                      COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bumgardner and Lemons


PATRICK FRANK BRYAN
                                             MEMORANDUM OPINION*
v.   Record No. 1800-98-2                         PER CURIAM
                                               OCTOBER 19, 1999
HIGHWAY CARRIERS, INC. AND
 NATIONAL UNION FIRE INSURANCE
 COMPANY OF PITTSBURGH


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Patrick F. Bryan, pro se, on brief).

             No brief for appellees.


     Patrick Frank Bryan (claimant) contends that the Workers’

Compensation Commission (commission) erred in (1) denying his

request for a rehearing based on after-discovered evidence; (2)

failing to strike the defenses of Highway Carriers, Inc. and its

insurer (hereinafter referred to as "employer") on the ground

that claimant did not receive employer's answers to his

interrogatories and employer failed to notify claimant of its

intent to rely on the defense that he had deviated from his

route at the time of his accident; (3) finding he failed to

prove he sustained an injury by accident arising out of and in

the course of his employment on September 22, 1997; and (4)

finding that employer proved that he committed willful


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
misconduct pursuant to Code § 65.2-306.      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.

                                  I.

     As the party seeking to reopen the record on the basis of

after-discovered evidence, claimant bore the burden of proving

that "(1) the evidence was obtained after the hearing; (2) it

could not have been obtained prior to the hearing through the

exercise of reasonable diligence; (3) it is not merely

cumulative, corroborative or collateral; and (4) it is material

and should produce an opposite result before the commission."

Williams v. People's Life Ins. Co., 19 Va. App. 530, 532, 452

S.E.2d 881, 883 (1995).

     In denying claimant's request on review for the opportunity

to present additional witness testimony and a Department of

Motor Vehicles (DMV) report to rebut evidence presented at the

hearing, the full commission found as follows:

          The claimant did not present the DMV report
          to the Commission before the record closed.
          We do not find that the claimant who was
          represented by counsel would be unduly
          surprised that his driving record may be
          relevant to a claim originating from a motor
          vehicle accident. Moreover, this evidence
          existed and was readily obtainable prior to
          the Hearing. The failure to obtain
          testimony and records that were available
          and known does not satisfy the diligence
          requirement. . . . With regard to

                                 - 2 -
          witnesses, the legally-represented claimant
          was aware that he could present other
          witnesses. He replied in his answers to
          interrogatories that no other witnesses
          would testify. By letter of December 12,
          1997, the Deputy Commissioner requested that
          the claimant submit a synopsis of expected
          witness testimony, if any. The proposed new
          evidence fails to qualify as essential
          after-discovered evidence. We do not find
          that the DMV report and the witness
          testimony are of such crucial character and
          that this evidence could not have been
          obtained prior to the record closing through
          the exercise of reasonable diligence.

     Credible evidence supports the commission's findings.

Based upon these findings, the commission could conclude that

claimant had ample opportunity to obtain the DMV report and the

witnesses' testimony before the hearing, but failed to do so.

Because claimant did not satisfy the second prong of the

Williams test, the commission did not err in denying his request

for a rehearing to introduce after-discovered evidence.

                               II.

     We find, as did the commission, that claimant waived any

objection regarding employer's answers to interrogatories and

notification of the deviation defense, by failing to object at

the hearing when the deputy commissioner recited employer's

defenses, including the deviation defense.   As the commission

noted, at the hearing, claimant, who was represented by counsel,

"did not claim to be surprised and did not move to strike the




                              - 3 -
defense.   Also, they did not raise any objections at the Hearing

regarding the interrogatories or the answers."

     Furthermore, claimant initiated discussion regarding his

route of travel during his direct testimony and was questioned

regarding his route in his deposition prior to the hearing.

Under these circumstances, the commission did not err in finding

that "claimant had sufficient opportunity to address and prepare

for the deviation defense."

                                 III.

     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).     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.     See City of Richmond

v. Braxton, 230 Va. 161, 163-64, 335 S.E.2d 259, 261 (1985).

     "In order to establish entitlement to compensation

benefits, the claimant must prove, by a preponderance of the

evidence, an injury by accident which arose out of and in the

course of his employment."    Classic Floors, Inc. v. Guy, 9 Va.

App. 90, 95, 383 S.E.2d 761, 764 (1989).    Unless we can say as a

matter of law that claimant met his burden of proof, the

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




                                 - 4 -
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d

833, 835 (1970).

     "'[A]n accident 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

reasonably fulfilling the duties of his employment or is doing

something which is reasonably incidental thereto.'"   Thore v.

Chesterfield County Bd. of Supervisors, 10 Va. App. 327, 331,

391 S.E.2d 882, 885 (1990) (citations omitted).

     The issue of whether employer had instructed claimant to

drive his truck on a specific route and whether, at the time of

his accident, claimant had substantially deviated from that

route, thereby removing him from the course of his employment,

depended solely upon the credibility of the witnesses.    The

commission summarized the conflicting testimony and its findings

as follows:

          The claimant testified that the employer
          told him to take U.S. Route 17. This
          testimony contradicts [Randall L.]
          Huntsinger's testimony that the claimant was
          told to travel I-95 and to avoid U.S. Route
          17. Faced with these inconsistencies, the
          Deputy Commissioner determined that
          Huntsinger's testimony was the more credible
          and that his "demeanor and the presentation
          of his testimony" was "far more convincing"
          than the claimant's. . . .

              *    *     *      *      *      *       *

               . . . Also, even if we accept
          [claimant's] argument that he drove the

                              - 5 -
          alternative route to avoid weight scales, as
          directed by his employer, this testimony is
          inconsistent with his admission that his
          load was within weight limitations. If the
          claimant's load was not overweight, there
          was no reason for him to detour from I-95 in
          order to avoid the scales. Also, the detour
          was significant. It seems inconsistent for
          such a detour to be in the employer's
          interest when overhead and costs are
          considered in conjunction with the
          claimant's testimony that the load was not
          overweight.

           *      *      *      *      *      *       *

               The claimant testified at the Hearing
          that he was at the accident location as a
          result of the route he took pursuant to the
          employer's instructions. This represents a
          factual conflict that was decided by the
          Deputy Commissioner adversely to the
          claimant. The claimant has not alleged that
          he was on the entry ramp for personal
          comfort. He has not even testified to a
          minor deviation. On the contrary, the
          claimant's substantial deviation from the
          employer-directed route led to the location
          of the accident. . . . At the time of the
          accident, the claimant had not yet returned
          to the roadway which the employer required
          him to travel. Instead, he was traveling a
          route which the Deputy Commissioner found
          that the employer had expressly forbidden.

     The full commission relied upon the deputy commissioner's

credibility determination in reaching its decision.   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, the commission was entitled to accept

Huntsinger's testimony and to conclude that claimant's testimony


                               - 6 -
was not credible.   Accordingly, we cannot find as a matter of

law that claimant's evidence proved that his accident arose out

of and in the course of his employment.   See Grimes v.

Janney-Marshall Co., 183 Va. 317, 32 S.E.2d 76 (1944)

(claimant's deviation, without permission, from

employer-mandated route rendered injuries sustained in truck

accident not compensable).

                                IV.

     The commission denied compensation to claimant for the

reasons set forth in part III. of this opinion.   The commission

did not deny compensation to claimant based upon a willful

misconduct defense.   Accordingly, we need not address this issue

on appeal.

     For the reasons stated, we affirm the commission's

decision.

                                                          Affirmed.




                               - 7 -
