                                        COURT OF APPEALS OF VIRGINIA


            Present: Judges Frank, Huff and Senior Judge Coleman
PUBLISHED


            Argued at Richmond, Virginia


            VIRGINIA TREE HARVESTERS, INC. AND
             COMPANION PROPERTY &
             CASUALTY INSURANCE COMPANY
                                                                                  OPINION BY
            v.     Record No. 0600-13-2                                      JUDGE ROBERT P. FRANK
                                                                               NOVEMBER 12, 2013
            GEORGE W. SHELTON


                       FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                          Angela F. Gibbs (Midkiff, Muncie & Ross, P.C., on briefs), for
                          appellants.

                          Timothy J. Healy (Law Office of Timothy J. Healy, on brief), for
                          appellee.


                   Virginia Tree Harvesters, Inc. and Companion Property & Casualty Insurance Company

            (collectively employer), challenge the decision of the Workers’ Compensation Commission

            (commission) which found George W. Shelton (claimant), suffered a compensable injury by

            accident arising out of and in the course of his employment. Specifically, employer contends the

            accident was unexplained and the commission speculated as to the cause of the accident.

            Further, employer assigns error to the commission’s failure to accept the testimony of David

            Joslin as to the reason the rear window of the equipment was removed. For the reasons stated,

            we affirm the decision of the commission.

                                                   BACKGROUND

                   “[O]n appeal, we view the evidence in the light most favorable to the claimant, [as the

            party] who prevailed before the commission.” Basement Waterproofing & Drainage v. Beland,
43 Va. App. 352, 354, 597 S.E.2d 286, 287 (2004) (quoting Allen & Rocks, Inc. v. Briggs, 28

Va. App. 662, 672, 508 S.E.2d 335, 340 (1998)).

        On March 29, 2004, claimant, a logger, was operating a skidder, a machine used to lower

logs into trucks for removal from the site. Located at the rear of the skidder is a grabber

(grapple). Facing the front of the skidder, the operator must turn around to see the grabber. The

grabber was controlled by knobs that move back and forth or side to side. Different knobs

control extending the grabbers, opening them and letting them down and lifting the logs. On the

day of the accident, the grabbers were not working properly. The malfunctioning grabbers had

been responsible for damage to the window. As a result of the logs not being fully secured, the

logs would swing from side to side. Several days before the accident, the window was removed

because swinging logs scratched the window. Claimant testified there were blind spots when

looking through the rearview mirror. If the operator is looking to the rear while sitting in the

seat, he is able to see the arm of the grabber, but “you can’t see everything.”

        Claimant acknowledged he did not know what caused the accident, nor did he have any

recollection of the events of that day. There were no witnesses to the actual accident. Claimant

sustained injuries to his brain, right shoulder, lung, neck, scalp, and left rib.

        Willie Smith, claimant’s co-worker, testified that earlier on the morning of the accident,

he saw claimant operating the skidder. When Smith later approached the machine, he saw

claimant slumped over the steering wheel and a “tree was coming through the back of the skidder

- - the butt end of the tree” came through the back of the window. The tree was six to eight

inches wide. The window had been removed several days earlier because it was “all scratched

up” and one could not see through it.

        David Joslin, the owner of Virginia Tree Harvesters, was working with claimant on the

day of the accident and noticed the skidder had not moved “for a couple of minutes.” He saw

                                                  -2-
claimant unconscious and saw a tree that had penetrated the back window of the skidder. He

further indicated claimant had been operating the skidder prior to the discovery of claimant’s

unconscious body. Joslin indicated the rear window was removed because “it was just an old

piece of plastic and the visibility was weak.” He testified the glass was faded from sunlight and

was very opaque. He denied the grabber was not functioning properly.

       Joslin further testified that claimant had a history of sleeping on the job, causing Joslin to

believe claimant was sleeping when he first noticed claimant slumped over the wheel. Joslin

disputed claimant’s testimony that visibility was limited because of the “blind spots,” indicating

there was no problem with seeing the grabber and the logs. Joslin did not dispute that claimant

was hit by one of the logs.

       Joslin indicated in the employer’s First Report of Injury form, in describing how the

injury occurred, that “injured worker was backing up skidder and limb entered back of machine

and struck him in head, neck and chest.”

       In his Supplemental Answer to Interrogatories, Joslin stated that claimant was backing up

with the skidder in an improper manner and that he was not looking behind him. He testified

that claimant “continued to reverse into the pile, apparently attempting to force the log onto it.

