Opinion
Record No. 0326-93-2
August 3, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Robert L. Flax, on brief), for appellant.
(Frederick M. Bruner; Law Offices of E. Wayne Posell, on brief), for appellees.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Hipolito Arroyo contends that the commission erred in finding that (1) he failed to prove that he sustained a specific, identifiable injury to his head at work; and (2) he failed to prove that his head injury was causally related to the blow to his head at work. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
On appellate review, we will construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp., 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Factual findings of the commission will not be disturbed on appeal, if based upon credible evidence. Hercules, Inc. v. Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991). Unless we can say as a matter of law that Arroyo's evidence was sufficient to sustain his burden of proof, then the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Arroyo testified that he injured his head while working for his employer on March 16, 1992. He described sustaining a severe blow to the right side of his head when he hit it on an overhead pipe. He was wearing a hard hat. He claimed that he felt pain on the right side, and that his head was then jammed to the left, and he felt pain on the left side of his neck. At the hearing, Arroyo testified that this severe blow caused him to drop the insulation he was carrying. However, in an earlier deposition, he denied dropping the insulation. Arroyo claimed that after he hit his head and while he was on the ground, his co-worker, Jose Rodriquez, asked him if he was okay.
Arroyo did not report the incident to his supervisor. He also acknowledged, however, that because he had been a supervisor at one time, he was familiar with the procedure for immediately reporting accidents. Arroyo testified that, three days after the incident, he told his supervisor, Bill Dunbar, that he was having severe headaches. Arroyo denied experiencing any headaches prior to March 16, 1992.
On March 21, 1992, when Arroyo was examined by Dr. George Gruner in the Chippenham Emergency Department, Arroyo did not initially volunteer any information about having hit his head at work. It was not until after Dr. Gruner specifically questioned Arroyo about head injuries, that Arroyo then reported the incident of striking his head on the pipe.
In contrast to Arroyo's testimony, Rodriquez testified that he never saw a severe blow, but rather that Arroyo may have "touched" the side of his head against a pipe on an unspecified day. Moreover, Rodriquez placed no importance on the incident. He testified that it was a common occurrence in the workplace to bump one's head on a pipe. Rodriquez never saw Arroyo drop the insulation, take off his hard hat, rub his head or neck, or descend the ladder after any blow to the head. Rodriquez denied asking Arroyo if he was okay after an incident where he had struck his head.
Dunbar testified that, on Monday, March 16, 1992, prior to beginning work, Arroyo complained to him of headaches. After that time, Arroyo did not report experiencing further headaches. Arroyo never reported to him an injury or accident involving a blow to his head.
The full commission affirmed the deputy commissioner, finding that Arroyo's testimony was not credible. The commission relied upon inconsistencies between Arroyo's testimony and that of the other witnesses. The commission gave greater weight to the testimony of Arroyo's supervisor, who stated that Arroyo complained of headaches on the morning of March 16 before work began and did not approach him later in the day about headaches or other problems. The commission also agreed with the deputy's finding that, "there are 'too many unexplained gaps' to support a finding of one specific work-related incident causing injury."
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). In this instance, whether Arroyo sustained an injury by accident arising out of and in the course of his employment was entirely dependent upon the commission's assessment of the credibility of the witnesses. The commission's finding that Arroyo's evidence was not credible and failed to present a cogent account of an identifiable head injury is supported by credible evidence. Accordingly, we cannot say that, as a matter of law, Arroyo sustained his burden of proof.
Since our ruling on the first question presented disposes of this appeal, we need not address the causation issue. For the reasons stated, we affirm the commission's decision.
Affirmed.