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Martin v. Young

Court of Appeals of Virginia
Oct 25, 1994
Record No. 0901-94-2 (Va. Ct. App. Oct. 25, 1994)

Opinion

Record No. 0901-94-2

Decided: October 25, 1994

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Affirmed.

(B. Mayes Marks, Jr.; Marks Harrison, on brief), for appellant.

(John M. Oakey; McGuire, Woods, Battle Boothe, on brief), for appellees Robert E. Young, Jr. Painting Contractor and Aetna Casualty and Surety Company.

No brief for appellees Stormont Properties, Ltd. and Uninsured Employer's Fund.

Present: Judges Barrow, Koontz and Bray


MEMORANDUM OPINION

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


The sole issue on this appeal is whether Jerry R. Martin was an employee of Robert E. Young, Jr. Painting Contractor ("Young") on August 21, 1990, the date of Martin's industrial injury. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the Workers' Compensation Commission. Rule 5A:27.

The commission found that, on August 17, 1990, John Ray, who worked for Young, told Martin that Young had terminated Martin. This finding is supported by Martin's September 10, 1990 written statement and corroborated by Ray's testimony that Martin became argumentative at the time he was told of his termination. Ray also testified that, upon being told that he had been fired, Martin walked off the job site and stopped working.

Young testified that he personally fired Martin on August 16, 1990. Young stated that on August 17, 1990, he was paged by Ray concerning Martin being back on the job site. Young told Ray to tell Martin again that he was fired. Young did not keep any further time records on Martin nor was he paid for any work after August 16, 1990. Furthermore, the testimony of Martin and William G. Hoffman, an independent contractor, supports the commission's finding that Martin, having been made aware that he had been terminated by Young, returned to work on August 20 and 21, 1990 seeking work from Hoffman.

We note that the commission found that Martin admitted in the written statement that he had been informed of his termination by Young on August 16, 1990. The written statement does not contain such an admission. However, the written statement reflects that Ray told Martin on August 17, 1990 that Young had fired him. Thus, we do not find this error to be material, especially when viewed in light of the testimony of Young, Ray, and Hoffman.

Based upon these factual findings, the commission ruled that Martin failed to meet his burden of establishing that he was an employee of Young at the time of his injury. This decision was based largely upon the commission's determination that Young's testimony was credible and its recognition that Martin's hearing testimony, denying that he was made aware of his termination prior to his injury, was inconsistent with his September 10, 1990 written statement.

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). The inconsistencies between Martin's testimony and his written statement support the commission's decision to discount his hearing testimony and to rely upon the written statement, which was given closer in time to his injury. The commission was also entitled to accept Young's testimony, which was corroborated by Ray.

Based on the foregoing, we cannot say as a matter of law that the commission erred in finding that Martin failed to establish that he was an employee of Young at the time of his injury.

Accordingly, we affirm the commission's decision.

Affirmed.


Summaries of

Martin v. Young

Court of Appeals of Virginia
Oct 25, 1994
Record No. 0901-94-2 (Va. Ct. App. Oct. 25, 1994)
Case details for

Martin v. Young

Case Details

Full title:JERRY R. MARTIN v. ROBERT E. YOUNG, JR. PAINTING CONTRACTOR, AETNA…

Court:Court of Appeals of Virginia

Date published: Oct 25, 1994

Citations

Record No. 0901-94-2 (Va. Ct. App. Oct. 25, 1994)