In doing so, the log wedged at the bottom, slipped through the grapples, continuing upward until

it entered the cabin . . . .” At the hearing, Joslin acknowledged that he had recently sworn, under

oath, to the “accuracy of all of these answers to interrogatories.”1




       1
         Joslin challenged only the accuracy of the interrogatory answer that said the tree was
twelve to fourteen inches in diameter.

                                                -3-
                                PROCEDURAL BACKGROUND

       Claimant filed a claim for benefits on March 28, 2006, alleging an injury by accident on

March 29, 2004. Employer defended, among other grounds, that claimant sustained an

unexplained accident.

       By review opinion dated April 9, 2008, the full commission found claimant’s accident

was not unexplained and that it was attributable to a risk of employment and thus compensable.

The commission reversed the deputy commissioner’s opinion and remanded the matter to the

deputy “for a finding regarding disability and entitlement to benefits.”

       Following that opinion, an appeal was taken to this Court. This Court found the April 9,

2008 opinion was not an appealable final decision of the commission and thereby dismissed the

appeal without prejudice.

       The deputy then conducted the remand hearing and in its opinion of April 18, 2012,

found claimant was entitled to temporary partial disability compensation.

       Both claimant and employer sought review by the full commission.

       The commission held that its April 9, 2008 opinion finding that claimant’s accident arose

out of and in the course of employment was the law of the case and not subject to further

decision.2 The commission then concluded, “Whether the law of the case doctrine is binding on

us or not, we find no purpose would be served by reconsidering our prior decision in this matter.

For the reasons stated in our prior opinion, we summarily adopt and affirm our finding that the



       2
         Pursuant to the “law of the case” doctrine, when a party fails to challenge a decision
rendered by a court at one stage of litigation, that party is deemed to have waived his or her right
to challenge that decision during later stages of the “same litigation.” Miller-Jenkins v. Miller-
Jenkins, 276 Va. 19, 26, 661 S.E.2d 822, 826 (2008). The “law of the case” doctrine applies
only in the case of a final, unappealed order. See Norris v. Mitchell, 255 Va. 235, 240, 495
S.E.2d 809, 812 (1998) (holding that when an unappealed decree becomes “the final order . . .
and the law of this case . . . we treat the order as correctly entered”). In this case, we need not
decide whether the doctrine applies, because the commission adopted its earlier ruling.
                                                   -4-
claimant’s accident arose out of his employment.” The commission then addressed claimant’s

disability award, which is not part of this appeal.

       In its original April 9, 2008 review opinion, the commission concluded:

               The claimant does not recall what happened to cause the accident,
               but there is direct as well as circumstantial evidence to meet his
               burden of proof. There is evidence from Mr. Joslin and Mr. Smith
               that the claimant was operating a skidder at the time of the
               accident. There is direct evidence that a tree limb entered the cab
               of the skidder and struck the claimant. The owner had the tree cut
               and removed to extract the claimant. The window through which
               the tree entered had been removed. There is evidence that the
               window was removed because the trees were hitting and scratching
               the Plexiglass. Mr. Joslin’s testimony is not persuasive that the
               window was merely faded. There is evidence that the tree caused
               significant injuries to the claimant.

               The conditions under which the work was performed required the
               claimant to move trees which came into contact with the window
               of the cab. Being hit by a tree is a natural incident of this type of
               work. It is certainly a danger peculiar to the work and not common
               in the neighborhood. It was logical and apparent to everyone, even
               Mr. Joslin, that the accident arose out of a condition of the
               claimant’s employment as a logger.

               The issue then is whether the injury can be traced to the
               employment as the proximate cause of the accident.
               Circumstantial evidence can prove a fact. The claimant can prove
               his case when he does not remember what happened as a result of a
               brain injury. E.g, Griffin v. City of Waynesboro, VWC File No.
               229-85-61 (May 11, 2007).

       The dissent opined the accident was unexplained, concluding “it is equally likely that the

claimant fell asleep and lost control of the machine, causing the log to crash into the machine as

it is that the log fell through the window as the claimant attempted to load it.”

       This appeal follows.

                                            ANALYSIS

       Employer contends that claimant’s accident did not arise out of employment because the

accident was unexplained. Employer calls the incident a “classic unexplained accident case” and


                                                -5-
argues that claimant did not prove how his injury occurred. Employer correctly notes that

claimant had no recollection of the incident and did not know the cause of the accident.

