                    COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia


ROSALYN MAYFIELD

v.         Record No. 1826-95-1          MEMORANDUM OPINION *
                                      BY JUDGE JOSEPH E. BAKER
THE SOUTHLAND CORPORATION                   APRIL 9, 1996
and
AMERICAN PROTECTION INSURANCE COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           Karen M. Rye (Melody L. Cockrell, on brief),
           for appellant.

           Timothy P. Murphy (William W. Nexsen;
           Stackhouse, Smith & Nexsen, on brief), for
           appellees.



     Rosalyn Mayfield (claimant) appeals from a decision of the

Workers' Compensation Commission (commission) that denied her

claim for compensation benefits for injuries she contends she

received in an accident while in the employ of The Southland

Corporation (employer).   The deputy commissioner ruled in her

favor; however, on review by the full commission, it concluded

that "a preponderance of the evidence fails to support claimant's

claim," and the opinion of the deputy was reversed and the

recommended award vacated.

     Although claimant frames four issues for our decision, all

are determined by whether claimant, as a matter of law, met her

burden to prove she received compensable injuries arising out of
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
an accident that was work related.

     Claimant's principal argument is that the parties agreed

that "an accident had occurred arising out of and in the course

of [claimant's] employment" 1 but concedes that employer's defense

that an injury did not occur in that accident remained "intact

despite the stipulation" and "that [the] stipulation

. . . does not jeopardize the defenses otherwise put forth by

Employer."    Employer concedes that it defended this "claim on the

grounds that [claimant] was not injured as a result of the
incident."    However, employer contends a stipulation that an

"incident" occurred is not a concession that an "accident"

occurred. 2   As we view the commission's opinion, its decision may

be read to say that if an accident occurred, claimant failed to

meet her burden to show that a compensable injury resulted

therefrom.

     In its opinion, the commission stated that because there is

a "significant legal distinction" between the words "incident"

and "accident," the burden remains on claimant to show by the

record that an accident within the meaning of the Workers'

Compensation Act (Act) "in fact occurred, and the said accident
     1
      That statement appears to be the understanding of the
deputy commissioner whose opinion states that the parties "agreed
that an accident took place within the course of the claimant's
employment but denies that the claimant was injured in the
accident."
     2
      Employer's assertion that it agreed only that an "incident"
occurred pales in the face of the statement made by the deputy in
its opinion.



                                - 2 -
arose out of and during the course of employment with this

employer."    For the purposes of our opinion, we find that the

record adequately establishes that this was an accident within

the meaning of the Act that occurred during the course of

claimant's employment.       The issue, therefore, is whether the

record supports the commission's finding that the record did not

contain credible evidence sufficient to meet claimant's burden to

show that she suffered a compensable injury as a result of that

accident.
     The following statements taken from the commission's opinion

disclose that its findings of fact, based upon the lack of

credibility of claimant's proof that her injuries were received

in the November 26, 1993 accident, are supported by the record:
            As this case is before the Commission on
          the claimant's claim, she has the burden of
          proving by a preponderance of the evidence
          that she suffered injury by accident that
          arose out of and during the course of the
          employment with this employer. That burden
          is one of persuasion. It is not sufficient
          to show that an accident occurred without
          also showing that injury resulted from that
          accident.
            [T]he Commission has traditionally not
          required strict formality and unwavering
          adherence to evidentiary rules. However, the
          Commission has insisted that the record taken
          as a whole must establish in each particular
          case that an accident defined in the Act in
          fact did occur, and that injury resulted from
          that accident.

                    *    *      *    *      *   *   *

               Defense Exhibit 2 was completed by three
             separate individuals; claimant, M. Mallory,
             and Dr. Woods, and the same question was
             asked to all three individuals, and that



                                    - 3 -
          question was whether the disability arose
          from injury or illness arising out of the
          employment with this employer, and all three
          individuals stated "no" it did not. The
          position taken by claimant in Defense Exhibit
          2 is contradictory of the position she takes
          before the Commission. Although we may
          overlook minor inconsistencies in the
          evidence considered in its entirety, the
          inconsistencies in this record raise
          substantial credibility questions and call
          into doubt the testimony given by claimant.

            The same inconsistencies likewise detract
          from the medical opinions of record. . . .
          [T]hese medical opinions lack the probative
          value and weight necessary to establish the
          requisite causal connection between the
          incident claimant describes and the injury
          she claims.

     Contrary to claimant's assertions, the commission's opinion

was based upon its finding that claimant's medical evidence was

not sufficiently credible to convince the fact finder that

claimant had sustained a compensable injury that arose from the

collision/accident that occurred on November 26, 1993.

     "'Generally, the full commission remains free to make

different findings of fact than those made by the deputy

commissioner.'"   Virginia Dep't. of State Police v. Dean, 16 Va.

App. 254, 257, 430 S.E.2d 550, 551 (1993) (quoting Williams v.

Auto Brokers, 6 Va. App. 570, 573, 370 S.E.2d 321, 323 (1988)).

"We must view the evidence in the light most favorable to the

employer, as the prevailing party below, and '[t]he fact that

contrary evidence may be found in the record is of no consequence

if credible evidence supports the commission's finding.'

Manassas, 13 Va. App. at 229, 409 S.E.2d at 826 (citations



                               - 4 -
omitted)."    Bean v. Hungerford Mechanical Corp., 16 Va. App. 183,

186, 428 S.E.2d 762, 764 (1993).   "A question raised by

conflicting medical opinion is a question of fact."    Commonwealth

v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986)

(citations omitted); see also Cafaro Constr. Co. v. Strother, 15

Va. App. 656, 660, 426 S.E.2d 489, 491 (1993); City of Norfolk v.

Lillard, 15 Va. App. 424, 429, 424 S.E.2d 243, 246 (1992); Island

Creek Coal Co. v. Honaker, 9 Va. App. 336, 340, 388 S.E.2d 271,

273 (1990).   "Generally, a ruling by the commission that the

claimant's evidence is insufficient to prove that an injury was

causally related to the employment must be upheld on appeal

because the question is one of causation, which is a factual

determination frequently turning upon the weight and credibility

accorded to the evidence."    Stancill v. Ford Motor Co., 15 Va.

App. 54, 57, 421 S.E.2d 872, 874 (1992) (citing Code

§ 65.2-706(A)); Island Creek Coal Co. v. Breeding, 6 Va. App. 1,

12, 365 S.E.2d 782, 788 (1988).    "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) (citing Code § 65.1-98, now Code § 65.2-706); see

also American Filtrona Co. v. Hanford, 16 Va. App. 159, 165, 428

S.E.2d 511, 515 (1993); Lillard, 15 Va. App. at 430, 424 S.E.2d

at 246 (1992).   "Where reasonable inferences may be drawn from

the evidence in support of the commission's factual findings,



                                - 5 -
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) (citation omitted); see also Chase Packaging Corp. v.

Dorsey, 15 Va. App. 248, 251, 421 S.E.2d 907, 909 (1992).    "The

commission made the initial and only resolution of the factual

discrepancy [in the conflicting testimony]. . . .   We are bound

by that factual finding."   Grove v. Allied Signal, Inc., 15 Va.

App. 17, 19, 421 S.E.2d, 32, 33 (1992).
     We cannot say that the commission's finding was plainly

wrong or that the record does not support its decision.

Accordingly, in response to the issues stated by claimant, we

find that we are not required to reverse the commission's finding

as to whether an accident occurred; that considered in its

entirety, the record does not require that we remand this case

for further consideration by the commission; and that the

commission's decision is supported by credible evidence and is

affirmed.
                                                          Affirmed.




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