COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
MARY E. LEWIS
MEMORANDUM OPINION *
v. Record No. 0270-97-2 PER CURIAM
JUNE 24, 1997
SEARS ROEBUCK & COMPANY
AND
LUMBERMAN'S MUTUAL CASUALTY
COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Mary E. Lewis, pro se, on brief).
(Daniel G. Bloor; Midkiff & Hiner, on brief),
for appellees.
Mary E. Lewis (claimant) 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 October 5, 1995. 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 [her] burden of proving an 'injury by accident,' a
claimant must prove that the cause of [her] 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) (emphasis in original). Unless we can say as a matter
of law that claimant'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).
Claimant testified that on October 5, 1995, while working
for Sears Roebuck & Company (employer) as a delivery clerk, a
television set fell off a handtruck pushed by a co-worker, Don
Flippo, onto the top of claimant's foot. Claimant did not report
the incident to her supervisor on October 5, 1995. On the day of
the alleged incident, she completed her work shift. She also
worked the next day. On October 6, 1995, claimant's supervisor
told her that her last day of work would be October 9, 1995.
During this conversation, claimant did not report an accident or
a work-related injury to her supervisor. Claimant first sought
medical treatment from Dr. S. Sharma for a foot condition on
October 9, 1995, her last day of work. On October 18, 1995, Dr.
Ilene S. H. Terrell diagnosed claimant as suffering from a
ganglionic cyst and a heel spur. Dr. Terrell surgically removed
the cyst on December 1, 1995, and claimant was released to return
to work on January 23, 1996.
Flippo testified that he did not work on October 5, 1995 and
that he never dropped a television set on claimant's foot.
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Based largely upon its finding that Flippo's testimony was
credible and claimant's testimony was not credible, the
commission held that claimant failed to prove that she sustained
an injury by accident arising out of and in the course of her
employment on October 5, 1995.
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 claimant
sustained an injury by accident arising out of and in the course
of her employment was entirely dependent upon the credibility of
the witnesses. The commission, in considering the testimony of
the witnesses, found claimant's evidence to be insufficient to
establish her claim. In light of claimant's failure to report
the incident to her supervisor on the date of her injury or the
next day and the inconsistencies between her testimony and
Flippo's testimony, we cannot say, as a matter of law, that
claimant's evidence sustained her burden of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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