Opinion
Record No. 0604-93-4
September 28, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Roger A. Ritchie, on brief), for appellant.
(Thomas G. Bell, Jr.; Timberlake, Smith, Thomas Moses, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
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.
Delores Ann Doyle contends that the commission erred in finding that she failed to prove that she sustained an injury by accident arising out of and in the course of her employment.
On appellate review we will construe the evidence in the light most favorable to the party prevailing below. R. G. Moore Bldg. Corp. v. Mullins, 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).
Doyle's testimony and that of her witness, Patricia Jones, conflicted in various respects with that of numerous witnesses called on behalf of the employer, including Corene Sears, Betty Hoover, Carlyn Cave, Bob Rieman and Tina Shoemaker. Sears, purported by Doyle to be an eyewitness to the accident, denied that she witnessed Doyle injure herself in the manner alleged. Cave and Rieman denied receiving notice of the accident at the time Doyle claimed. Sears, Cave and Shoemaker confirmed that Doyle had complained of continuous back pain since 1990, which Doyle denied. Doyle had been diagnosed by Dr. Thaine Billingsley in August 1990, more than a year before the alleged accident, with a herniated nucleus pulposus. Dr. Billingsley was not aware that Doyle had continued to complain of back pain from 1990 until the time of the accident.
The commission, after observing the demeanor of the witnesses and reviewing the evidence, afforded greater weight to the testimony of the employer's witnesses, all of whom were found to be credible, than to the contrary accounts of Doyle and Jones. In addition, the commission discounted the opinion of Dr. Billingsley as it was based on an inaccurate medical history.
"In determining whether credible evidence exists, the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of the witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (citation omitted). 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, the issue of whether Doyle sustained an injury by accident arising out of and in the course of her employment was entirely dependent upon the credibility of the witnesses. The commission, in considering the testimony of the witnesses, found Doyle's evidence to be insufficient to establish her claim and dismissed her application. We do not find that, as a matter of law, this conclusion was unsupported by credible evidence.
Accordingly, we affirm the commission's decision.
Affirmed.