However, our analysis does not end there.

          On appeal, the commission’s decision that an accident arose out of the claimant’s

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). However, 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, 7, 622 S.E.2d

227, 230 (2005).

          The fact that there may be contrary evidence in the record is of no consequence, as long

as credible evidence supports the commission’s finding. Russell Loungewear v. Gray, 2

Va. App. 90, 95, 341 S.E.2d 824, 826 (1986). Instead, “we are bound by these findings of fact as

long as ‘there was credible evidence presented such that a reasonable mind could conclude that

the fact in issue was proved.’” Perry v. Delisle, 46 Va. App. 57, 67, 615 S.E.2d 492, 497 (2005)

(quoting Westmoreland Coal Co. v. Campbell, 7 Va. App. 217, 222, 372 S.E.2d 411, 415 (1988)

(emphasis in original)). Furthermore, “[w]here 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 School Board, 7 Va. App. 398, 404, 374 S.E.2d 695, 698

(1988).

          On appeal, we defer to the commission’s assessment of the “probative weight” of the

proffered evidence, and we recognize that the commission “is free to adopt that view ‘which is

most consistent with reason and justice.’” Georgia-Pac. Corp. v. Robinson, 32 Va. App. 1, 5,

526 S.E.2d 267, 269 (2000) (quoting C.D.S. Const. Servs. v. Petrock, 218 Va. 1064, 1070, 243

S.E.2d 236, 240 (1978)). Moreover, “[t]he commission, like any other fact finder, may consider

                                                 -6-
both direct and circumstantial evidence in its disposition of a claim. Thus, the commission may

properly consider all factual evidence, from whatever source, whether or not a condition of the

workplace caused the injury.” VFP, Inc. v. Shepherd, 39 Va. App. 289, 293, 572 S.E.2d 510,

512 (2002). This is accomplished when the “circumstantial evidence . . . takes the question

beyond surmise or conjecture . . . .” Van Geuder v. Commonwealth, 192 Va. 548, 557, 65

S.E.2d 565, 571 (1951).

       Under our workers’ compensation statute, “[i]njury means only injury by accident arising

out of and in the course of the employment.” Code § 65.2-101. As such, in order for an injury to

be compensable under the Workers’ Compensation Act, the claimant must prove three elements

by a preponderance of the evidence: “(1) that the injury was caused by an accident; (2) that the

injury was sustained in the course of the employment; and (3) that the injury arose out of the

employment.” Southland Corp. v. Parson, 1 Va. App. 281, 283-84, 338 S.E.2d 162, 163 (1985).

See also PYA/Monarch v. Harris, 22 Va. App. 215, 221, 468 S.E.2d 688, 691 (1996) (“The

concepts ‘arising out of’ and ‘in the course of’ employment are not synonymous and both

conditions must be proved before compensation will be awarded.” (quoting Marketing Profiles,

Inc. v. Hill, 17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993) (en banc))).

       In this case, there is no dispute that an accident occurred and that claimant’s injury was

sustained in the course of the employment. The issue is whether this accident and resulting

injury arose out of claimant's employment.

       The mere fact that an employee was injured at work is not enough to show that his injury

arose out of his employment. County of Chesterfield v. Johnson, 237 Va. 180, 185, 376 S.E.2d

73, 75 (1989). Instead, the employee must show that his injury resulted from an “actual risk” of

the employment. Id. This requirement can only be met “if there is a causal connection between

the claimant’s injury and the conditions under which the employer requires the work to be

                                               -7-
performed.” R.T. Investments v. Johns, 228 Va. 249, 252-53, 321 S.E.2d 287, 289 (1984).

However, “[w]hen a claimant has no memory of how the accident occurred and there are no

witnesses to the accident, that claimant often cannot fulfill his or her burden to show this vital

causal nexus between the employment and the injury.” City of Waynesboro v. Griffin, 51

Va. App. 308, 314, 657 S.E.2d 782, 785 (2008) (citing Mem’l Hosp. v. Hairston, 2 Va. App. 677,

679, 347 S.E.2d 527, 527-28 (1986), which reversed an award of benefits when claimant did not

remember how she fell, there were no witnesses, and claimant fell on a floor which had no

conditions that could have caused her fall).

