COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
EDWARD L. JENKINS
MEMORANDUM OPINION*
v. Record No. 1052-00-1 PER CURIAM
AUGUST 8, 2000
PENINSULA ROOFING COMPANY, INC.,
AETNA COMMERCIAL INSURANCE COMPANY
AND VALLEY FORGE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Byron A. Adams, on brief), for appellant.
(Roya Palmer Ewing; Law Offices of Roya
Palmer Ewing, on brief), for appellees
Peninsula Roofing Company, Inc. and Valley
Forge Insurance Company.
No brief for Aetna Commercial Insurance
Company.
Edward L. Jenkins (claimant) contends that the Workers'
Compensation Commission erred in finding that he failed to prove
that he sustained a new injury by accident arising out of and in
the course of his employment on July 1, 1998. 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.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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,'
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) (citations omitted). "[A]ggravation of an old injury
or a pre-existing condition is not, per se, tantamount to a 'new
injury.' To be a 'new injury' the incident giving rise to the
aggravation must, in itself, satisfy each of the requirements
for an 'injury by accident arising out of . . . the
employment.'" First Fed. Sav. & Loan Ass'n v. Gryder, 9 Va.
App. 60, 63, 383 S.E.2d 755, 757-58 (1989). Unless we can say
as a matter of law that claimant’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).
In ruling that claimant failed to prove that he sustained a
new injury by accident on July 1, 1998, the commission made the
following findings:
[Claimant] testified that on July 1, 1998,
he experienced an "excruciating pain like a
pop . . ." in his back which forced him to
rest (Tr. at 37). The claimant admitted
that he completed the work shift and
returned the following day. Contrary to
this testimony, the Employer's First Report
of Accident dated August 13, 1998, reflects
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that he reported that his back pain occurred
from "constant getting up & down, bending &
stooping, picking up buckets of glue and
primer." Similarly, on August 18, 1998, the
claimant described a vague experience of
severe numbness without a distinct onset of
pain. He stated that he and [Johnny L.]
Haywood [, Jr.] had just started rolling
glue and picking up rubber and that the
"pain just started increasing. . . ." (Rec.
St. at 4).
In addition, to the claimant's
unconvincing and contradictory testimony,
the medical record does not support that a
compensable work-related incident occurred
on July 1, 1998. It is clear that prior to
that date he continued to experience back
pain which rendered him unable to work and
prompted him to seek medical care. . . .
Dr. [Maurice O.] Murphy excused the claimant
from work on July 6, 1998. There was no
mention of an intervening accident. On July
7, 1998, the claimant told Dr. [C. Lee]
Ginsburgh that his low back pain had been
bothersome for three weeks. Significantly,
Dr. Ginsburgh's office notes from July 7,
July 21, and September 25, 1998, all
reference an injury date of February 13,
1996. Furthermore, on July 20, 1998, the
claimant advised Dr. [Hallett H.] Mathews
that he had been involved in a motor vehicle
accident. He inexplicably failed to mention
any work incident on July 1, 1998. Although
Dr. [Peter M.] Klara's office saw the
claimant on August 5, 1998, no one recorded
a new incident. Instead, continued pain
from the surgery was noted. Dr. Mathews
first alluded to an unspecified early-July
injury on September 21, 1998. Then, on
October 7, 1998, he described "a recent
accident on 7/1/98. . . ." and opined that
the claimant was not healthy prior to this
accident. Again, no details were noted. On
November 3, 1998, Dr. Mathews' operative
report described the motor vehicle accident
and worsening symptomatology.
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. . . [T]he [October 27, 1998 Attending
Physician's] [R]eport mentions that the
claimant was "hurt @ work July 1, 1998" and
that treatment was rendered on July 2, 1998.
[However,] [t]here is no corresponding
office note from this date. . . . [T]his
information merely alludes to the
speculation that the claimant incurred a
work-related accident. Regardless, he must
still prove a discreet, identifiable
incident occurred. At most, on November 23,
1998, Dr. Mathews "assumes" a new date of
injury after some vague lifting accident.
There is no description of a pop, twisting,
or using the glue and rubber.
The commission's findings are supported by the record. In
this instance, the issue of whether claimant sustained a new
injury by accident on July 1, 1998, rather than an exacerbation
of his February 13, 1996 back injury, was dependent upon
claimant's credibility. In light of the inconsistencies between
his testimony, his August 18, 1998 recorded statement, and the
information he provided on August 12, 1998 for Employer's First
Report of Accident, coupled with the lack of any medical history
of an identifiable incident occurring on July 1, 1998 until at
least October 7, 1998 despite ongoing medical treatment, the
commission was entitled to reject the testimony of claimant and
his friend, Johnny Haywood. 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).
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Based upon this record, we cannot say as a matter of law,
that claimant's evidence sustained his burden of proving a new
injury by accident occurring on July 1, 1998.
For these reasons, we affirm the commission's decision.
Affirmed.
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