COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Humphreys and Retired Judge Duff*

TIMOTHY FLOYD DUNBAR 

 MEMORANDUM OPINION**

v. Record No. 2451-00-3 PER CURIAM 

 FEBRUARY 6, 2001 

RLF IRON ERECTORS, INC. AND 

 AMERICAN INTERSTATE INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Robert E. Evans, on brief), for appellant. 

 (John C. Johnson; Catherine I. Henritze; 

Frith Anderson & Peake, P.C., on brief), for 

appellees. 

 Timothy Floyd Dunbar contends the Workers' Compensation 

Commission erred in finding that (1) he failed to prove his 

fractured leg was causally related to his compensable injury by 

accident; and (2) in the alternative, that if he fractured his 

leg during a scuffle with a co-worker, the injury did not occur 

in the course of his employment. 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. See Rule 5A:27. 

 

 * Retired Judge Charles H. Duff took part in the 

consideration of this case by designation pursuant to Code 

§ 17.1-400(D). 

** Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
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 On appeal, we view the evidence in the light most favorable 

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

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

viewed, the commission found as follows: 

[A]n I-beam rolled on the claimant's foot, 

causing him pain. The claimant was the only 

one who said that the beam struck his lower 

leg. [Howard] Farris stated that the beam 

struck the claimant's foot and that he 

worked the rest of the day with a limp. 

[Kevin] Huber said that the beam fell on 

[claimant's] foot and ankle area in the 

morning and that he subsequently limped. 

Similarly, [Jonathan] Holliday testified 

that the claimant told him about the beam 

rolling on his foot around 10 or 11 a.m. 

[Fred] Hull confirmed that [claimant] 

desired medical attention because he was 

suffering pain and wanted his foot x-rayed. 

Based on the foregoing, we find that the 

claimant injured his left foot on the 

morning of June 2, 1999, when it was struck 

by an I-beam. 

 However, there is no evidence to 

suggest that the injury to the foot 

necessitated any medical care or that it 

caused the tibia/fibula fracture and 

resultant disability. As stated above, 

everyone except the claimant testified that 

the I-beam struck his foot, and perhaps his 

ankle. It is uncontradicted that he 

continued to work and that he was able to 

scale a 40-foot ladder after the incident. 

Although the claimant limped after the 

morning incident, he was able to walk on his 

left leg until after the altercation with 

Hull later that evening. Significantly, Dr. 

[Ian D.] Archibald advised that it would be 

highly unlikely that [claimant] could have 

walked, even with a limp, with the type of 

injury he presented with at the hospital. 
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 We also note that the history the 

claimant provided to his health care 

professionals was incomplete. He 

consistently reported his injury occurred at 

5 p.m. Witness testimony directly 

contradicts this timeframe. Further, no 

medical report mentioned the scuffle or that 

the claimant fell to the ground, which 

caused greater pain than that related to the 

morning incident. 

 As fact finder, the commission was entitled to reject 

Dunbar's testimony and to accept the testimony of his co-workers 

that the I-beam either rolled over or struck Dunbar's foot and 

that he continued to work after that incident. It is well 

settled that credibility determinations are within the fact 

finder's exclusive purview. Goodyear Tire & Rubber Co. v. 

Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987). 

 It is equally well settled that the commission's findings 

of fact, if supported by credible evidence, are conclusive and 

binding on appeal. See Code § 65.2-706; Ivey v. Puckett Constr. 

Co., 230 Va. 486, 488, 338 S.E.2d 640, 641 (1986). In light of 

the testimony of Dunbar's co-workers, Dr. Archibald's opinion, 

and Dunbar's failure to report the scuffle incident to the 

initial medical providers, we cannot find as a matter of law 

that Dunbar sustained his burden of proving that his fractured 

leg was causally related to the I-beam incident. See Tomko v. 

Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 

(1970). 
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II. 

 "To qualify for workers' compensation benefits, an 

employee's injuries must result from an event 'arising out of' 

and 'in the course of' the employment." Pinkerton's, Inc. v.

Helmes, 242 Va. 378, 380, 410 S.E.2d 646, 647 (1991). "An 

injury 'occurs in the "course of employment" when it takes place 

within the period of employment, at a place where the employee 

may be reasonably expected to be, and while he is fulfilling the 

duties of his employment or is doing something which is 

reasonably incidental thereto.'" Lucas v. Lucas, 212 Va. 561, 

563, 186 S.E.2d 63, 64 (1972) (quoting Conner v. Bragg, 203 Va. 

204, 207-08, 123 S.E.2d 393, 396 (1962)). "A finding by the 

Commission that an injury [did not arise] out of and in the 

course of employment is a mixed finding of law and fact and is 

properly reviewable on appeal." Dublin Garment Co., Inc. v. 

Jones, 2 Va. App. 165, 167, 342 S.E.2d 638, 638 (1986). 

 Hull testified that after the workers arrived at the motel 

on the evening of June 2, 1999, he and Dunbar drank an 

eighteen-pack of beer. He and Dunbar argued because Dunbar 

wanted Hull to take him to the hospital to have his foot 

x-rayed. Hull testified that when he refused because he did not 

want to drive after he had been drinking, he and Dunbar tussled. 

During the tussling they fell over a curb. Holliday confirmed 

that Hull and Dunbar argued and tussled after drinking beer. 
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Indeed, Dunbar confirmed these events and testified that, when 

he fell onto the pavement, Hull fell on him. Dunbar does not 

dispute that his condition was worse after the scuffle than when 

they had arrived at the motel. 

 The commission found that the altercation occurred after 

Dunbar drank numerous beers and that he actively participated in 

horseplay. Thus, the commission ruled that even if Dunbar and 

Hull were arguing about a work-related matter when his leg was 

fractured, "any injury arising from the scuffle occurred outside 

the scope of employment." See Mullens v. Westmoreland Coal Co., 

10 Va. App. 304, 307-08, 391 S.E.2d 609, 611 (1990). See also

Kensington Associates v. West, 234 Va. 430, 436, 362 S.E.2d 900, 

901 (1987). 

 The commission's factual findings are supported by the 

testimony of Dunbar, Hull, and Holliday. Based upon credible 

testimony, the commission could reasonably conclude that when 

Dunbar injured his leg during the scuffle, he was not fulfilling 

the duties of his employment or doing something which was 

reasonably incidental thereto. Based upon this record, we 

cannot find as a matter of law that Dunbar sustained his burden 

of proving that any injury he suffered during the scuffle 

occurred in the course of his employment. 

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

 Affirmed.