       However, the lack of direct evidence either from the claimant’s memory or an eyewitness

account will not, by itself, preclude an award of benefits. “On the contrary, the commission may

find an explanation for an accident based on circumstantial evidence, when that evidence

‘allow[s] an inference that the claimant suffered an injury by accident arising out of . . . his

employment.’” Id. at 314-15, 657 S.E.2d at 785 (quoting Marketing Profiles, 17 Va. App. at

433, 437 S.E.2d at 728). As we have already noted, “the commission may rely upon

circumstantial evidence in finding that an injury was caused by a particular accident,” Marriott

Int’l v. Carter, 34 Va. App. 209, 215, 539 S.E.2d 738, 741 (2001), and once the circumstantial

evidence “‘takes the question beyond surmise or conjecture,’” it will support the commission’s

inference as to the cause of the claimant’s injury, VFP, Inc., 39 Va. App. at 293, 572 S.E.2d at

512 (quoting Van Geuder, 192 Va. at 557, 65 S.E.2d at 570-71).

       In Griffin, the claimant, an equipment operator, drove a front-end loader onto a flatbed

trailer. Griffin, 51 Va. App. at 311, 657 S.E.2d at 783. The trailer was three and a 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, claimant began to climb out of the relatively

small cab of the loader. As he climbed out, he rocked his body forward to make sure that he had

                                                 -8-
applied the brake in the loader. At some point after that, he fell and suffered multiple injuries.

There were no witnesses to the event. Id. The commission made specific findings based on

direct and circumstantial evidence and the logical inferences drawn from that evidence to support

its conclusion that the claimant’s fall arose out of his employment. The commission found that

he was in an awkward position attempting to get out of a front-end loader while also attempting

to lean in and check the brakes. It also found that he was descending from the considerable

height of six and a half feet down a worn and rusted step. The commission made the reasonable

inference from these facts that the claimant’s accident arose out of his employment because he

was exposed to a risk in his employment -- executing an awkward maneuver in order to get out

of the cab and descending from a considerable height on a worn, rusted step -- to which he would

not equally be exposed in his ordinary, non-work life. Thus, the accident was not unexplained.

Id. at 316, 657 S.E.2d at 785-86. We found that credible evidence and reasonable inferences

drawn from the evidence supported the commission’s findings, and there was sufficient evidence

from which it could find that the claimant’s injuries were attributable to a risk of employment

and thus compensable. Id. at 317, 657 S.E.2d at 786.

       Employer cites Lysable Transport, Inc. v. Patton, 57 Va. App. 408, 702 S.E.2d 596

(2010), for the proposition that multiple potential causes of an accident cannot support a finding

that the accident happened in either particular way. Employer contends claimant’s accident

could have had a number of causes – for example, claimant could have fallen asleep, engaged in

horseplay, or had been distracted.

       In Lysable, the commission found that the claimant either fell asleep or was distracted by

his load and ran off the road. We reversed the award of benefits, rejecting the mutually

exclusive explanations of the accident and finding that “the commission’s disjunctive finding

does not establish how and why the accident happened.” Id. at 419, 702 S.E.2d at 601. In the

                                                -9-
present case, however, the commission did not give two mutually exclusive explanations.

Rather, the commission found the specific cause of the accident.

        There is no evidence in the record of horseplay, or that claimant was distracted. In fact,

Joslin’s interrogatory answers indicated that claimant was awake and operating the skidder at the

time of the accident. The fact finder could properly infer he was not asleep.

        We further reject employer’s contention that “human error” was the cause of this

claimant’s accident due to improper operation of the skidder. Negligence is not a factor in our

analysis. See Uninsured Employer’s Fund v. Keppel, 1 Va. App. 162, 165, 335 S.E.2d 851, 852

(1985) (“Negligence, regardless how gross, does not bar a recovery for workers’ compensation

benefits.”).

        Here, the commission did not speculate as to the cause of the accident, nor was the

accident unexplained. While claimant had no recollection of the accident or its cause,

circumstantial evidence clearly proved the accident arose while claimant was operating the

skidder. It is entirely reasonable to conclude that logging is a dangerous enterprise. Before the

accident, the grabbers on the skidder were not working properly, diminishing claimant’s control

over the logs. The skidder’s plexiglass window, already scratched by logs striking the window,

had been removed several days earlier. This further increased the hazard to the skidder’s

operator, as there was nothing to stop the moving logs from entering the skidder’s cab.

