                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


BROOKE DALE MOYER

v.   Record No. 2620-96-3                      MEMORANDUM OPINION *
                                                   PER CURIAM
WHITT CARPET & TILE AND                         FEBRUARY 25, 1997
 GRANITE STATE INSURANCE COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           (Ronald D. Henderson; Pendleton, Garrett &
           Henderson, P.C., on brief), for appellant.
           (Matthew W. Broughton; Monica L. Taylor;
           Gentry, Locke, Rakes & Moore, on brief), for
           appellees.



     Brooke Dale Moyer contends that the Workers' Compensation

Commission erred in finding that he failed to prove that he

sustained an injury by accident arising out of his employment on

June 24, 1995.   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.     Rule

5A:27.

     To recover benefits, Moyer must establish that he suffered

an "injury by accident arising out of and in the course of [his]

employment," Code § 65.2-101, and "that the conditions of the

workplace or some significant work related exertion caused the

injury."   Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482,

484, 382 S.E.2d 305, 306 (1989).   "The phrase arising 'out of'
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
refers to the origin or cause of the injury."     County of

Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74

(1989).    "Whether an injury arises out of the employment is a

mixed question of law and fact and is reviewable by the appellate

court."    Plumb Rite, 8 Va. App. at 483, 382 S.E.2d at 305.

However, unless we conclude that Moyer proved, as a matter of

law, that his employment caused his injury, the commission's

finding is binding and conclusive on appeal.     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 party prevailing below.     R.G. Moore Bldg. Corp. v.

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

telephone message left by Moyer with his employer several days

after the accident, he stated that:
          [T]his was something that was already in the
          making of happening and it just so happened
          it happened when we were unloading that
          truck. But the, ah, bottom line is I was
          splitting wood all the way up to the day
          before that and never felt a pain so that
          particular day all I did was bent [sic] or
          turned the wrong way and it caused me to
          throw my back out.


     In denying Moyer's application, the commission found as

follows:
                 We conclude from this record that
            [Moyer] did have a [sic] injury at work on
            June 24, 1995, as alleged. However, the
            evidence does not preponderate to show that
            [Moyer] was injured while actually attempting
            to lift one of the heavy boxes. It is at
            least equally probable that [Moyer] suffered
            his injury as he merely bent to perform the
            task, perhaps because his back was stressed


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          and weakened by the cumulative activities
          that day and those preceding, as he suggests
          in his telephone message. As the Deputy
          Commissioner noted, an injury suffered while
          performing the simple and common acts of
          walking, bending, or turning, without any
          other contributing environmental factors,
          does not arise out of a risk or hazard of the
          employment.

               Where as here, [Moyer] has proved only
          that his injury resulted from one of two
          causes, one of which is compensable and one
          of which is not, he has not satisfied his
          burden to prove that his injury more probably
          that not arises out of his employment.

     In its role as fact finder, the commission was entitled to

give little weight to Moyer's hearing testimony in light of its

inconsistency with the telephone message.    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).   Based upon this

record, the commission could conclude that it was just as

probable that Moyer's injury resulted from activities the

preceding day and merely bending over.   Therefore, we hold that

Moyer failed to prove as a matter of law that his injury arose

out of his employment.

     For the reasons stated, we affirm the commission's decision.
                                                    Affirmed.




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