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WRANGLER, INC., et al.

MARCH 6, 2001

Record No. 2644-00-3

Present: Judges Willis, Frank and Clements







(John B. Krall; Roger Ritchie & Partners,
P.L.C., on brief), for appellant.

(J. David Griffin; Fowler, Griffin, Coyne,
Coyne & Patton, P.C., on brief), for appellees.

April L. Koontz (claimant) contends that the
Workers’ Compensation Commission erred in finding that she failed
to prove that she suffered an injury by accident arising out of
and in the course of her employment on October 18, 1999. 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.

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).
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 failed to
prove that she suffered an electrical shock on October 18, 1999,
or suffered any acute injury flowing therefrom. In so ruling, the
commission found as follows:

The most complete history of injury reflected
in the medical records is that reported by Dr. [James H.] Bernheimer and Dr. [Joel M.] Trugman. This history is essentially
consistent with the testimony offered by the claimant. They
reported that the claimant was standing on a wooden platform. The
metal which comprised the lift was not in contact with the steel
beam which the claimant was cleaning. The claimant, in turn, was
not in contact with the battery of the lift. They, and various
other health care providers, specifically noted the absence of
entrance and exit burns indicating the route that the alleged
electrical current followed through the claimant’s body. These
physicians, who are specialists in neurology, reported that the
tremor in the right upper extremity viewed during examination
varied in location, amplitude and frequency. Based on these
findings and the history provided by the claimant, Dr. Bernheimer
and Dr. Trugman expressed some doubt as to whether the claimant
suffered an electrical shock injury, and concluded that the
claimant exhibited both a significant functional and psychogenic
overlay. We further note that electrodiagnostic studies revealed
the absence of electrophysiologic evidence of right ulnar
neuropathy or any widespread neuropathic processes in the right
upper extremity.

Histories recorded by several health care
providers are inconsistent with the claimant’s testimony. Dr.
Bernheimer and Dr. Trugman noted reports that the claimant was
knocked backwards from the shock and suffered bruising on her
right arm. Dr. [Robin J.] Hamill-Ruth reported that the alleged
electric current flowed from one unknown extremity through the
right hand. On the issue of causation, Dr. [G. Gregory] Ross’
opinion evolved over time to reflect his ultimate opinion that
the claimant possibly suffered an electrical injury. He concluded
on January 24, 2000, that the claimant’s symptoms were of unknown
etiology. Dr. [Glenn E.] Deputy opined that he could not
determine the cause of the claimant’s symptoms.

(Citation omitted.)

In light of the conflicts between claimant’s
hearing testimony and the medical records and the opinions of her
medical providers, the commission, as fact finder, was entitled
to reject claimant’s testimony regarding the alleged October 18,
1999 incident. 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). Furthermore, the commission could infer from the
medical records and the opinions of claimant’s medical providers
that claimant’s evidence failed to prove that her right arm
condition was caused by an electrical shock or other acute injury
at work on October 18, 1999. "Where reasonable inferences
may be drawn from the evidence in support of the commission’s
factual findings, they will not be disturbed by this Court on
appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App.
398, 404, 374 S.E.2d 695, 698 (1988). Based upon this record, we
cannot find as a matter of law that claimant’s evidence sustained
her burden of proof.

For these reasons, we affirm the commission’s



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