COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Coleman
LISA L. CONAWAY
MEMORANDUM OPINION *
v. Record No. 1420-98-1 PER CURIAM
NOVEMBER 24, 1998
KENTUCKY FRIED CHICKEN AND
AMERICAN CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert E. Walsh; Rutter & Montagna, on
brief), for appellant.
(William C. Walker; Donna White Kearney;
Taylor & Walker, P.C., on brief), for
appellees.
Lisa L. Conaway contends that the Workers' Compensation
Commission ("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 March 13, 1997. 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.
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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 Conaway'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).
The commission ruled that Conaway failed to prove that an
identifiable incident or precipitating event caused her neck and
back injuries. As the basis for its decision, the commission
made the following findings:
Based upon all the evidence, the Deputy
Commissioner concluded that Conaway had
failed to prove a compensable injury by
accident. We agree, and find no basis on
which to reverse the credibility
determination of the Deputy Commissioner.
Although Conaway's Hearing testimony and the
history recorded by Dr. [Lawrence] Morales
would support a finding of a specific
incident, that evidence is undermined by
Conaway's more contemporaneous statements.
In the recorded statement given two weeks
after the alleged accident, Conaway failed to
describe an identifiable incident which
caused her injury, and confirmed that she did
not begin to feel pain until after she had
moved the 15 cases of chicken. She denied
that there was a specific incident, and
stated that her pain had a gradual onset.
Dr. [Cathy H.] Traugh, the initial treating
physician, failed to record the history of a
specific incident. The first mention of a
specific incident came after Conaway had been
advised by the employer's representative that
a gradually incurred injury might not be
compensable.
As fact finder, the commission was entitled to reject
Conaway's hearing testimony that a specific incident occurred.
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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
this instance, the issue of whether Conaway sustained an injury
due to a specific identifiable incident occurring at work on
March 13, 1997 was entirely dependent upon her credibility. The
commission, in considering her testimony, the medical reports,
and her March 27, 1997 recorded statement, found Conaway's
evidence to be insufficient to establish her claim. In light of
the lack of any history of a specific incident in the recorded
statement or in Dr. Traugh's initial medical reports, we cannot
say, as a matter of law, that Conaway's evidence sustained her
burden of proof.
Conaway argues that the commission's decision does not
comport with this Court's holdings in Dollar General Store v.
Cridlin, 22 Va. App. 171, 468 S.E.2d 152 (1996), and R & R
Constr. Corp. v. Hill, 25 Va. App. 376, 488 S.E.2d 663 (1997).
We disagree. In Cridlin, unlike this case, the commission found
that Cridlin's testimony was credible. Cridlin, 22 Va. App. at
176-77, 468 S.E.2d at 154-55. Furthermore, in Hill, unlike this
case, there was no evidence that Hill's back injury occurred
gradually or over a period of time. Hill, 25 Va. App. at 379,
488 S.E.2d at 665.
Conaway also argues that the commission's decision does not
comport with its decisions in several other cases. However, we
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find that those cases either turned upon the issue of
credibility, as does this case, or are distinguishable from this
case on their facts.
For these reasons, we affirm the commission's decision.
Affirmed.
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