Opinion
Record No. 1345-93-3
December 7, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Lawrence L. Moise, III; Vinyard Moise, on brief), for appellant.
(Ramesh Murthy; Penn, Stuart, Eskridge Jones, on brief), for appellees.
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. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
Vickie Lynn Sutherland (claimant) contends that the commission erred in finding that she did not sustain any disability or incur any medical expenses (beyond the emergency room visit of September 19, 1991) as a result of her September 19, 1991 industrial accident.
"A question raised by conflicting medical opinion is a question of fact." Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). Upon appellate review we will uphold findings of fact made by the commission if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). Moreover, 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). Unless we can say as a matter of law that claimant's evidence was sufficient to sustain her burden of proof, 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).
In finding that claimant did not sustain any compensable disability as a result of the September 19, 1991 industrial accident, the commission accepted the opinions of Drs. Senter, Kennedy, Cupp, Brasfield, Kelley, Eden and Warren, and rejected the contrary opinions of Drs. Kotay and Vanover.
The opinions of Drs. Kotay and Vanover were based upon an inaccurate and/or incomplete medical history. In fact, claimant failed to reveal to any of her treating physicians, except Dr. Kelley, that she sustained an industrial accident in June 1990 which caused her to complain of lower back symptoms identical to those she complained of after the September 1991 accident.
The opinions of the other physicians and psychologist Warren constitute credible evidence to support the commission's decision. None could find any objective orthopedic or neurological basis to substantiate claimant's subjective complaints. From a psychiatric standpoint, they either did not give an opinion regarding causation or found that claimant did not sustain any psychiatric impairment as a result of the September 19, 1991 accident.
Additionally, inconsistencies relating to claimant's candor with her treating physicians raised serious doubt as to the extent of the injuries received by claimant in her fall of September 19, 1991. Therefore, the commission was entitled to discount claimant's testimony that her back symptoms were caused by the September 1991 accident. "[T]he determination of a witness' credibility is 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).
For the reasons stated, we affirm the commission's decision.
Affirmed.