COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
GRACE MATTHEWS
MEMORANDUM OPINION*
v. Record No. 2496-01-4 PER CURIAM
DECEMBER 11, 2001
HOMEPLACE HOLDINGS, INC. AND
ASSOCIATED INDEMNITY CORPORATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Grace Matthews, pro se, on brief).
(Daniel E. Lynch; John T. Cornett, Jr.;
Williams & Lynch, on brief), for appellees.
Grace Matthews (claimant) contends the Workers'
Compensation Commission erred in finding that she failed to
prove she sustained an injury by accident arising out of and in
the course of her employment on April 20, 1999. 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.
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). "In
order to carry [the] burden of proving an 'injury by accident,'
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
a claimant must prove 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). 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).
In ruling that claimant failed to establish an injury by
accident, the full commission adopted and affirmed the following
credibility determination rendered by the deputy commissioner:
The issue here is one of credibility.
We have benefited from the opportunity to
observe the witnesses in this case. Based
upon the demeanor of these witnesses, we
find that the claimant did not suffer an
injury by accident as claimed. We do not
find her testimony credible. She describes
a rather significant injury, one involving
the tumbling of 7 or 8 boxes from a height
of 40 to 50 feet. And yet, no one knew
anything about this incident. She never
mentioned the incident or an injury to
anyone. Moreover, she worked for almost two
months without any apparent physical
discomfort or injury. She claims to have
reported the injury to Ms. Lemmons, a person
the claimant insists was a manager or
supervisor. However, all the witnesses
agree that Ms. Lemmons was nothing more than
a co-worker of the claimant. Further, when
Mr. Kimber asked Ms. Lemmons about the
incident, Ms. Lemmons knew nothing about it.
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As fact finder, the commission was entitled to accept the
testimony of employer's witnesses and to reject claimant's
testimony that she sustained an injury by accident as claimed.
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). In
this instance, the issue of whether claimant sustained an injury
by accident on April 20, 1999 was dependent upon her
credibility. The commission, in considering the testimony of
the witnesses and the content of the medical records, found that
claimant's evidence was insufficient to establish her claim.
In light of employer's witnesses' testimony, the lack of
any evidence of medical treatment shortly after the alleged
accident, and the conflicting medical histories, we cannot find
as a matter of law that claimant's evidence sustained her burden
of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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