                      COURT OF APPEALS OF VIRGINIA


Present:    Judges Bumgardner, Humphreys and Senior Judge Hodges


AGEE'S INC. AND
 PROVIDENCE WASHINGTON INSURANCE COMPANY
                                             MEMORANDUM OPINION*
v.   Record No. 0280-02-3                         PER CURIAM
                                                AUGUST 6, 2002
KYLE BENTON McGUIRE


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Patricia C. Arrighi; Taylor & Walker, P.C.,
             on brief), for appellants.

             (Rhonda L. Overstreet; Lumsden, Overstreet &
             Hansen, on brief), for appellee.


     Agee's Inc. and its insurer (hereinafter referred to as

"employer") contend that the Workers' Compensation Commission

erred in finding that Kyle Benton McGuire (claimant) proved (1)

he sustained an injury by accident arising out of and in the

course of his employment on April 4, 2000; and (2) his

osteomyelitis of the spine, and subsequent disability, was

causally related to the laceration he sustained on his back as a

result of the April 4, 2000 injury by accident. 1    Upon reviewing


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Dr. Raymond V. Harron, claimant's treating physician,
described osteomyelitis as an infection of the bone, which can
be contracted in many different ways. One way would be when a
person gets a blood infection through a cut or laceration, and
then the infection settles in the bone.
the record and the parties' briefs, we conclude that this appeal

is without merit.    Accordingly, we summarily affirm the

commission's decision.      Rule 5A:27.

                       I.    Injury by Accident

     "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).     Factual findings made by the commission

will be upheld on appeal if supported by credible evidence.        See

James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382

S.E.2d 487, 488 (1989).

     On appeal, we view the evidence in the light most favorable

to the prevailing party below.      R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

     Claimant testified that before April 4, 2000, he had no

back problems, other than a "small muscle strain."     On April 4,

2000, between approximately 3:00 p.m. and 3:45 p.m., while at

work, he was leaning over an engine under the hood of a car,

when the hood blew shut on his back.      He immediately felt pain

in his mid-back, but walked around for a few minutes and then

went back to work.   At the end of his shift, when he leaned down

to pick up his toolbox, he could not move because of pain in his

mid-back where the hood had struck him.     He immediately reported
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the incident to the sales manager, who carried claimant's

toolbox to his father's car.    Claimant's father drove him home.

        Claimant testified that he had a "skinned mark, scrap

[sic]" on his back where the hood hit him.    He felt it, but

could not see it.    Claimant's father saw it.   That night,

claimant had trouble sleeping.    When he awoke, he could not

move.    Claimant's father took him to the emergency room.

        In his May 1, 2000 recorded statement given to the

insurance carrier, claimant described the incident consistent

with his hearing testimony.    He stated that the hood fell on his

back, and later, when he went to pick up the toolbox, he could

not move.

        In ruling that claimant sustained his burden of proving he

suffered an injury by accident on April 4, 2000, the commission

found as follows:

             [W]e agree with the deputy commissioner that
             the injury by accident, which occurred on
             April 4, 2000, when the hood fell on [the
             claimant's] back, resulted in the claimant's
             spinal infection and surgery. Although the
             history presented to the emergency room
             subsequent to the accident emphasized
             lifting up the toolbox as the inciting
             incident, in every recorded narrative of any
             length the claimant has repeated the same
             description of the hood incident. He gave
             this history to the insurance carrier in the
             recorded statement, as well as to the
             various medical experts who treated him.
             Moreover, the claimant's sworn testimony
             regarding the accident and the resulting
             laceration on his back is uncontradicted.


                                -3 -
     Claimant's uncontradicted testimony, which was corroborated

by his recorded statement and by various medical records,

constitutes credible evidence to support the commission's

findings.   The significance of claimant's focus on the lifting

of the toolbox in the early medical records was a matter for the

commission to weigh in assessing claimant's credibility.    It did

so and accepted claimant's testimony that the hood fell on his

back, causing a laceration and severe pain.   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).    Moreover, "[i]n

determining whether credible evidence exists, the appellate

court does not retry the facts, reweigh the preponderance of the

evidence, or make its own determination of the credibility of

the witnesses."   Wagner Enters., Inc. v. Brooks, 12 Va. App.

890, 894, 407 S.E.2d 32, 35 (1991).

                           II.   Causation

     In ruling that claimant sustained his burden of proving his

osteomyelitis and subsequent disability were causally related to

the April 4, 2000 injury by accident, the commission found as

follows:

            Dr. Harron, the claimant's treating
            physician who performed the surgery, has
            stated unequivocally that this incident
            caused the claimant's disability and need
            for surgery. This opinion is not
            contradicted by any treating physician. The
            only contrary evidence is the opinion of
                                 -4 -
          Dr. [Murray J.] Goodman, who has never seen
          the claimant. It is well established that
          the Commission defers to the unequivocal
          opinion of the treating physician over the
          opinion of an independent medical examiner
          hired by one party who has not seen the
          claimant.

     Dr. Harron's medical reports, opinions, and deposition

testimony, coupled with claimant's testimony, constitute

credible evidence to support the commission's findings.    The

commission, as well as Dr. Harron, considered the significance

of the evidence of any cuts claimant may have had on his hands

in the past or at the time of the April 4, 2000 accident.

Dr. Harron still opined to a reasonable degree of medical

certainty that the pathogen entered claimant's blood stream as a

result of the April 4, 2000 incident, when the hood fell on his

back at about the level where his infection occurred, causing

the subsequent infection and disability.   As fact finder, the

commission was entitled to accept the opinion of Dr. Harron, the

treating physician, and to reject the contrary opinion of

Dr. Goodman, the independent medical examiner, who never

examined claimant.   "Questions raised by conflicting medical

opinions must be decided by the commission."   Penley v. Island

Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).




                              -5 -
     Because credible evidence supports the commission's

findings, they will not be disturbed on appeal.   Accordingly, we

affirm the commission's decision.

                                                           Affirmed.




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