COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

BOBBY HAY, T/A UP FRONT PAINTING 

 MEMORANDUM OPINION*

v. Record No. 1196-97-3 PER CURIAM 

 SEPTEMBER 30, 1997 

DANNY EUGENE POWELL 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Robert M. McAdam; David W. Hearn; Wooten & 

Hart, on brief), for appellant. 

 (Thomas N. Key; Neil E. McNally; Key & Tatel, 

on brief), for appellee. 

 Bobby Hay, t/a Up Front Painting (employer), contends that 

the Workers' Compensation Commission erred in finding that (1) 

Danny Eugene Powell proved he sustained an injury by accident 

arising out of and in the course of his employment on November 6, 

1995; (2) employer regularly employed three or more painters, 

rendering it subject to the jurisdiction of the Workers' 

Compensation Act ("the Act"); and (3) Powell remained totally 

disabled since the November 6, 1995 accident, and, therefore, had 

no duty to market his residual work capacity. 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. 

 

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

designated for publication. 
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 I. 

 Powell testified that while working for employer he lost his 

balance on the edge of a roof and fell approximately twelve feet 

to the ground below. As a result, Powell injured his right foot. 

 Dr. Richard Whitehill diagnosed Powell as suffering from a 

dislocated ankle and a fractured heel. Dr. Whitehill performed 

surgery to correct these conditions. 

 In rendering its decision, the commission adopted and 

affirmed the deputy commissioner's findings. The deputy 

commissioner found as follows: 

 No testimony was presented which would 

meaningfully contradict [Powell's] account of 

his accident, which we hereby adopt as our 

own. Although counsel for Bobby Hay inferred 

that [Powell] fell because he was under the 

influence of Valium, that inference was 

advanced in an evidentiary vacuum, and is 

unpersuasive. [Powell] said that he last 

took Valium the day before he was hurt, no 

medical evidence has been filed that he was 

impaired, and the fact that he was able to 

work nearly the entire shift until the mishap 

occurred convinces us that his injury was 

accidental, rather than self-imposed. 

 "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). Powell's testimony and the medical 

records provide credible evidence to support the commission's 

finding that Powell proved an identifiable incident resulting in 
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a sudden mechanical change in his body. Thus, that finding is 

conclusive on this appeal. See 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 and 

rejected employer's speculative contention that Powell fell due 

to ingesting valium. No evidence supported this contention. 

Moreover, "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). 

II. 

 Code § 65.2-101(2)(h) provides that an employer who has 

three or more employees "regularly in service" is subject to 

jurisdiction under the Act. 

 Powell testified that employer employed three or more 

painters over an extended period of time before Powell's 

accident. The commission found Powell to be credible. 

Furthermore, employer offered no evidence to contradict Powell's 

testimony. Based upon Powell's unrebutted testimony, we cannot 

say as a matter of law that employer's evidence proved it was not 

subject to the commission's jurisdiction under the Act. 

 III. 

 Based on the evidence regarding Powell's disability, the 

deputy commissioner found as follows: 

 [Powell] was repetitively assessed by Dr. 
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Whitehill as being "unable to work" during 

their association. Once that association 

ended, [Powell] was followed locally by a 

succession of orthopedists. There is no 

indication from their office notes that they 

at any point gave [Powell] even a partial 

work release, and Dr. [Olumide A.] Danisa 

specifically indicated on April 24, 1996 that 

he expected his patient to be "off work for 

6-12 months." It is by no means 

determinative that Dr. [Dallas P.] 

Crickenberger did not similarly assess 

[Powell] in his recently filed narrative 

report since, as the orthopedist candidly 

acknowledged, "there was no discussion 

regarding" his patient's "work status" upon 

the one occasion he examined him on July 31, 

1996. 

 The commission affirmed and adopted the deputy 

commissioner's finding that Powell remained totally disabled 

since the November 6, 1995 accident. The medical records of Drs. 

Whitehill and Danisa, along with Powell's testimony, provide 

credible evidence to support the commission's findings, which we 

will not disturb on appeal. Because the evidence supports the 

commission's decision, Powell had no residual work capacity to 

market. 

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

 Affirmed.