                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Willis


MARSHALL RONALD BRAITHWAITE
                                             MEMORANDUM OPINION*
v.   Record No. 2506-99-4                         PER CURIAM
                                              FEBRUARY 15, 2000
SMALLEY PACKAGE COMPANY, INC. AND
 MARYLAND CASUALTY COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Jimmy L. Hill; Roger Ritchie & Partners,
             P.L.C., on brief), for appellant.

             (William S. Sands, Jr.; Duncan and Hopkins,
             P.C., on brief), for appellees.


     Marshall R. Braithwaite contends that the Workers'

Compensation Commission erred in finding that he failed to prove

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

course of his employment on November 12, 1997; and (2) a causal

connection between his injury and disability and the November

12, 1997 alleged incident.      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.

     "In order to carry [the] burden of proving an 'injury by

accident,' a claimant must prove that the cause of [the] injury


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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 Braithwaite'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 Braithwaite failed to sustain his burden of proof,

the commission found as follows:

          While [Braithwaite] testified that he told
          [Thomas] Grant[, Sr.] about the incident,
          the record shows that Grant was not at work
          that day. [Kristin] Whirley knew that
          [Braithwaite] had back problems, but she did
          not know anything about a work-related
          accident. Further, the medical records do
          not corroborate [Braithwaite's] testimony of
          an incident on November 12, 1997. When
          [Braithwaite] saw Dr. [Beverly N.] Chambers
          on November 13 and November 17, 1997, he did
          not report a work-related incident or an
          onset of back pain. The history taken for
          the lumbar spine x-rays of November 17,
          1997, noted left leg sciatica occurring "for
          the past couple of weeks." The few
          references to a work-related accident
          involving the chains and straps appear to
          relate to an incident in August 1997, and
          not a second incident in November 1997. The
          undated office note refers to changing
          straps on August 12, 1997, and then pain
          again in November 1997. [Braithwaite]

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           indicated on December 5, 1997, that the
           injury was a workers' compensation one, but
           that he did not know how the accident
           happened. Dr. [Patrick M.] Capone referred
           to a work-related incident in October 1997.
           While we do not doubt that [Braithwaite]
           suffers back pain and symptoms, the evidence
           does not establish that his condition arose
           from a work-related incident on November 12,
           1997, which is the alleged accident under
           consideration.

     The commission's findings are amply supported by the

record.   In light of Braithwaite's uncorroborated testimony,

which was inconsistent with the testimony of other witnesses and

with the medical records, the commission, in its role as fact

finder, was entitled to reject Braithwaite's testimony and to

conclude that he failed to sustain his burden of proof.    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).     Based

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

Braithwaite sustained his burden of proving that he incurred an

injury by accident arising out of and in the course of his

employment on November 12, 1997.

     Because this ruling disposes of this appeal, we need not

address the issue concerning proof of causal connection.    For

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

                                                           Affirmed.




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