COURT OF APPEALS OF VIRGINIA

ROMINGER LEGAL

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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

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.

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

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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