Kenny''s Construction Inc. v. Richards12/17/1996
k. Claimant began his job search the next day.
Based upon this record, we cannot say as a matter of law that the commission erred in ruling that claimant had no duty to market his residual capacity until after September 11, 1995 and that he adequately marketed his residual capacity after that date.
III. Injury by Accident
On appeal, we view the evidence in the light most favorable to the prevailing party below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Factual findings made by the commission will be upheld on appeal if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
Claimant testified that on June 6, 1995, at approximately 2:15 p.m., while working at a job site at Great Oaks, he felt a sudden tearing across his back while lifting a 600-pound pre-fabricated wall onto a deck with his co-worker, Greg Campbell. Claimant testified that he told his supervisor, Tim Cubbage, about the accident shortly after it occurred. Claimant also stated that he called the owner, Kenny Cubbage, the next morning and informed Kenny Cubbage that he would not be coming into work because of the accident.
On June 8, 1995, claimant sought medical treatment from Dr. Prager. Dr. Prager recorded a history of claimant sustaining a back injury at work on June 7, 1995 while lifting a pre-fabricated wall. Claimant testified that Dr. Prager incorrectly recorded the accident date. On June 28, 1995, Dr. Fox recorded a history consistent with claimant's description of the accident.
Claimant's testimony conflicted in various respects with the testimony of Campbell and the Cubbages, employer's witnesses. The commission, after observing the demeanor of the witnesses and reviewing the totality of the evidence, found claimant credible and afforded greater weight to his testimony than to the contrary accounts of employer's witnesses.
"In determining whether credible evidence exists, the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of the witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). 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 by accident arising out of and in the course of his employment was entirely dependent upon the credibility of the witnesses. The commission, in considering the testimony of the witnesses, found claimant's testimony, which was corroborated by the medical histories, to be credible. We are bound by that finding. "Although contrary evidence may exist in the record, findings of fact made by the commission will be upheld on appeal when supported by credible evidence." Bullion Hollow Enters., Inc. v. Lane, 14 Va. App. 725, 730, 418 S.E.2d 904, 907 (1992).
For these reasons, we affirm the commission's decision.
Affirmed.
|