William Harris v. Newington Services, Inc.

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

WILLIAM HARRIS

v. Record No. 1146-97-2 MEMORANDUM OPINION *
PER CURIAM
NEWINGTON SERVICES, INC. SEPTEMBER 2, 1997
AND
LIBERTY INSURANCE CORPORATION

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William Harris, pro se, on brief).

(Roger L. Williams; Vasiliki Moudilos;
Williams & Lynch, on brief), for appellees.

William Harris contends that the Workers' Compensation

Commission erred in finding that he failed to prove he sustained

an injury by accident arising out of and in the course of his

employment on August 16, 1996. 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. 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 the cause of [the] injury was an identifiable

incident or sudden precipitating event and that it resulted in an

*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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

Harris' evidence sustained his burden of proof, the commission's

finding is 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 Harris did not prove that he fell

ten feet off a scaffolding on August 16, 1996. As the basis for

its decision, the commission made the following factual findings:
On August 19, 1996, [Harris] saw
Dr. Jeffrey K. Wilson, an
orthopedist. Dr. Wilson diagnosed
a left shoulder capsular strain.
Dr. Wilson noted a lack of
cooperation during the exam, as
well as during an examination on
August 26, 1996. On September 18,
Dr. Wilson released [Harris] to
full duty. Dr. Wilson was
contacted by the employer and was
advised that the incident was
disputed. On October 15, 1996, Dr.
Wilson wrote that he had not found
any objective signs or symptoms
that a fall had actually occurred.

At the hearing, six employer
witnesses contradicted [Harris']
testimony regarding his whereabouts
and the work he was performing on
August 16, 1996, and it was
reported that [Harris] was fired
before the alleged incident
occurred.

The commission affirmed the deputy commissioner's determination

that Harris was not credible.

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 As fact finder, the commission was entitled to accept the

testimony of employer's witnesses and to reject Harris' testimony

that an accident 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). Furthermore, the commission could

infer from Dr. Wilson's medical records that Harris' evidence did

not prove he suffered a fall on August 16, 1996. "Where

reasonable inferences may be drawn from the evidence in support

of the commission's factual findings, they will not be disturbed

by this Court on appeal." Hawks v. Henrico County Sch. Bd., 7

Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). Accordingly, we

cannot say as a matter of law that Harris' evidence met his

burden of proof.

For these reasons, we affirm the commission's decision.

Affirmed.

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