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McKellar v. Northrop Grumman Shipbuilding Inc.

Court of Appeals of Virginia

May 27, 2014

PRESTON McKELLAR
v.
NORTHROP GRUMMAN SHIPBUILDING INC., HUNTINGTON INGALLS INDUSTRIES, INCORPORATED AND HUNTINGTON INGALLS, INCORPORATED

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.

Matthew H. Kraft (Matthew H. Kraft, P.L.C., on brief), for appellant.

Benjamin M. Mason (Mason, Mason, Walker, & Hedrick, P.C., on brief), for appellees.

Present: Judges McCullough, Huff and Senior Judge Haley. OPINION BY JUDGE GLEN A. HUFF.

OPINION

Page 105

[63 Va.App. 450] GLEN A. HUFF, JUDGE.

Preston McKellar (" claimant" ) appeals a decision of the Virginia Workers' Compensation Commission (" commission" ) finding that claimant was not entitled to temporary total disability benefits. On appeal, claimant asserts that the commission erred in finding that claimant's retirement from his employment with Northrop Grumman Shipbuilding, Inc., Huntington Ingalls Indus., Inc., and Huntington Ingalls, Inc. (collectively " employer" or " appellees" ) precludes an award of temporary total disability benefits -- even where he was in a no work status and medically unable to work during the period of benefits claimed. For the following reasons, this Court affirms the commission's ruling.

[63 Va.App. 451] I. BACKGROUND

On appeals from the commission, " we review the evidence in the light most favorable to the prevailing party." R.G. Moore Bldg. Corp. v. Mullins, 10 Va.App. 211, 212, 390 S.E.2d 788, 788, 6 Va. Law Rep. 1997 (1990). If supported by credible evidence, the commission's factual findings are " binding on appeal," Tomes v. James City Fire, 39 Va.App. 424, 430, 573 S.E.2d 312, 315 (2002), " even though there is evidence in the record to support a contrary finding," Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va.App. 276, 279, 348 S.E.2d 876, 877, 3 Va. Law Rep. 856 (1986) (citing Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510-11 (1983)). When " determining whether credible evidence exists," we cannot " retry the facts, reweigh the preponderance of the evidence, or make [our] own determination of the credibility of the witnesses." Wagner Enters. v. Brooks, 12 Va.App. 890, 894, 407 S.E.2d 32, 35, 8 Va. Law Rep. 213 (1991) (citing Jules Hairstylists, Inc. v. Galanes, 1 Va.App. 64, 69, 334 S.E.2d 592, 595 (1985)). In addition, the commission's " conclusions upon conflicting inferences, legitimately drawn from proven facts, are equally binding on appeal." Watkins v. Halco Eng'g, Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983). So viewed, the evidence is as follows.

Claimant worked for employer as a structural welder from May 1968 until his retirement on May 1, 2010. Claimant described his job as " very physically demanding." His work involved welding component parts together that had been put in place by ship-fitters. Moreover, claimant testified that at times he had to lift objects that weighed up to 75 pounds, weld in hot and cold environments, and climb ladders as part of his job.

In early April 2010, claimant filed for retirement with employer effective on May 1, 2010. On April 15, 2010, claimant sustained a work injury by accident when he tripped and fell over a temporary attachment[1] on his way to his toolbox, [63 Va.App. 452] hit a chair, and then landed on the floor. As a result of the fall, claimant injured his right and left knees, right hip, back, right shoulder, right and left hands, right and left wrists, neck, right and left sciatic nerves, and right sacroiliac joint. Following the accident, claimant was treated by Dr. Worth in the Shipyard Clinic and was placed on restrictions. Claimant temporarily returned to work on a restricted duty status until his retirement on May 1, 2010. After his retirement, claimant was treated by Dr. Stiles and Dr. Wardell, who both placed claimant on no work status.

Page 106

At the hearing before the deputy commissioner on January 11, 2013, claimant faced questioning regarding his ...


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