                    COURT OF APPEALS OF VIRGINIA

Present:   Judges Bray, Annunziata and Overton


THOMAS JEFFREY DETERMAN
                                                 MEMORANDUM OPINION *
v.   Record No. 0438-98-4                             PER CURIAM
                                                   AUGUST 25, 1998
WILLARD CHRISTOPHER THOMPSON/ALL STAR MOVERS
 AND HARLEYSVILLE MUTUAL INSURANCE COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           (James F. Green; Ashcraft & Gerel, on brief),
           for appellant.
           (Elizabeth A. Zwibel; Siciliano, Ellis,
           Dyer & Boccarosse, on brief), for appellees.



     Thomas J. Determan ("claimant") contends that the Workers'

Compensation Commission ("commission") erred in finding that (1)

he failed to prove that he sustained an injury by accident

arising out of his employment on November 23, 1996; and (2)

Willard Christopher Thompson ("employer") was not estopped from

denying compensability of the claim under the holding in National
Linen Serv. v. McGuinn, 5 Va. App. 265, 362 S.E.2d 187 (1987).

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.   Injury by Accident/Arising Out Of

     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).       "To
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
prove the 'arising out of' element, [in a case involving injuries

sustained from falling at work, claimant] must show that a

condition of the workplace either caused or contributed to [his]

fall."     Southside Virginia Training Ctr. v. Shell, 20 Va. App.

199, 202, 455 S.E.2d 761, 763 (1995) (citing County of

Chesterfield v. Johnson, 237 Va. 180, 184, 376 S.E.2d 73, 76

(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 Plumbing Serv. v. Barbour, 8 Va. App. 482,

483, 382 S.E.2d 305, 305 (1989).    However, unless we conclude

that claimant proved, as a matter of law, that his employment

caused his injury, the commission's finding is binding and

conclusive on appeal.     See Tomko v. Michael's Plastering Co., 210

Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     At the May 16, 1997 hearing, claimant testified that on

November 23, 1996, he was repairing a truck for employer.     As he

stepped from the truck top to a pallet that had been raised up on

a forklift, the pallet slipped.    The next thing he remembered was

when he awoke while lying on the floor.     None of claimant's

co-workers witnessed the incident.      In claimant's March 6, 1997

deposition, he was repeatedly asked to recite the events leading

up to his fall.    He testified that he remembered kneeling on top

of the truck while repairing the holes, but could not remember

anything else until he was placed on an ambulance stretcher.

Claimant asserted at the hearing that he remembered the complete



                                  -2-
details of the accident after he gave his deposition testimony.

The medical records consistently reported that claimant could not

remember the fall or the events immediately before it occurred.

No medical evidence showed that claimant's memory slowly improved

following the fall.

     Claimant's co-worker, William B. Logan, who found claimant

on the floor after the fall, testified that claimant told him

that he did not know what happened, but that he thought he fell.

Claimant also told Logan at the hospital that he could not

remember anything regarding the fall.
     In denying claimant's application, the commission rejected

claimant's hearing testimony, finding that claimant was not

credible.    In so ruling, the commission found as follows:
                 Given this late change in the claimant's
            recollection, unsupported by any concomitant
            cognitive change reported in the medical
            record, we do not find his testimony credible
            regarding the circumstances leading to his
            fall. It is noted that the Deputy
            Commissioner did not find his testimony to be
            credible. On Review, the claimant asserts
            that his recorded statement given to the
            carrier on December 12, 1996, is consistent
            with his Hearing testimony. However, in that
            interview, he stated only that, "I
            think . . . I was trying to step, . . . "
            onto the pallet, and "I guess the pallet
            moved . . ." (Statement at 2). It is clear
            from the context and wording of the statement
            that the claimant was speculating on the
            cause of his fall, rather than stating a
            cause. He later indicated in his deposition
            testimony that he was unsure of the cause of
            his fall.


     It is well settled that the determination of a witness'




                                 -3-
credibility is 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).   In light of the inconsistencies in the

record, the commission had ample reason to disbelieve claimant's

hearing testimony.   Absent claimant's hearing testimony, his fall

was unexplained.   Because claimant failed to present credible

evidence to prove that his employment exposed him to a particular

danger from which he was injured, we cannot find as a matter of

law that claimant's evidence sustained his burden of proof.
                           II.   Estoppel

     In denying claimant's assertion that employer be estopped

from denying compensability of the claim, the commission found as

follows:
                The fact situation presented here does
           not lead us to conclude that the employer
           asserted defenses in an effort to avoid
           shifting of the burden of proof under
           McGuinn. The record establishes that the
           defenses raised were viable, given the state
           of the evidence. We further note that the
           employer promptly notified both the
           Commission and the claimant that it was no
           longer accepting compensability of the claim.
            The employer denied the claim within three
           months of the accident and within one month
           of the filing of the Claim for Benefits.
           Also, the fact that the employer paid wages
           in this case does not evidence an intent to
           accept the claim. The record reflects that,
           prior to the accident, the employer paid full
           wages to the claimant during an extended
           period of absence, even though the claimed
           disability was obviously not work-related.
           There is no evidence that the impetus for
           paying full wages after the alleged work
           injury was for any reason other than
           friendship, which prompted the previous
           payments.


                                 -4-
               No Memorandum of Agreement or Agreed
          Statement of Fact had been submitted by
          either party, and no award had been entered
          by the Commission before the employer
          indicated that it was denying the
          compensability of the claim.


     The commission's findings are amply supported by the record.

Nothing in the record indicates that employer denied the claim in

an effort to circumvent the holding in McGuinn and shift the

burden of proof.   Based upon this record, the commission did not

err in holding that employer was not estopped from denying

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

                                                        Affirmed.




                                -5-
