COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Frank and Clements 

DIRECTORS DISTRIBUTORS AGRI SUPPLY AND 

 AMERICAN ALTERNATIVE INSURANCE 

 CORPORATION 

 MEMORANDUM OPINION*

v. Record No. 0868-02-2 PER CURIAM 

 SEPTEMBER 17, 2002 

ROBERT PUGH 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Steven H. Theisen; Theisen & Lingle, P.C., 

on brief), for appellants. 

 (Gerald G. Lutkenhaus, on brief), for 

appellee. 

 Directors Distributors Agri Supply and its insurer 

(hereinafter referred to as "employer") contend the Workers' 

Compensation Commission erred in finding that Robert Pugh 

(claimant) proved (1) he sustained an injury by accident arising 

out of his employment on May 17, 2001; and (2) he was entitled 

to an award of continuing disability benefits after August 21, 

2001, as a result of his compensable injury by accident. Upon 

reviewing the record and the parties' briefs, we conclude that 

this appeal is without merit. Accordingly, we summarily affirm 

the commission's decision. Rule 5A:27. 

 

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

designated for publication. 
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I. Arising Out Of

 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). 

"Whether an injury arises out of the employment is a mixed 

question of law and fact and is reviewable by the appellate 

court." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 

483, 382 S.E.2d 305, 305 (1989). "The phrase arising 'out of' 

refers to the origin or cause of the injury." County of

Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 

(1989). To prevail, claimant must "show that the conditions of 

the workplace or that some significant work related exertion 

caused the injury." Plumb Rite, 8 Va. App. at 484, 382 S.E.2d 

at 306. 

 In ruling that claimant met his burden of proof, the 

commission adopted the deputy commissioner's findings as 

follows: 

"Pugh testified credibly that he had placed 

his right hand on the top of the hopper, and 

was reaching with his left hand to grip 

underneath the hopper. He stated that at 

the time of his injury, he was exerting some 

force with his right hand, in order to 

stabilize the top-heavy hopper. He 

testified that this was not really a normal 

lifting position, as he would not normally 

be reaching out in this manner to get a grip 

and to stabilize the hopper." 

We find that at the time of the injury, he 

was in an awkward position, as he had his 

right hand on top of the four to five foot 
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tall hopper, while reaching underneath with 

his left hand. Also, he was applying some 

force with his right hand in order to 

stabilize the top-heavy hopper. Thus, we 

find that he was engaged in more than a 

simple 3/4 squat at the time of the injury, 

as his hands were separated by the four to 

five foot height of the hopper, and he was 

stabilizing the top of the hopper with his 

right hand. . . . [W]e also find that the 

claimant also had to reach inward with his 

left hand and outward with his right hand. 

We conclude that the claimant was required 

to squat while reaching in an awkward manner 

with both hands while applying stabilizing 

force with his right hand. Thus, we find 

that the claimant has persuasively 

established that his injury resulted from an 

actual risk of his employment. 

 As fact finder, the commission was entitled to resolve any 

inconsistencies between claimant's hearing testimony and his 

written statement in favor of claimant. 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). Claimant's testimony 

constitutes credible evidence to support the commission's 

factual findings. Claimant stated that when he squatted down 

with his right hand on top of the four to five foot hopper and 

his left hand underneath it, while exerting some force with his 

right hand to stabilize the top-heavy hopper, his knee gave way. 

Dr. Jed S. Vanichkachorn, claimant's treating orthopedic 

surgeon, indicated in his July 27, 2001 letter that claimant 

sustained a "Type II discoid meniscus that had sustained a 

recent, large longitudinal tear of the posterior horn region." 
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Claimant was not simply squatting and his knee gave way. 

Rather, the commission could reasonably infer from the evidence 

that claimant's employment-related need to lift the top-heavy 

hopper in an awkward manner resulted in his knee injury. "Where 

reasonable inferences may be drawn from the evidence in support 

of the commission's factual findings, they will not be disturbed 

by this Court on appeal." Hawks v. Henrico County Sch. Bd., 7 

Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). Here, the 

evidence supported an inference that the conditions of the 

workplace either caused or contributed to the claimant's injury. 

II. Disability

 Factual findings made by the commission will be upheld on 

appeal if supported by credible evidence. See James v. Capitol 

Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 

(1989). 

 On July 9, 2001, Dr. Vanichkachorn performed arthroscopic 

right knee surgery on claimant. On July 27, 2001, 

Dr. Vanichkachorn indicated that claimant had "just started an 

aggressive formal physical therapy program for increased range 

of motion, pain relief, increased strength, and increased 

function." Dr. Vanichkachorn opined that claimant should 

"expect to be out of work a minimal [sic] of six weeks 

post-operatively as knee function returns." The hearing took 

place on August 13, 2001, less than six weeks after July 9, 

2001. Thus, as of the hearing date, Dr. Vanichkachorn's medical 
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reports and opinions constituted credible medical evidence to 

support the commission's finding that claimant was entitled to 

an award of continuing temporary total disability benefits. 

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

Affirmed.