COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
BOBBY MORTON
MEMORANDUM OPINION*
v. Record No. 2326-98-2 PER CURIAM
MAY 4, 1999
SERVICEMASTER CONSUMER SERVICE
AND ZURICH INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Lindsay G. Dorrier, Jr., on brief), for
appellant.
(Charles F. Midkiff; Midkiff & Hiner, P.C.,
on brief), for appellees.
Bobby Morton ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in finding that he
failed to prove that he sustained an injury by accident arising
out of and in the course of his employment on August 2, 1997. 1
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.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
1
Claimant presented five questions in his brief. All of
those questions relate to the pivotal issue of whether he proved
that a specific identifiable incident occurred on August 2,
1997.
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 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). 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 denying claimant's application, the commission found as
follows:
Although the claimant at some point in
his testimony indicated that he had hurt his
back while lifting a bag of laundry, the
Deputy Commissioner concluded that Morton
had failed to prove that his injury resulted
from any specific incident or identifiable
event. We have carefully reviewed the
record, and find no reason to reverse the
implied credibility determination made by
the Deputy Commissioner. The claimant has
given different versions of his alleged
accident. Although he presently contends
that he hurt his back while lifting laundry
early in the work shift, he had previously
indicated that his injury occurred later in
the work shift as he was shampooing carpets
or cleaning the rooms. Also, he denied any
prior back pain or problems with his back,
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but that denial is contradicted by the
medical records. The August 4, 1997,
accident report, signed by the claimant,
indicates that he was injured while working
with discharge beds, an activity which he
would perform after lifting the laundry
bags. The medical records also indicate
that the claimant remembered no specific
injury.
As fact finder, the commission was entitled to reject
claimant's testimony that a specific incident occurred. It is
well settled that credibility determinations are within the fact
finder's exclusive purview. See Goodyear Tire & Rubber Co. v.
Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987). In
light of the inconsistencies between claimant's testimony and
his prior statements, his medical records, and the accident
report, we cannot say, as a matter of law, that claimant's
evidence sustained his burden of proof.
Claimant also argues that the commission erred in using the
medical records to determine how the accident occurred. This
contention is without merit. In McMurphy Coal Co. v. Miller, 20
Va. App. 57, 59, 455 S.E.2d 265, 266 (1995), we held that under
common law rules of evidence, medical histories are admissible
substantively as party admissions. Thereafter, we recognized in
Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314, 456 S.E.2d
541 (1995), that, under Rule 2.2 of the Rules of the Workers'
Compensation Commission, the commission may consider medical
histories in determining how an accident occurred. Rule 2.2
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gives the commission "'[t]he discretion to give probative weight
to hearsay statements in arriving at its findings of fact.'"
Oliver, 20 Va. App. at 319, 456 S.E.2d at 544 (quoting Williams
v. Fuqua, 199 Va. 709, 714, 101 S.E.2d 562, 566 (1958)).
For these reasons, we affirm the commission's decision.
Affirmed.
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