Opinion
Record No. 0015-92-4
September 29, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Arturo Hernandez, on brief), for appellant.
(Kelly A. Saunders; Carr, Goodson Lee, on brief), for appellees.
Present: Chief Judge Koontz, Judges Baker and Elder.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Upon reviewing the record and briefs of the parties, we conclude that the appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27. As counsel are familiar with the facts of the case, we recite them only as necessary to explain our decision.
Rafael Hernandez contends that the commission erred in denying his application where the employer's records showed that he was not working on the date on which the alleged injury by accident occurred.
On appellate review, we construe the evidence in the light most favorable to the party prevailing below. R. G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Unless we can say as a matter of law that Hernandez's evidence was sufficient to sustain his burden of proof, then the commission's finding is binding and conclusive upon us.Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The commission's denial of Hernandez's application was not based solely upon the existence of employment records showing that Hernandez was not working on March 2, 1990. Two other factors were pertinent to the commission's decision. First, the hospital records of March 5, 1990, show a history of injury due to a lifting incident occurring "2 days ago." Second, no records make any mention of a March 2, 1990 fall until it was reported historically in Dr. Gonzalez's November 14, 1990 report.
Based on this evidence, we cannot say that, as a matter of law, Hernandez sustained his burden of proving an injury by accident occurring on March 2, 1990. Accordingly, the commission's finding is binding and conclusive upon us.
Affirmed.