder for support because both hands were occupied by his work tasks. Claimant testified: I was tarring the wall, and I was almost done, and I was coming up the ladder. I was almost to the top of the ladder. I had a five gallon bucket in my hand, got the tar glove in the one hand, and I'm kind of like

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