                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Humphreys and Retired Judge Duff*


TIMOTHY FLOYD DUNBAR
                                             MEMORANDUM OPINION **
v.   Record No. 2451-00-3                        PER CURIAM
                                              FEBRUARY 6, 2001
RLF IRON ERECTORS, INC. AND
 AMERICAN INTERSTATE INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Robert E. Evans, on brief), for appellant.

             (John C. Johnson; Catherine I. Henritze;
             Frith Anderson & Peake, P.C., on brief), for
             appellees.


     Timothy Floyd Dunbar contends the Workers' Compensation

Commission erred in finding that (1) he failed to prove his

fractured leg was causally related to his compensable injury by

accident; and (2) in the alternative, that if he fractured his

leg during a scuffle with a co-worker, the injury did not occur

in the course of his employment.     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.



     * Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
     **
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     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).    So

viewed, the commission found as follows:

          [A]n I-beam rolled on the claimant's foot,
          causing him pain. The claimant was the only
          one who said that the beam struck his lower
          leg. [Howard] Farris stated that the beam
          struck the claimant's foot and that he
          worked the rest of the day with a limp.
          [Kevin] Huber said that the beam fell on
          [claimant's] foot and ankle area in the
          morning and that he subsequently limped.
          Similarly, [Jonathan] Holliday testified
          that the claimant told him about the beam
          rolling on his foot around 10 or 11 a.m.
          [Fred] Hull confirmed that [claimant]
          desired medical attention because he was
          suffering pain and wanted his foot x-rayed.
          Based on the foregoing, we find that the
          claimant injured his left foot on the
          morning of June 2, 1999, when it was struck
          by an I-beam.

               However, there is no evidence to
          suggest that the injury to the foot
          necessitated any medical care or that it
          caused the tibia/fibula fracture and
          resultant disability. As stated above,
          everyone except the claimant testified that
          the I-beam struck his foot, and perhaps his
          ankle. It is uncontradicted that he
          continued to work and that he was able to
          scale a 40-foot ladder after the incident.
          Although the claimant limped after the
          morning incident, he was able to walk on his
          left leg until after the altercation with
          Hull later that evening. Significantly, Dr.
          [Ian D.] Archibald advised that it would be
          highly unlikely that [claimant] could have
          walked, even with a limp, with the type of
          injury he presented with at the hospital.




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               We also note that the history the
          claimant provided to his health care
          professionals was incomplete. He
          consistently reported his injury occurred at
          5 p.m. Witness testimony directly
          contradicts this timeframe. Further, no
          medical report mentioned the scuffle or that
          the claimant fell to the ground, which
          caused greater pain than that related to the
          morning incident.

     As fact finder, the commission was entitled to reject

Dunbar's testimony and to accept the testimony of his co-workers

that the I-beam either rolled over or struck Dunbar's foot and

that he continued to work after that incident.   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).

     It is equally well settled that the commission's findings

of fact, if supported by credible evidence, are conclusive and

binding on appeal.   See Code § 65.2-706; Ivey v. Puckett Constr.

Co., 230 Va. 486, 488, 338 S.E.2d 640, 641 (1986).    In light of

the testimony of Dunbar's co-workers, Dr. Archibald's opinion,

and Dunbar's failure to report the scuffle incident to the

initial medical providers, we cannot find as a matter of law

that Dunbar sustained his burden of proving that his fractured

leg was causally related to the I-beam incident.     See Tomko v.

Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835

(1970).




                               - 3 -
                                  II.

     "To qualify for workers' compensation benefits, an

employee's injuries must result from an event 'arising out of'

and 'in the course of' the employment."        Pinkerton's, Inc. v.

Helmes, 242 Va. 378, 380, 410 S.E.2d 646, 647 (1991).       "An

injury 'occurs in the "course of employment" when it takes place

within the period of employment, at a place where the employee

may be reasonably expected to be, and while he is fulfilling the

duties of his employment or is doing something which is

reasonably incidental thereto.'"        Lucas v. Lucas, 212 Va. 561,

563, 186 S.E.2d 63, 64 (1972) (quoting Conner v. Bragg, 203 Va.

204, 207-08, 123 S.E.2d 393, 396 (1962)).       "A finding by the

Commission that an injury [did not arise] out of and in the

course of employment is a mixed finding of law and fact and is

properly reviewable on appeal."     Dublin Garment Co., Inc. v.

Jones, 2 Va. App. 165, 167, 342 S.E.2d 638, 638 (1986).

     Hull testified that after the workers arrived at the motel

on the evening of June 2, 1999, he and Dunbar drank an

eighteen-pack of beer.   He and Dunbar argued because Dunbar

wanted Hull to take him to the hospital to have his foot

x-rayed.   Hull testified that when he refused because he did not

want to drive after he had been drinking, he and Dunbar tussled.

During the tussling they fell over a curb.       Holliday confirmed

that Hull and Dunbar argued and tussled after drinking beer.


                               - 4 -
Indeed, Dunbar confirmed these events and testified that, when

he fell onto the pavement, Hull fell on him.   Dunbar does not

dispute that his condition was worse after the scuffle than when

they had arrived at the motel.

     The commission found that the altercation occurred after

Dunbar drank numerous beers and that he actively participated in

horseplay.    Thus, the commission ruled that even if Dunbar and

Hull were arguing about a work-related matter when his leg was

fractured, "any injury arising from the scuffle occurred outside

the scope of employment."    See Mullens v. Westmoreland Coal Co.,

10 Va. App. 304, 307-08, 391 S.E.2d 609, 611 (1990).    See also

Kensington Associates v. West, 234 Va. 430, 436, 362 S.E.2d 900,

901 (1987).

     The commission's factual findings are supported by the

testimony of Dunbar, Hull, and Holliday.    Based upon credible

testimony, the commission could reasonably conclude that when

Dunbar injured his leg during the scuffle, he was not fulfilling

the duties of his employment or doing something which was

reasonably incidental thereto.    Based upon this record, we

cannot find as a matter of law that Dunbar sustained his burden

of proving that any injury he suffered during the scuffle

occurred in the course of his employment.

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

                                                         Affirmed.


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