COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
RITA F. SHIFFLETT
MEMORANDUM OPINION*
v. Record No. 2816-01-2 PER CURIAM
APRIL 16, 2002
CONAGRA FROZEN FOODS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Norman Lamson, on briefs), for appellant.
(Kerri Borchardt Taylor; Morin & Barkley, on
brief), for appellee.
Rita F. Shifflett (claimant) contends the Workers'
Compensation Commission erred in finding she failed to prove (1)
that she sustained an injury by accident arising out of and in
the course of her employment on November 17, 1998, resulting in
neck problems; and (2) that her May 1999 and October 1999 neck
problems were causally related to the November 17, 1998 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.
"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
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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). Unless we can say as a matter of law
that claimant's evidence sustained her burden of proof, the
commission's findings are binding and conclusive upon us. See
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
The full commission affirmed the deputy commissioner's
finding that claimant failed to prove that she sustained an
injury by accident on November 17, 1998, but rather that her
neck strain was the result of non-compensable cumulative trauma.
In so ruling, the deputy commissioner found as follows:
The claimant asserts that on [the]
morning [of November 17, 1998] she was
lifting heavy vegetable boxes and throwing
them down to break the frozen contents for
eventual use in food production lines. At
her first visit to the employer's nursing
station, she reported a pinch in her neck
one week prior, no trauma or precipitating
factors, and she had mentioned the neck
pinch one week prior, being advised to use
heat. At the visit that day with
Dr. [Charles] Thurber, he also mentioned no
history of injury, and that she related the
pinching as far back as 1996, which was
exacerbated with heavy lifting. The note
from her subsequent first visit with
Spectrum Therapy also refers to her lifting
objects overhead when she was injured from
which she felt difficulties from the
activity for "several weeks." This
evaluation, which occurred three days after
the alleged injury negates, as do the other
medical reports, a specific singular
precipitating event to which the claimant
testified. It is contrary to normal
- 2 -
credibility to have three consistent medical
reports denying a specific traumatic event
when a claimant expresses that the contrary
occurred.
We are not persuaded that the claimant,
who from the medical records has had a
history of neck condition, sustained a new
injury on November 17, 1998, as opposed to a
flare-up of her continuing problems as a
result of repetitive lifting of heavy
objects.
Based upon the medical histories, the commission, as fact
finder, was entitled to reject claimant's testimony regarding
the happening of a specific identifiable incident on November
17, 1998 resulting in a neck injury. 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). Accordingly, we
cannot find as a matter of law that claimant's evidence
sustained her burden of proving that a specific indentifiable
incident occurring at work on November 17, 1998 resulted in her
neck condition.
Because our ruling on this issue disposes of this appeal,
we need not address the remaining issue raised by claimant.
Therefore, we affirm the commission's decision.
Affirmed.
- 3 -