COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Duff*
SAMUEL GARRETT PAYNE, JR.
MEMORANDUM OPINION **
v. Record No. 1382-01-1 PER CURIAM
OCTOBER 2, 2001
K. JONES HAULING, INC. AND
FIRE & CASUALTY INSURANCE COMPANY
OF CONNECTICUT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Chandra L. Wilson; Rutter, Walsh, Mills &
Rutter, L.L.P., on brief), for appellant.
(Joseph F. Giordano; Thomas E. Dempsey;
Semmes, Bowen & Semmes, P.C., on brief), for
appellees.
Samuel Garrett Payne, Jr. contends the Workers'
Compensation Commission erred in finding that he failed to prove
he sustained an injury by accident arising out of his employment
on August 30, 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. See
Rule 5A:27.
*
Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
**
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
"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
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 Payne's evidence sustained his 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).
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). In
ruling that Payne failed to prove he sustained a compensable
injury by accident on August 30, 1999, the commission found as
follows:
The record contains several inconsistencies
regarding the date of, and the circumstances
following, the alleged incident. The
claimant testified on direct examination
that his feet slipped off the tailgate on
August 30, 1999, due to an oily, muddy
substance on the back of his truck. On
cross-examination, however, he stated that
he was not sure how he fell and that
"evidently" either his hand or feet slipped
off the back of the truck. Significantly,
the claimant testified that the fall caused
him to lie on his back for at least ten
minutes and that he then finished this task
and returned home early, arriving by 9 a.m.
To the contrary, his girlfriend testified
that the claimant arrived home from work
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later that evening at his regular time.
O'Ryan Jones testified that he observed the
claimant working on August 30, 1999, but he
did not recall any report about a fall.
Similarly, Kenneth Jones denied being
informed about the alleged fall until
October 1, 1999, and was told by the
claimant that the date of accident was
September 20, 1999. Jones also testified
that no muddy substance was hauled on the
alleged date of injury.
The [medical] record contains evidence that
the claimant had been complaining of arm and
hand tingling for several weeks prior to the
alleged incident. Dr. [Charles] Ellis'
office notes reflect frequent contact with
the claimant from September through December
1999, during which time there was no mention
of a fall, a work-related incident, or that
the claimant complained of any back or neck
problems. When the claimant received
emergency medical care on September 10,
1999, he complained of abdominal cramps,
lower extremity numbness and weakness of
several months' duration, constipation, and
nausea, but apparently did not mention a
recent work-related fall. Thereafter, on
October 6, 1999, the claimant's complaints
to the emergency room staff included
constipation, vomiting, diabetes, high blood
pressure, and problems with his balance.
Again, he made no complaints regarding any
musculoskeletal problems, and his back
examination was reported as normal. The
claimant's first apparent mention of a
work-related fall was to Dr. [Wallace K.]
Garner on October 8, 1999, but he provided
no date of accident, and Dr. Garner's notes
and reports indicate the claimant's report
of a fall in September 1999.
The commission's findings are supported by credible
evidence in the record. The commission concurred in the deputy
commissioner's finding that Payne was not a credible witness
when he testified about events he said occurred on August 30,
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1999. The record contains no corroboration for Payne's
testimony; it contains inconsistencies between Payne's testimony
and the witnesses' testimony; and it lacks any medical history
regarding a work-related injury until October 8, 1999. The
commission, as fact finder, was entitled to conclude that
Payne's testimony was not credible. See Goodyear Tire & Rubber
Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987)
(holding that credibility determinations are within the fact
finder's exclusive purview.)
Based upon this record, we cannot find as a matter of law
that Payne's evidence sustained his burden of proof.
Accordingly, we affirm the commission's decision that he failed
to prove he sustained a compensable injury by accident on August
30, 1999.
Affirmed.
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