COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
JUDY SHAVER HOPCROFT
v. Record No. 2256-96-3 MEMORANDUM OPINION *
PER CURIAM
HOOKER FURNITURE CORPORATION MARCH 4, 1997
AND
HARTFORD FIRE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Carr L. Kinder, Jr.; Kinder & Fogel, on
brief), for appellant.
(Jonnie L. Speight; Johnson, Ayers &
Matthews, on brief), for appellees.
Judy Shaver Hopcroft (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that (1)
she failed to prove she sustained an injury by accident arising
out of and in the course of her employment on February 14, 1995;
and (2) she failed to give Hooker Furniture Corporation
(employer) timely notice of her alleged injury by accident 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. Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "In
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
order to carry [her] burden of proving an 'injury by accident,' a
claimant must prove the cause of [her] 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).
Claimant testified that her job required her to bend over
and pick up four-by-four inch sections of pallet, which she then
joined together with wooden dowels and blade nails. She then
placed the completed item on another pallet or a truck. She
testified that on February 14, 1995, she felt sharp pains in her
back and legs as she "was bending down." In a March 20, 1995
recorded interview with employer's insurance adjuster, claimant
talked about bending and lifting activities, but did not know
exactly how her injury occurred. In fact, she stated that it
might have been caused by "pushing a motor truck."
On February 23, 1995, claimant told Dr. Pope that she had
suffered "no trauma." On February 28, 1995, Dr. Sander W. Leivy
reported that claimant "began having" pain at work approximately
two weeks earlier, but he did not mention the injury described by
claimant.
In rendering its decision, the commission recognized the
inconsistencies between claimant's testimony, her statements
during the recorded interview, and the histories of injury
recorded by her treating physicians. Based upon these
inconsistencies, the commission found that claimant was not a
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credible witness, her testimony was unpersuasive, and she failed
to prove an injury by accident.
Unless we can say as a matter of law that claimant's
evidence sustained her burden of proof, the commission's finding
is binding and conclusive upon us. Tomko v. Michael's Plastering
Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). It is well
settled that credibility determinations are within the fact
finder's exclusive purview. Goodyear Tire & Rubber Co. v.
Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987). The
commission was confronted with inconsistent accounts of how
claimant's injury was sustained, and it was for the commission to
decide the weight to be given these accounts and the credibility
of the witnesses. Pence Nissan Oldsmobile v. Oliver, 20 Va. App.
314, 317, 456 S.E.2d 541, 543 (1995). The commission may
consider medical histories as party admissions and as impeachment
of the claimant's testimony. Id. at 318-19, 456 S.E.2d at
543-44. Based upon this record, the commission was entitled to
conclude that claimant's testimony was not credible.
Accordingly, we cannot find as a matter of law that claimant's
evidence sustained her burden of proof.
Because our finding on this issue disposes of this appeal,
we will not address the notice issue presented by claimant.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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