Marshall R. Braithwaite v. Smalley Package Co.,etal ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
MARSHALL RONALD BRAITHWAITE
MEMORANDUM OPINION*
v. Record No. 2506-99-4 PER CURIAM
FEBRUARY 15, 2000
SMALLEY PACKAGE COMPANY, INC. AND
MARYLAND CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jimmy L. Hill; Roger Ritchie & Partners,
P.L.C., on brief), for appellant.
(William S. Sands, Jr.; Duncan and Hopkins,
P.C., on brief), for appellees.
Marshall R. Braithwaite contends that the Workers'
Compensation Commission erred in finding that he failed to prove
(1) he sustained an injury by accident arising out of and in the
course of his employment on November 12, 1997; and (2) a causal
connection between his injury and disability and the November
12, 1997 alleged incident. 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.
"In order to carry [the] burden of proving an 'injury by
accident,' a claimant must prove that the cause of [the] injury
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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 Braithwaite's evidence sustained his 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).
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
ruling that Braithwaite failed to sustain his burden of proof,
the commission found as follows:
While [Braithwaite] testified that he told
[Thomas] Grant[, Sr.] about the incident,
the record shows that Grant was not at work
that day. [Kristin] Whirley knew that
[Braithwaite] had back problems, but she did
not know anything about a work-related
accident. Further, the medical records do
not corroborate [Braithwaite's] testimony of
an incident on November 12, 1997. When
[Braithwaite] saw Dr. [Beverly N.] Chambers
on November 13 and November 17, 1997, he did
not report a work-related incident or an
onset of back pain. The history taken for
the lumbar spine x-rays of November 17,
1997, noted left leg sciatica occurring "for
the past couple of weeks." The few
references to a work-related accident
involving the chains and straps appear to
relate to an incident in August 1997, and
not a second incident in November 1997. The
undated office note refers to changing
straps on August 12, 1997, and then pain
again in November 1997. [Braithwaite]
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indicated on December 5, 1997, that the
injury was a workers' compensation one, but
that he did not know how the accident
happened. Dr. [Patrick M.] Capone referred
to a work-related incident in October 1997.
While we do not doubt that [Braithwaite]
suffers back pain and symptoms, the evidence
does not establish that his condition arose
from a work-related incident on November 12,
1997, which is the alleged accident under
consideration.
The commission's findings are amply supported by the
record. In light of Braithwaite's uncorroborated testimony,
which was inconsistent with the testimony of other witnesses and
with the medical records, the commission, in its role as fact
finder, was entitled to reject Braithwaite's testimony and to
conclude that he failed to sustain his burden of proof. 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). Based
upon this record, we cannot find as a matter of law that
Braithwaite sustained his burden of proving that he incurred an
injury by accident arising out of and in the course of his
employment on November 12, 1997.
Because this ruling disposes of this appeal, we need not
address the issue concerning proof of causal connection. For
the reasons stated, we affirm the commission's decision.
Affirmed.
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