COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

KESTRINI, INC. T/A 

 GRAPEVINE RESTAURANT 

 MEMORANDUM OPINION*

v. Record No. 2841-96-4 PER CURIAM 

 APRIL 29, 1997 

PATRICIA ANNE RUSSELL 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Francis Chester, on brief), for appellant. 

 (Gregory F. Hutchinson, on brief), for 

appellee. 

 Kestrini, Inc. t/a Grapevine Restaurant (employer) contends 

that the Workers' Compensation Commission (commission) erred in 

finding that Patricia Anne Russell (claimant) proved that she 

sustained an injury by accident arising out of and in the course 

of her employment on June 19, 1995. Upon reviewing the record 

and the briefs of the parties, we conclude that this appeal is 

without merit. Accordingly, we summarily affirm the commission's 

decision. Rule 5A:27. 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

 So viewed, the evidence established that on June 19, 1995, 

claimant, a waitress, slipped and fell on a wet floor at work, 

pinning her right hand underneath her. Claimant testified that 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

no one witnessed the accident. However, she stated that she told 

Gail Manilla, a co-worker, and Anastasios Diniz, the owner of the 

restaurant, about her fall. Manilla and Diniz did not recall the 

incident. In addition, Diniz's wife testified that claimant did 

not report the accident. Tim Pullen, claimant's friend, 

testified that around midnight on June 20, 1995 claimant came to 

his house, told him that she fell at work, that she needed to go 

to the hospital and that she asked him to take her. Pullen 

recalled that claimant's hand was swollen and she appeared to be 

in discomfort. 

 The June 20, 1995 emergency room records indicate that 

claimant gave a history of the accident consistent with her 

testimony. In addition, she gave the same history to her 

subsequent treating physicians. Claimant's treating physicians 

opined that her right wrist condition was caused by the accident 

as described by her. 

 In rendering its decision, the commission found: The 

Deputy Commissioner determined that the claimant was a credible 

witness and found that she had met her burden of proving a 

compensable injury. We agree. 

 The Uninsured Employer's Fund, in its brief, 

concedes that the claimant injured her wrist but 

alleges that it must have occurred after work. No 

evidence was offered to support this defense. We 

cannot deny benefits based on unsupported speculation. 

 The claimant indicated that she fell on her arm and 

sought treatment late that night. The medical records 

are consistent with her version of events. Although 

there was conflicting testimony, we find that the 

claimant sustained a compensable injury. 
 3 

 "In order to carry [the] burden of proving an 'injury by 

accident,' a claimant must prove that the cause of [the] injury 

was an identifiable incident or sudden precipitating event and 

that it resulted in an obvious sudden mechanical or structural 

change in the body." Morris v. Morris, 238 Va. 578, 589, 385 

S.E.2d 858, 865 (1989). Claimant's testimony, which was 

corroborated by the medical histories and Tim Pullen's testimony, 

provides credible evidence to support the commission's finding 

that she proved an identifiable incident resulting in a sudden 

mechanical change in her body. Thus, that finding is conclusive 

on this appeal. James v. Capitol Steel Constr. Co., 8 Va. App. 

512, 515, 382 S.E.2d 487, 488 (1989). 

 In rendering its decision, the commission considered the 

testimony of employer's witnesses, and resolved any 

inconsistencies between this evidence and the testimony of 

claimant and Pullen in favor of claimant. "In determining 

whether credible evidence exists, the appellate court does not 

retry the facts, reweigh the preponderance of the evidence, or 

make its own determination of the credibility of the witnesses." 

Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 

32, 35 (1991). "The fact that there is contrary evidence in the 

record is of no consequence if there is credible evidence to 

support the commission's finding." Id. 

 For the reasons stated, we affirm the commission's decision. 

 Affirmed.