COURT OF APPEAL S OF VIRGINIA

Present: Judg es Bray, Annunz iata and Frank

OSCAR R. WHITE

v. Record No. 2345-98-2

C. J. COAKLEY CO MPANY, 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 CO MPANY, INC. AND HARTFORD FIRE INSURANCE COMPANY

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION (Gary W. Kendall; Mich ie, Hamlett, Lowry, Rasmussen & Tweel, P.C., on brief), for appellants. (Benjamin J. Trichilo ; Trichilo, Bancroft, McGavin, Horvath & Judk ins, P.C., on brief), for appellees.

Oscar R. White and Wilbert E. White ("claimants") contend that the Workers’ Comp ensation Commission (" commission") erred in denying their clai ms for an award of bene fits for asbestosis, an occupational disease, on the ground that they failed to prove that they were last inju riously expose d to asbestos at the St. Elizabeth’s Ho spital 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.- 2 - record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we su mmarily 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 Bl dg. Corp. v. Mullins , 10 Va. App. 211, 212, 390 S. E.2d 788, 788 (1 990). Unless we can say as a matt er of law that the claimants’ evidence sustained their bu rden of proof, the comm ission’s findings are binding and conclu sive upon us. See Tomko v. Michael’s Plastering. Co. , 210 Va. 697, 69 9, 173 S.E.2d 83 3, 835 (1970). In denying the clai ms, the commissi on found the testimony of employers’ witnesses mo re credible than the claimants’ testimony. In so ruling, th e commission fo und 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- 3 - 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

.