Nancy Porok v. Richmond Memorial Hospital ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Bumgardner
NANCY POROK
MEMORANDUM OPINION *
v. Record No. 2946-97-2 PER CURIAM
MAY 19, 1998
RICHMOND MEMORIAL HOSPITAL/
HEALTH CORPORATION OF VIRGINIA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jeffrey R. Allen; Thorsen, Marchant & Scher,
L.L.P., on briefs), for appellant.
(Linda M. Ziegler; Crews & Hancock, PLC, on
brief), for appellee.
Nancy Porok (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that she
failed to prove she sustained an injury by accident arising out
of and in the course of her employment on July 5, 1996. With
respect to this issue, claimant raises numerous questions
presented, including whether the commission (1) improperly
considered medical histories in determining whether an accident
occurred, (2) failed to give appropriate weight to claimant's
testimony, and (3) erred in relying upon the testimony of
claimant's co-worker, Gloria Kenney. 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.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 meet her burden
of proving a compensable injury by accident. As the basis for
its decision, the commission made the following factual findings:
Although the claimant testified that she
felt pain in her right leg at the time she
was pulling on a gurney, the medical record
and other testimony does not support this
version of events. The history actually
prepared by her is inconsistent with an
injury by accident. Dr. [Edward B.] Beirne,
[Jr.,] who treated the claimant on the same
day of her alleged injury, noted that she had
experienced leg discomfort for four or five
days. Dr. [Douglas A.] Wayne, who treated
her four days after the alleged injury,
stated that she had suffered increasing back
pain for one and one-half weeks. He further
noted that the claimant's symptoms had
developed over many episodes of lifting and
maneuvering patients. In sum, the recorded
medical histories do not support the finding
of a compensable injury by accident. It is
significant that the medical histories in
this case, some of which were in the
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claimant's own handwriting, were being
presented by a nurse and not someone
unfamiliar with the importance of an accurate
medical history. A co-worker, [Kenney,] whom
[claimant] allegedly told of the injury,
testified that she did not observe [claimant]
limping or having difficulty walking.
[Kenney] further recalled complaints of back
pain of a one-week duration.
(Footnote omitted).
The commission's findings are amply supported by the medical
records and Kenney's testimony. As fact finder, the commission
was entitled to weigh all the evidence and to reject claimant's
testimony and accept Kenney'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). Moreover, the commission
did not err in considering the medical histories in determining
whether an accident occurred. See Pence Nissan Oldsmobile v.
Oliver, 20 Va. App. 314, 319, 456 S.E.2d 541, 544 (1995);
McMurphy Coal Co. v. Miller, 20 Va. App. 57, 59, 455 S.E.2d 265,
266 (1995); see also Rule 2.2, Rules of the Virginia Workers'
Compensation Commission. 1
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Claimant's contention that the commission erred in failing
to take into account the HealthSouth physical therapy notes and
claimant's recorded statement in rendering its decision is
without merit. These documents were before the commission and
nothing in the record indicates that the commission did not
consider them. The fact that the commission did not specifically
discuss these documents in its opinion is of no consequence. The
commission was entitled to weigh the evidence in its entirety and
to give that evidence the probative weight it deemed appropriate.
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In light of Kenney's testimony and the obvious
inconsistencies between the medical histories and claimant's
testimony, we cannot say as a matter of law that claimant's
evidence sustained her burden of proving a compensable injury by
accident.
Accordingly, we affirm the commission's decision.
Affirmed.
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