Bristol Compressors, etc v Harry E. Waters

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Benton and Overton
Argued at Salem, Virginia

BRISTOL COMPRESSORS AND
NATIONAL UNION FIRE INSURANCE

COMPANY OF PITTSBURGH MEMORANDUM OPINION
BY JUDGE JOSEPH E. BAKER
Vv. Record No. 2303-94-3 DECEMBER 19, 1995

HARRY E. WATERS

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Michael F. Blair (Penn, Stuart, Eskridge & Jones,
on brief), for appellants.

Stephen A. Vickers (Vickers & Moffatt, on brief),
for appellee.

In this appeal from a decision of the Workers' Compensation
Commission (commission), Bristol Compressors (employer) contends
that the commission erroneously found that Harry Waters
(claimant) proved a compensable injury by accident arising out of
and in the course of his employment. Therefore, employer
contends that the commission wrongfully entered an award of
benefits for the injury. Employer argues that the record does
not contain sufficient credible evidence to support the award.

In claimant's "CLAIM FOR BENEFITS" form and request for

rehearing, he described the accident as having occurred when his

"Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

‘This application was forwarded to the commission by letter
dated February 10, 1994 and stated that the accident had occurred
on November 1, 1993.

- 2 -
"foot slipped on a greasy skid and caused the claimant to fall."
Following a hearing on May 4, 1994, the deputy commissioner
found that claimant did not prove a compensable injury by
accident arising out of and in the course of his employment.
On appeal from that decision, the full commission found
". . . that the injury resulted from contaminants on the pallet
or because of the unusually low height of the step, or a
combination of the two factors, and is compensable."2
On appeal, we state the facts in the light most favorable to
claimant as the prevailing party below. 	Crisp v. Brown's Tysons
Corner Dodge, Inc., 1 Va. App. 503, 339 S.E.2d 916 (1986). 	At
approximately 5:30 a.m. on November 1, 1993, while working his
usual 7:00 p.m. to 7:00 a.m. work shift, claimant sustained a
broken ankle. 	Claimant filed a claim for workers' compensation
benefits using a commission form. 	He answered the "How Occurred"
question by saying his "[f]oot slipped on a greasy skid and
caused [him] to fall." 	At the hearing, and in a pretrial
interview, claimant denied seeing oil on the floor or pallet;
however, he consistently testified that while he did not see oil,
it always was there due to leaking machinery. 	He said the skid,
alternately referred to as a pallet, was greasy, and he always
had oil on his boots. 	When asked what was responsible for his
injury, claimant responded, "The skid. 	If there were not skids
2Claimant testified that the height of the pallet was six to
eight inches.

- 3 -
in front of the machines and you had to back off of them or if
there was a safer way of coming down off of them, I wouldn't have
broke [sic] my leg. 	No way."
Claimant further testified that immediately prior to his
fall, his machine was "down." 	In such cases, his job required
that he offer to relieve a co-worker, and claimant ascended to
make that offer. 	When the co-worker declined his offer, due to
the existing physical conditions, claimant was required to back
down off of the greasy six to eight inch pallet to return to his
work station.
Employer argues that there is no evidence in this record to
support the commission's finding that the injury occurred in the
manner stated by the commission. 	We disagree.
There is evidence that the pallet was greasy and that
claimant backed off of it as he descended from his co-worker's
station. 	Claimant stated that the cause of his fall and injury
was the greasy skid in front of the machine that constantly
leaked oil, compiled with the physical structure that required
him to back off of the skid. 	While claimant did not say that he
slipped on grease or oil, he did say his fall was caused by the
"height of the skid" when he backed off, ". . . the height
ratio."
We are of opinion that the foregoing evidence is sufficient
to support the commission's finding that claimant sustained an
injury in the course of his employment and arising out of a risk

he was subject to at the place thereof. Accordingly, we affirm
the award.

Affirmed.