Oscar R. White v. C. J. Coakley Company ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
OSCAR R. WHITE
v. Record No. 2345-98-2
C. J. COAKLEY COMPANY, INC. AND
HARTFORD FIRE INSURANCE COMPANY MEMORANDUM OPINION *
PER CURIAM
WILBERT E. WHITE MAY 4, 1999
v. Record No. 2346-98-2
C. J. COAKLEY COMPANY, INC. AND
HARTFORD FIRE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Gary W. Kendall; Michie, Hamlett, Lowry,
Rasmussen & Tweel, P.C., on brief), for
appellants.
(Benjamin J. Trichilo; Trichilo, Bancroft,
McGavin, Horvath & Judkins, P.C., on brief),
for appellees.
Oscar R. White and Wilbert E. White ("claimants") contend
that the Workers’ Compensation Commission ("commission") erred in
denying their claims for an award of benefits for asbestosis, an
occupational disease, on the ground that they failed to prove that
they were last injuriously exposed to asbestos at the St.
Elizabeth’s Hospital jobsite during 1983 and 1984 while employed
by C.J. Coakley Company, Inc. ("employer"). Upon reviewing the
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
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). Unless
we can say as a matter of law that the claimants’ evidence
sustained their 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).
In denying the claims, the commission found the testimony of
employers’ witnesses more credible than the claimants’ testimony.
In so ruling, the commission found as follows:
Oscar White’s testimony is questionable. He
said he could tell asbestos by sight and
believed the products being installed at St.
Elizabeth’s Hospital contained asbestos.
The more credible evidence of [C.J.] Coakley
established that asbestos was not used in
plaster materials since the early 1970’s.
Wilbert White testified that he could
identify asbestos because it made him cough.
He presumably identified asbestos he and his
brother worked with at St. Elizabeth’s
Hospital that way. However, this testing is
contradicted by his statements that the
asbestos was not reported to the employer
because he did not know it was asbestos at
the time.
Coakley and Scafide, and even Wilbert
White, testified that the seven buildings on
which they worked through 1984 had already
been gutted before work by the Coakley crews
commenced. These building sites were
visited several times in 1983 and 1984 by
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Scafide, who found no safety violations.
Furthermore, neither Coakley or Scafide
could testify that any asbestos had been
removed from the first seven buildings, the
only buildings on which the claimants
worked. There is therefore no credible
evidence that there was asbestos in the
seven buildings worked on by Wilbert White
and Oscar White.
Even if we were to accept the testimony
of Oscar and Wilbert White that asbestos
removal crews worked at opposite ends of the
building where the claimants worked,
although this flies in the face of standard
asbestos removal procedures, this is
insufficient to show exposure to asbestos
materials in the areas where the claimants
worked.
The commission’s factual findings are amply supported by
the record. In its role as fact finder, the commission was
entitled to accept the testimony of Coakley and Scafide and to
reject the claimants’ 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). Based upon the
testimony of Coakley and Scafide, which the commission was
entitled to accept, we cannot say as a matter of law that
claimants’ evidence sustained their burden of proof.
For these reasons, we affirm the commission’s decision.
Affirmed.
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