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JANUARY 30, 2001

Record No. 2394-00-3

Present: Judges Elder, Bray and Senior Judge







(Tamika C. Harris, on briefs), pro se.

(Warren H. Britt; Warren H. Britt, P.C., on
brief), for appellees.

Tamika C. Harris (claimant) contends that the
Workers’ Compensation Commission erred in (1) finding that she
failed to prove that she sustained an injury by accident arising
out of and in the course of her employment on September 6, 1999;
and (2) denying her motion for sanctions against Target Stores
and its insurer (hereinafter referred to as
"employer"). Upon reviewing the record and the briefs
of the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission’s decision. See
Rule 5A:27.

I. Injury by Accident

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 the body
." Morris
v. Morris
, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989)
(citations omitted). 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).

The commission ruled that claimant did not
prove that she was injured as a result of a specific incident at
work on September 6, 1999. As the basis for its decision, the
commission made the following findings:

The claimant testified that on September 6,
1999, she was operating a triple pallet rider. As she maneuvered
the tines under a stack of pallets, and the rider came in contact
with those pallets, she experienced a sudden onset of pain.
However, this testimony is inconsistent with the recorded
statement provided by the claimant on September 16, 1999, as well
as the incident report completed by the claimant on that date. In
neither instance did the claimant indicate that she sustained
injury from an incident as described in hearing testimony.
Rather, the claimant wrote that she experienced pain in the right
knee while operating the triple pallet rider.

Further, the claimant reported complaints of
pain at different times to two supervisors, [Rick] Parkinson and
[Shawn] Pepple. Both supervisors testified that the claimant did
not report the onset of pain when the triple pallet rider came in
contact with the stack of pallets. [Tanya] Swarey testified that
she interviewed the claimant on September 16, 1999, in
conjunction with emergency treatment rendered. She testified that
the claimant denied any trauma, and stated that there was a
gradual increase in pain during the work shift. This is
consistent with Swarey’s contemporaneous report. Likewise, Dr.
[Alan] Richardson did not record a history of injury due to a
specific incident. This is consistent with Dr. [Gwo-Jaw] Wang’s
initial reports. It was not until October 1999 that any health
care provider recorded a history of injury essentially consistent
with the claimant’s hearing testimony.

. . . The claimant’s testimony as to
the occurrence of an incident on September 6, 1999, is
contradicted by her own statements on September 16, 1999, and
reports to different supervisors and health care providers as to
the cause of her symptoms . . . .

As fact finder, the commission was entitled to
accept the testimony of employer’s witnesses and to reject
claimant’s hearing testimony that a specific incident occurred.
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 claimant sustained
an injury due to a specific identifiable incident at work on
September 6, 1999 was entirely dependent upon her credibility.
The commission, in considering the testimony of the witnesses,
the documentary evidence, and the medical histories, found that
claimant’s evidence was not sufficient to establish her claim. In
light of the inconsistencies between claimant’s testimony and her
prior statements to employer and her health care providers, we
cannot say as a matter of law that her evidence sustained her
burden of proof.

II. Sanctions

In denying claimant’s request for sanctions
against employer for alleged misconduct during the discovery
process, the commission found as follows:

The claimant propounded on the employer various
discovery requests prior to the scheduled hearing in this matter.
The employer responded in a timely fashion, providing requested
information in some instances, and raising objections to other
requests. The claimant filed a voluminous motion to compel and
motion for sanctions which was considered by the Deputy
Commissioner. His findings, as reflected in the Opinion of May 1,
2000, are consistent with the record in this case. Accordingly,
we find no reversible error in his denial of the claimant’s

We have reviewed the record and claimant’s
arguments for sanctions. We find that the commission’s findings
are amply supported by the record and that the commission did not
abuse its discretion in denying claimant’s request for sanctions.

For these reasons, we affirm the commission’s



[1] Pursuant to Code ? 17.1-413, this opinion is not
designated for publication.