                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Willis, Frank and Clements


KIMBERLY E. MARTIN
                                             MEMORANDUM OPINION*
v.   Record No. 0582-01-3                         PER CURIAM
                                                JULY 17, 2001
TOWN OF PULASKI AND
 VIRGINIA MUNICIPAL LEAGUE


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Deborah W. Dobbins; Erin E. Slusser; Gilmer,
             Sadler, Ingram, Sutherland & Hutton, on
             brief), for appellant.

            (S. Vernon Priddy III; P. Dawn Bishop;
            Mark M. Caldwell III; Sands, Anderson, Marks &
            Miller, on brief), for appellees.


     Kimberly E. Martin (claimant) contends the Workers'

Compensation Commission erred in (1) adopting the deputy

commissioner's credibility determination rather than performing

its own independent de novo review of the evidence; and (2)

finding claimant was not credible and she failed to prove that

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

course of her employment on November 17, 1998.      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.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                I.

     The commission recited in its opinion that it was reluctant

to reverse the deputy commissioner's factual findings unless

plainly in error and that it would defer to the deputy

commissioner's credibility determinations in most instances.

However, the record plainly shows that the commission

independently reviewed the evidence in concluding that the

deputy commissioner's determination was not "plainly in error."

     The commission's opinion thoroughly recites the testimony

of the witnesses, claimant's deposition testimony, the content

of the Quick-Fax Report, and the content of the medical records.

The commission recognized that the issue of whether claimant

proved a compensable injury by accident was factual and depended

largely upon her credibility.   Regardless of the commission's

citation to Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App.

374, 363 S.E.2d 433 (1987), aff'd after remand, 9 Va. App. 120,

384 S.E.2d 333 (1989), and Virginia Real Estate Board v. Kline,

17 Va. App. 173, 435 S.E.2d 596 (1993), its opinion, taken as a

whole, unequivocally shows that the commission weighed the

testimony of the witnesses and the content of the medical

records and agreed with the deputy commissioner's determination

that claimant's testimony was not credible.

     In short, the full commission simply found no reason to

reverse the deputy commissioner's credibility determination and

did not err by adopting the deputy commissioner's findings
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rather than reversing his decision.      Goodyear Tire prohibits the

commission from arbitrarily disregarding the deputy

commissioner's credibility determination where it is based upon

demeanor or appearance.   5 Va. App. at 382, 363 S.E.2d at 437.

However, nothing in Goodyear Tire prohibits the commission from

weighing the evidence and adopting the deputy commissioner's

credibility determination where it is based upon the substance

of the witnesses' testimony.

     Accordingly, we find no merit in claimant's argument that

the commission applied an incorrect standard of review in

rendering its decision affirming the deputy commissioner's

decision.

                                  II.

     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 her burden of proof, the

commission's findings are binding and conclusive upon us.      See


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Tomko v. Michael's Plastering. Co., 210 Va. 697, 699, 173 S.E.2d

833, 835 (1970).

     The commission ruled that claimant failed to prove that she

was injured as a result of a specific incident at work on

November 17, 1998.   As the basis for its decision, the

commission made the following factual findings:

               [Claimant] testified under oath that
          she felt a pop or pull when her arm twisted
          while engaged in the "chicken wing"
          manuever. . . . [S]he did not reference
          this particular detail about the injury in
          her initial comment to Sergeant [Jim]
          Gregory, Dr. [James P.] Jonak, or her
          physical therapist.

               In the claimant's deposition testimony,
          she identified a specific instance during
          the performance of a specific maneuver when
          she felt her shoulder pop and pull. She
          recalled that incident occurred on the
          second day of a five-day training program at
          approximately 2 or 3 p.m. Although the
          claimant said that her shoulder hurt
          immediately and at the Hearing, testified
          that she "knew that [she] had hurt [her] arm
          . . ." she did not report the injury until
          the training course was over. Although she
          purportedly knew what had caused her arm to
          hurt, she never reported this specific,
          identifiable event to Sergeant Gregory, Dr.
          Jonak, or her physical therapist.

               Gregory testified that when the
          claimant told him that she thought she had
          pulled a muscle in her shoulder and needed
          to see a doctor, she did not tell him, and
          he did not know, that the problem was
          work-related. He said that several months
          later, when he reviewed the "Quick Fax
          Report," he thought that she had been
          injured at work, but that the injury
          developed over the course of the five-day
          training program. Gregory said that he was
                               - 4 -
           not aware of a specific event that caused
           the claimant's injury.

                Dr. Jonak's initial treatment record of
           December 11, 1998, reflects that the
           claimant had been "doing a lot of physical
           activity to help build her upper body
           strength. . . ." and was having left
           shoulder discomfort. There is no mention of
           the five-day training program or of the
           specific injury she alleges occurred on the
           second day of that program. The physical
           therapist's December 15, 1998, report
           reflects that four weeks prior, the claimant
           was in a defensive tactics course, but noted
           that she did not notice any soreness until
           the next morning.

                . . . [N]early a year after the
           accident, in a September 2, 1999 "Quick-Fax
           Report," claimant reported that she "[d]id
           not realize . . ." that she had injured
           herself and "just thought [her] muscles were
           very sore."

(Deposition citations omitted.)

     The commission's findings are amply supported by the

record.   As fact finder, the commission was entitled to reject

claimant's hearing and deposition testimony that a specific

incident occurred.   It is well settled that credibility

determinations are within the fact finder's exclusive purview.

Goodyear Tire, 5 Va. App. at 381, 363 S.E.2d at 437.      In this

instance, the issue of whether claimant sustained an injury due

to a specific identifiable incident occurring at work on

November 17, 1998 was dependent upon her credibility.     The

commission, in considering the testimony of the witnesses, the

content of the Quick-Fax Report, and the content of the medical


                               - 5 -
records, found that claimant's evidence was insufficient to

establish her claim.

     In light of Gregory's testimony, the content of the

Quick-Fax Report, and the lack of any history of a specific

incident in Dr. Jonak's or the physical therapist's medical

reports, we cannot find as a matter of law that claimant's

evidence sustained her burden of proof.

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

                                                           Affirmed.




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