COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Senior Judge Overton

CLAIRE L. ROTH
MEMORANDUM OPINION*
v. Record No. 1422-01-1 PER CURIAM
OCTOBER 30, 2001
THE LEE GROUP/LEE STAFFING RESOURCES AND
TWIN CITY FIRE INSURANCE COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Claire L. Roth, pro se, on briefs).

(Allen Lotz; Huff, Poole & Mahoney, P.C., on
brief), for appellees.

Claire L. Roth (claimant) contends that the Workers'
Compensation Commission erred in finding that she failed to
prove that she sustained an injury by accident arising out of
and in the course of her employment on September 9, 1999. 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 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).
The commission ruled that claimant did not prove that she
was injured as a result of a specific incident at work on
September 9, 1999. As the basis for its decision, the
commission made the following findings:
Although the claimant testified that a
specific incident occurred on September 9,
1999, the preponderance of the evidence does
not support her testimony. The claimant
wrote on the "LSR Employee Accident
Statement" that she hurt her right arm after
performing various activities such as
filing, opening mail, using the computer
mouse, and stapling. The [Employer's First
Report of Accident] also reflects that the
claimant used her arm more than usual while
filing and opening mail. [John C.]
Donnelly, [Michael J.] Wozniak, and
[Melissa] Singleton denied that the claimant
told them about a specific injury by
accident. However, Donnelly and Wozniak
recalled that the claimant related her pain
to repetitive job activities. Hardison
testified that the claimant told her in
late-October 1999 about a specific incident
that caused her pain; however, this
discussion occurred after the claimant told
her that she felt right arm pain after
performing various repetitive activities at
work.
Furthermore, the initial medical
reports do not support the claimant's
testimony about a specific incident.
Several health care providers noted that the
claimant's pain began after performing
repetitive work activities such as filing
and mailing. None of the medical reports
reflect that the claimant suffered a
specific event or sudden onset of pain until
several months after the alleged accident.
As fact finder, the commission was entitled to accept the
testimony of employer's witnesses and to reject claimant's
testimony that a specific incident occurred. 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). In this instance,
the issue of whether claimant sustained an injury due to a
specific identifiable incident occurring at work on September 9,
1999 was entirely dependent upon the credibility of the
witnesses. The commission, in considering the testimony of the
witnesses, found that claimant's evidence was insufficient to
establish her claim. In light of the inconsistencies between
her testimony, the written reports of her injury, and the
testimony of employer's witnesses, coupled with the lack of any
history of a specific incident in the medical records until
several months after the alleged accident, 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.

* Pursuant to Code 17.1-413, this opinion is not
designated for publication.
In her brief, claimant raises twenty-four questions
presented. Our review of the brief and the record indicates
that questions one through twenty-three deal with the issue of
whether claimant proved she sustained an injury by accident.
Accordingly, we will address those questions together. Question
twenty-four pertains to whether claimant's counsel provided
effective representation. This Court is not the proper forum
for consideration of this issue. Therefore, we will not address
it on appeal. We also note that we do not consider any evidence
on appeal that was not before the commission. Moreover, we find
no evidence to support claimant's bare allegation that the
transcript of the hearing is missing substantial amounts of
testimony.

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