Wilhelmenia Lee v City of Portsmouth School Board

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Annunziata and Overton
WILHELMENIA LEE MEMORANDUM OPINION*
v. 	Record No. 1740-98-1 	PER CURIAM
NOVEMBER 24, 1998
CITY OF PORTSMOUTH SCHOOL BOARD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William E. Baggs, on briefs), for appellant.
Appellant submitting on brief.
(Andrew R. Blair, on brief), for appellee.
Appellee sumbitting on brief.
Wilhelmenia Lee ("claimant") appeals a decision of the
Workers' Compensation Commission ("commission") denying her claim
for benefits. 	Claimant 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
June 5, 1996, which aggravated her pre-existing condition.
Finding no error, we affirm.
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). 	"In
order to carry [the] burden of proving an 'injury by accident,' a
claimant must prove that the cause of [the] injury was an
identifiable incident or sudden precipitating event and that it
resulted in an obvious sudden mechanical or structural change in
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

- 2 -
the body." 	Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858,
865 (1989). 	Unless we can say as a matter of law that claimant's
evidence sustained her burden of proof, the commission's findings
are binding and conclusive upon us. 	See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Relying upon the deputy commissioner's credibility
determination, the commission found that claimant did not prove a
compensable injury by accident on June 5, 1996. 	In so ruling,
the commission found as follows:
The Deputy Commissioner observed the
witnesses and found [Judy] Brown more
credible than [claimant]. 	[Claimant]
testified that her injury occurred as a
result of a collision between two school
buses. 	Brown, the driver of the other bus,
denied that her bus impacted with
[claimant's] bus. 	Brown, [claimant] and
[Gerard] Gavin agreed there was no physical
evidence to corroborate a collision between
two vehicles. 	The Deputy Commissioner
concluded that [claimant] did not testify
with sufficient credibility to persuade that
the accident occurred without damage to
either vehicle. 	The Deputy Commissioner did
not find [claimant] to be a credible witness.
As fact finder, the commission was entitled to accept
Brown's testimony and to reject claimant's testimony. 	It is well
settled that credibility determinations are 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 this
instance, the issue of whether claimant sustained an aggravation
of her pre-existing condition due to an injury by accident on
June 5, 1996 was entirely dependent upon the credibility of the

- 3 -
witnesses. 	The commission, in considering the testimony of the
witnesses, found claimant's evidence to be insufficient to
establish her claim. 	Based upon that credibility determination,
we cannot say, as a matter of law, that claimant's evidence
sustained her burden of proof.
For these reasons, we affirm the commission's decision.
Affirmed.