                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Humphreys and Retired Judge Duff*


SAMUEL GARRETT PAYNE, JR.
                                             MEMORANDUM OPINION **
v.   Record No. 1382-01-1                         PER CURIAM
                                               OCTOBER 2, 2001
K. JONES HAULING, INC. AND
 FIRE & CASUALTY INSURANCE COMPANY
 OF CONNECTICUT


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Chandra L. Wilson; Rutter, Walsh, Mills &
             Rutter, L.L.P., on brief), for appellant.

             (Joseph F. Giordano; Thomas E. Dempsey;
             Semmes, Bowen & Semmes, P.C., on brief), for
             appellees.


     Samuel Garrett Payne, Jr. contends the Workers'

Compensation Commission erred in finding that he failed to prove

he sustained an injury by accident arising out of his employment

on August 30, 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.




     *
       Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
     **
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     "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 Payne'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 Payne failed to prove he sustained a compensable

injury by accident on August 30, 1999, the commission found as

follows:

           The record contains several inconsistencies
           regarding the date of, and the circumstances
           following, the alleged incident. The
           claimant testified on direct examination
           that his feet slipped off the tailgate on
           August 30, 1999, due to an oily, muddy
           substance on the back of his truck. On
           cross-examination, however, he stated that
           he was not sure how he fell and that
           "evidently" either his hand or feet slipped
           off the back of the truck. Significantly,
           the claimant testified that the fall caused
           him to lie on his back for at least ten
           minutes and that he then finished this task
           and returned home early, arriving by 9 a.m.
           To the contrary, his girlfriend testified
           that the claimant arrived home from work

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          later that evening at his regular time.
          O'Ryan Jones testified that he observed the
          claimant working on August 30, 1999, but he
          did not recall any report about a fall.
          Similarly, Kenneth Jones denied being
          informed about the alleged fall until
          October 1, 1999, and was told by the
          claimant that the date of accident was
          September 20, 1999. Jones also testified
          that no muddy substance was hauled on the
          alleged date of injury.

          The [medical] record contains evidence that
          the claimant had been complaining of arm and
          hand tingling for several weeks prior to the
          alleged incident. Dr. [Charles] Ellis'
          office notes reflect frequent contact with
          the claimant from September through December
          1999, during which time there was no mention
          of a fall, a work-related incident, or that
          the claimant complained of any back or neck
          problems. When the claimant received
          emergency medical care on September 10,
          1999, he complained of abdominal cramps,
          lower extremity numbness and weakness of
          several months' duration, constipation, and
          nausea, but apparently did not mention a
          recent work-related fall. Thereafter, on
          October 6, 1999, the claimant's complaints
          to the emergency room staff included
          constipation, vomiting, diabetes, high blood
          pressure, and problems with his balance.
          Again, he made no complaints regarding any
          musculoskeletal problems, and his back
          examination was reported as normal. The
          claimant's first apparent mention of a
          work-related fall was to Dr. [Wallace K.]
          Garner on October 8, 1999, but he provided
          no date of accident, and Dr. Garner's notes
          and reports indicate the claimant's report
          of a fall in September 1999.

     The commission's findings are supported by credible

evidence in the record.   The commission concurred in the deputy

commissioner's finding that Payne was not a credible witness

when he testified about events he said occurred on August 30,

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1999.    The record contains no corroboration for Payne's

testimony; it contains inconsistencies between Payne's testimony

and the witnesses' testimony; and it lacks any medical history

regarding a work-related injury until October 8, 1999.      The

commission, as fact finder, was entitled to conclude that

Payne's testimony was not credible.      See Goodyear Tire & Rubber

Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987)

(holding that credibility determinations are within the fact

finder's exclusive purview.)

        Based upon this record, we cannot find as a matter of law

that Payne's evidence sustained his burden of proof.

Accordingly, we affirm the commission's decision that he failed

to prove he sustained a compensable injury by accident on August

30, 1999.

                                                            Affirmed.




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