Opinion
Record No. 0476-93-3
September 21, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Eva Jo Shirley, pro se, on brief).
(Melissa Warner Scoggins; Dale W. Webb; Gentry, Locke, Rakes Moore, on brief), for appellees.
Present: Judges Baker, Elder and Fitzpatrick.
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. As the parties are familiar with the facts, we recite them only as necessary to explain our decision.
Eva Jo Shirley contends that the commission erred in finding that she failed to prove a compensable change in condition because the evidence showed that she was able to return to her pre-injury employment.
Shirley sustained a compensable injury to her left arm on September 19, 1989. On October 18, 1991, Shirley filed an application for hearing based on a change in condition alleging total disability from her pre-injury work beginning on July 18, 1991 and continuing.
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 on credible evidence.Hercules, Inc. v. Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991). "General principles of workman's compensation law provide that '[i]n an application for review of any award on the ground of change in condition, the burden is on the party alleging such change to prove his allegations by a preponderance of the evidence.'" Great Atl. Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987) (citation omitted). Unless we can say as a matter of law that Shirley's evidence was sufficient to sustain her 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).
The threshold issue before the commission was whether the job descriptions and videotape submitted by the employer to claimant's doctors accurately depicted her pre-injury employment duties. The dispute revolved around the extent of shoveling required of Shirley in her job. Shirley testified that she shoveled into the sandblaster on a regular and frequent basis, while the employer's three witnesses testified that no shoveling into the sandblaster was required after January 1989 when a "hopper" was purchased. Based on its credibility determination, the commission rejected the claimant's testimony on this issue and accepted the testimony of the employer's witnesses to find that the evidence failed to demonstrate that Shirley was required to shovel parts into the sandblaster after January 1989.
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). Accordingly, we will not disturb the commission's finding that the job descriptions and videotape accurately depicted Shirley's pre-injury job duties where, as here, this finding is entirely dependant upon the commission's credibility determination.
Once found to be accurate, the job descriptions and videotape submitted by the employer to Drs. Harry W. Bachman, Jr. and Carey W. McKain, support the physicians' undisputed opinions that Shirley was capable of returning to her pre-injury employment. This medical evidence provides credible evidence to support the commission's finding that Shirley is able to return to the full duties of her pre-injury employment. Therefore, we cannot say as a matter of law that the commission erred in finding that Shirley failed to meet her burden of proving a compensable change in condition.
Accordingly, the commission's decision is affirmed.
Affirmed.