                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bray and Senior Judge Overton


JAMES R. MILAM
                                             MEMORANDUM OPINION*
v.   Record No. 1115-01-3                         PER CURIAM
                                               AUGUST 28, 2001
CONSOLIDATION COAL COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (S. T. Mullins; Street Law Firm, on brief),
             for appellant.

             (Michael F. Blair; Lisa Frisina Clement;
             PennStuart, on brief), for appellee.


     James R. Milam (claimant) contends that the Workers'

Compensation Commission 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 January 24, 2000.       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

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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) (citations omitted).    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).

     In denying claimant's application, the commission found as

follows:

             The testimony of Lee Blackburn and Edward
             Davidson confirms that the claimant's back
             injury occurred gradually throughout his
             shift on January 24, 2000. Each testified
             that the claimant described his backache as
             progressively worsening as he continued to
             shovel coal and rock. . . . The claimant in
             the present matter has presented no . . .
             credible evidence of a specific injury.

                  The medical evidence supports this
             conclusion. Dr. [Jim C.] Brasfield took a
             thorough history from the claimant and noted
             the claimant's back tightened after the meal
             break. The pain worsened as he continued
             until he could shovel no more due to
             discomfort. While other doctors related the
             injury to an immediate onset of pain, their
             records do not indicate a complete history
             in which the claimant described frequent
             backaches when he shoveled, coupled with
             progressively worsening backache on January
             24, 2000. We find Dr. Brasfield's
             examination notes to be more thorough and
             complete than those of Dr. [Tushar T.] Patel
             or Dr. [Syed A.] Zahir.

                  The claimant adamantly denies ever
             speaking to Lee Blackburn regarding the

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             injury. If true, it is not clear how
             Blackburn would have such a detailed
             knowledge of the incident and injury. As
             the deputy commissioner did, we accord
             greater weight to the witness testimony and
             the records of Dr. Brasfield.

        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).    As fact finder, the commission was entitled to accept

the testimony of Blackburn and Davidson and to reject any

contrary testimony of claimant.    In addition, the commission was

free to weigh the medical evidence and to give more probative

weight to Dr. Brasfield's medical history than to that of Drs.

Patel and Zahir.    "Medical evidence is not necessarily

conclusive, but is subject to the commission's consideration and

weighing."     Hungerford Mechanical Corp. v. Hobson, 11 Va. App.

675, 677, 401 S.E.2d 213, 215 (1991).

        In light of the testimony of Blackburn and Davidson and

Dr. Brasfield's medical history, we cannot find as a matter of

law that claimant's evidence sustained his burden of proving

that his injury was caused by a specific identifiable incident

or sudden precipitating event occurring at work on January 24,

2000.

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

                                                     Affirmed.




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