                     COURT OF APPEALS OF VIRGINIA


Present:    Chief Judge Fitzpatrick, Judge Bumgardner and
            Senior Judge Hodges


FREDERICK DARDEN
                                             MEMORANDUM OPINION*
v.   Record No. 1132-00-2                         PER CURIAM
                                              SEPTEMBER 19, 2000
MACK JIMMY, INC., LUCK STONE CORP.,
 HARTFORD CASUALTY INSURANCE CO. AND
 UNINSURED EMPLOYER'S FUND


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Frederick Darden, pro se, on briefs).

             (Roger L. Williams; John T. Cornett, Jr.;
             Williams, Lynch & Whitt, on brief), for
             appellees Luck Stone Corp. and Hartford
             Casualty Insurance Co.

             (Mark L. Earley, Attorney General; Richard L.
             Walton, Jr., Senior Assistant Attorney
             General; John J. Beall, Jr., Senior Assistant
             Attorney General; Christopher D. Eib,
             Assistant Attorney General, on brief), for
             appellee Uninsured Employer's Fund.

             No brief for appellee Mack Jimmy, Inc.


     Frederick Darden (claimant) contends that the Workers'

Compensation Commission (commission) (1) erred in finding that

he failed to prove he sustained an injury by accident arising

out of and in the course of his employment on March 12, 1998;

and (2) denied him due process of the law.     Upon reviewing the


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
record and the briefs filed by claimant, the Uninsured

Employer's Fund, Luck Stone Corp. and Hartford Casualty

Insurance Co., we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision.       See

Rule 5A:27. 1

                          Injury By Accident

         "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 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).

     The commission ruled that claimant did not prove that he

was injured as he described in his testimony.      In so ruling, the

commission found as follows:



     1
       We deny the motions to dismiss filed by Luck Stone Corp.
and Hartford Casualty Insurance Co.


                                 - 2 -
Much of claimant's testimony . . . was
contradicted by the other witnesses. For
example, the claimant stated that he told
Ms. [Kelli] Callahan that he was injured.
Ms. Callahan testified, however, that the
claimant never reported any injury to her,
nor did he appear hurt when they spoke after
the alleged incident.

     Similarly, the claimant stated that he
told Mrs. [Sharaf] Ghazanfari that he was
injured when he and Mr. Ghazanfari returned
from Luck Stone on the day of the incident.
Mrs. Ghazanfari, however, stated that the
first time she learned that the claimant was
injured was when she received a bill from
Henrico Doctor's Hospital. Her testimony
was corroborated by her husband . . . .

     Moreover, the claimant's description of
the alleged accident was called into
question by several of the witnesses. Ms.
Callahan testified that the claimant was
"way underweight" when he returned to the
scales after being told that he was
overweight. Ms. Callahan's testimony was
that she would not send a driver back to get
more stone if the driver was less that
approximately 1000 pounds underweight. This
was corroborated by a ticket from another
March 12, 1998, load of gabion stone, in
which the driver was dispatched although the
truck was 1260 pounds underweight. The
claimant stated that he was told to decrease
the truck's load because it was "way
overweight." If the claimant had thrown
rocks off as he stated that he did, he would
have had to decrease his weight by
approximately 2000 pounds, using Ms.
Callahan's approximate figures.

     . . . [A] more reasonable explanation
of what happened was that the claimant
dumped some of the load by opening the
tailgate and raising the bed of the truck.
This was the testimony of Mr. [George]
Tyler, who stated that he witnessed the
claimant decreasing the truck's load this
way. He also stated that he did not see the

                    - 3 -
          claimant manually throw rocks from the
          truck's bed, or even climb onto his truck.
          The claimant, however, stated that he was in
          the bed of his truck throwing off rocks
          three times that morning.

     As fact finder, the commission was entitled to accept the

testimony of Callahan, Mr. and Mrs. Ghazanfari, and Tyler and to

reject claimant's testimony regarding his injury.    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 claimant sustained an injury

due to a specific identifiable incident occurring at work on

March 12, 1998 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 his claim.   In light of the inconsistencies between

his testimony and the testimony of the other witnesses, we

cannot say as a matter of law that claimant's evidence sustained

his burden of proof.

                              Due Process

     We find nothing in the record to support claimant's

allegation that he was denied due process of law.    Claimant was

afforded a full and fair opportunity to be heard pursuant to the

commission's established rules and procedures.




                                 - 4 -
For these reasons, we affirm the commission's decision.

                                                   Affirmed.




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