DOLLAR TREE STORES, INC. AND ARCH INSURANCE COMPANY
ELIZABETH A. WILSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Matthew J. Griffin (Emily O. Sealy; Midkiff, Muncie & Ross, P.C., on brief), for appellants.
Elizabeth A. Wilson, Pro se.
Present: Judges Petty, Huff and Senior Judge Annunziata. OPINION BY JUDGE GLEN A. HUFF.
[64 Va.App. 105] GLEN A. HUFF, JUDGE.
Dollar Tree Stores, Inc. (" employer" ) appeals a decision of the Virginia Workers' Compensation Commission (" commission" ) finding that Elizabeth A. Wilson (" claimant" ) suffered a compensable injury. On appeal, employer asserts that the commission " erred in finding that the claimant sustained a compensable injury by accident arising out of her employment, given that the evidence did not prove that the injury was caused by an actual risk of the employment or an actual risk inherent and unique to the employment." For the following reasons, this Court affirms the commission's ruling.
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). 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). In addition, the commission's " conclusions upon conflicting inferences, legitimately drawn from [64 Va.App. 106] 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.
On October 21, 2011, claimant was employed as the manager of the Dollar Tree Store in Altavista, Virginia. The store's layout, at that time, consisted of aisles, " gondolas," and " end caps" for product displays and sale to the general public. The store also had four cash registers. At the front of one of the registers was a water display stack (" water stack" ), which consisted of cases of one-gallon water containers that were stacked three cases deep and three cases wide.
As store manager, claimant was responsible for " closing out" the store's registers at the end of each day. Around closing time on the day of the incident, claimant " closed out" a register that Robin East (" East" ), a store employee, had been using. Claimant handed East the register drawer, and East started walking with the drawer towards claimant's office. Claimant turned to follow East, but " caught [her] foot on [the water] stack" as she was going " around the end of the . . . register." Claimant " grabbed the end of the register" to keep herself from falling, but testified that she felt " immediate pain." Additionally, claimant testified that she did not have to " turn sideways," " back up," or " walk unusually" to get past the water stack.
After tripping over the water stack, claimant did not initially realize how " severe . . . it was." Consequently, she finished closing down the store for the day. A week later, however, claimant sought medical attention from Dr. Robert Sydnor (" Sydnor" ). An MRI revealed " a nondisplaced stress fracture at the left femoral neck and low grade stress reaction of the right femoral neck." Claimant underwent surgery to repair the fracture, and Sydnor released her to return to light-duty work on December 21, 2011. Claimant resumed earning her usual salary on December 25, 2011, although she did not return to work until January 3, 2012. Sydnor released claimant of all restrictions on March 13, 2012.
[64 Va.App. 107] Claimant filed a claim with the commission on February 9, 2012 seeking temporary total disability benefits from October 22, 2011 through December 28, 2011 and temporary partial disability benefits from December 29, 2011 through March 12, 2012. On August 9, 2012, the ...