COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
JOSEPH BERTRAM PACKETT, III
MEMORANDUM OPINION *
v. Record No. 1752-98-2 PER CURIAM
JANUARY 19, 1999
POTOMAC SUPPLY CORPORATION AND
FIREMAN'S FUND INSURANCE
COMPANY OF WISCONSIN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Joseph Bertram Packett, III, pro se).
(Daniel E. Lynch; John T. Cornett, Jr.;
Williams & Lynch, on brief), for appellees.
Joseph Bertram Packett, III ("claimant") contends that the
Workers' Compensation Commission ("commission") erred in finding
that his claim was barred due to his failure to give timely
notice of his alleged July 31, 1996 injury by accident to Potomac
Supply Corporation ("employer") as required by Code § 65.2-600.
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.
An employee is not entitled to receive compensation or
medical expenses unless the employee has given the employer
written notice of the accident within thirty days, unless the
employee had reasonable excuse or the employer had knowledge of
the accident. See Code § 65.2-600. Unless claimant proved as a
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
matter of law that either he gave employer timely notice of his
alleged July 31, 1996 accident; that employer had actual
knowledge of the accident; or that claimant was justified in
failing to give timely notice, 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 meet his burden of proof,
the commission made the following findings:
The claimant testified at length about
communications he had with various personnel
at the employer with regard to his condition.
At one point, the claimant began by saying
that he specifically told Mr. Clegg that he
tripped over a cord. However, he immediately
recanted this statement and admitted that
"well, I didn't tell him, I just pointed to
it, showed him the fan[.]" Other statements
by the claimant were equally vague and, at
times, internally inconsistent. . . .
Representatives of the employer[,
including John Clegg, David Rector, Richard
Connelly, and Ann Swann,] uniformly denied
having been notified by the claimant of his
alleged accident of July 31, 1996. Both Mr.
Rector and Ms. Swann testified that the
claimant referred only generally to pain he
was having with his back. He did not mention
any difficulty with his neck. They also
stated that the claimant did not refer to a
specific accident or event that may have
occurred on July 31. The testimony of the
employer's representatives is in a conflict
with that offered by the claimant, and the
Deputy Commissioner implicitly resolved the
conflict in favor of the employer. We will
not disturb such determinations here.
The commission's findings are amply supported by the record.
As fact finder, the commission was entitled to weigh the
evidence and to resolve the inconsistencies in the witnesses'
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testimony in favor of employer. 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). The commission was free to
accept the testimony of employers' witnesses. Based upon their
testimony, we cannot find as a matter of law that claimant's
evidence sustained his burden of proving that employer had actual
knowledge of his alleged accident; that he gave timely notice of
his alleged accident as required by Code § 65.2-600; or that he
1
had a reasonable excuse for giving late notice.
For these reasons, we affirm the commission's decision.
Affirmed.
1
Claimant argues that Employer's First Report of Accident,
filed with the commission on December 5, 1996, established that
claimant notified employer of his alleged accident. This
argument is without merit. The report, filed after claimant
filed his Claim for Benefits, clearly stated that claimant did
not make employer aware of any "specific accident, incident, or
injury . . . ."
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