        Employer maintains PYA/Monarch, 22 Va. App. 215, 468 S.E.2d 688, is analogous as an

“unexplained injury” case and thus controls the outcome of this case. We disagree. There,

claimant was climbing down from his truck cab. He reached for the “grab bar” and did not

remember anything else. We rejected the commission’s finding that the icy condition and design

of the truck cab caused claimant’s fall, finding no evidence supported this conclusion. Id. at 224,

468 S.E.2d at 692. There was no causal link between claimant’s employment and the fall.

                                               - 10 -
       Further, in Liberty Mutual Ins. Corp. v. Herndon, 59 Va. App. 544, 721 S.E.2d 32 (2012),

we held that characterizing the claimant’s accident as an “unexplained” incident and asserting

that the accident could have occurred for many different reasons “misconstrues the focus of our

inquiry. The key focus is not the relationship between the injury and its cause but rather the

relationship between the injury and the employment.” Id. at 560, 721 S.E.2d at 40.

       Liberty Mutual is more factually similar to the present case. There, the claimant was

working on a carpentry framing crew when, while carrying wood, he fell through a hole on the

second floor of an unfinished building. Id. at 551, 721 S.E.2d at 35. Similar to the subject case

and to PYA/Monarch, the claimant did not remember the actual harmful incident. Id. at 561, 721

S.E.2d at 43. Contrary to PYA/Monarch, however, there was evidence to support the conclusion

that the fall “was a result of the work environment” and that “the fall from [the] height caused his

injuries.” Id. at 562, 721 S.E.2d at 41. The record indicated that the claimant was found directly

beneath the hole, his injuries were consistent with a fall from a great height, and several

co-workers claimed that “they heard something hit” at the time of the fall. Id. at 562, 721 S.E.2d

at 41. As such, the evidence supported the commission’s finding that claimant’s injuries “arose

out of” his employment. Id.

       The subject case is also analogous to Beland, 43 Va. App. 352, 597 S.E.2d 286. There,

claimant’s job involved applying tar and sealant to holes in a roof while standing on a portion of

a ladder. Claimant carried a 20-30 pound bucket in one hand and a glove he used to apply the tar

on the other hand, preventing claimant from holding onto the ladder. Claimant did not recall the

fall. We concluded claimant’s situation was “uniquely dangerous.” Id. at 361, 597 S.E.2d at

290. Similarly, we concluded that the workplace in Liberty Mutual was also “uniquely

dangerous” because the claimant fell from a high place where the claimant’s “employment

required [him] to be.” Liberty Mutual, 59 Va. App. at 559, 721 S.E.2d at 39. Unlike the

                                               - 11 -
situation in PYA/Monarch, but analogous to the facts in Beland and Liberty Mutual, the claimant

here was in a uniquely dangerous position at the time of his injury.

       In this case, the commission properly relied on circumstantial evidence to conclude

claimant’s injury arose out of his employment and happened while he was on the skidder.

Claimant’s co-worker, Willie Smith, testified claimant had been operating the skidder earlier in

the morning. When Smith approached the machine after the accident, he saw claimant

unconscious, slumped over the steering wheel. A tree had penetrated the back window opening

of the skidder. David Joslin, claimant’s boss and the owner of Virginia Tree Harvesters,

confirmed that aspect of Smith’s testimony. Both men indicated the rear window had been

removed several days earlier.

       Common sense tells us the logging business is a dangerous one. Claimant’s work

required him to move logs by grabbing the logs and placing them in a truck by use of the

grabbers on a skidder. The plexiglass window of the skidder had been removed.3 Further, the

grabber was not functioning properly, resulting in the logs swinging from side to side. The logs

were approximately six to eight inches in diameter. The obvious hazard is that a tree might not

be fully controlled. The log could then penetrate the skidder’s cab. That hazard is evidenced by

the fact that the plexiglass had scratches and gouges where logs had previously hit the window.

       Indeed, on the day of the accident, that hazard was realized when an unsecured limb

struck claimant, resulting in injuries to his brain, right shoulder, lung, neck, scalp, and ribs.




       3
          The fact finder could reasonably infer that plexiglass prevented logs from entering the
skidder’s cab. While there were scratches and gouges in the plexiglass, no testimony indicated
that errant logs had penetrated the plexiglass.
                                                - 12 -
                                       CONCLUSION

       We conclude that the conditions of claimant’s workplace caused his injuries. His

employment exposed him to the particular danger from which he was injured. His injury was a

natural incident of his work.

       We therefore affirm the commission’s judgment.

                                                                                     Affirmed.




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