COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

THOMAS JEFFREY DETERMAN 

 MEMORANDUM OPINION*

v. Record No. 0438-98-4 PER CURIAM 

 AUGUST 25, 1998 

WILLARD CHRISTOPHER THOMPSON/ALL STAR MOVERS 

 AND HARLEYSVILLE MUTUAL INSURANCE COMPANY 

 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (James F. Green; Ashcraft & Gerel, on brief), 

for appellant. 

 (Elizabeth A. Zwibel; Siciliano, Ellis, 

Dyer & Boccarosse, on brief), for appellees. 

 Thomas J. Determan ("claimant") contends that the Workers' 

Compensation Commission ("commission") erred in finding that (1) 

he failed to prove that he sustained an injury by accident 

arising out of his employment on November 23, 1996; and (2) 

Willard Christopher Thompson ("employer") was not estopped from 

denying compensability of the claim under the holding in National 

Linen Serv. v. McGuinn, 5 Va. App. 265, 362 S.E.2d 187 (1987). 

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. 

 I. Injury by Accident/Arising Out Of

 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). "To 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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prove the 'arising out of' element, [in a case involving injuries 

sustained from falling at work, claimant] must show that a 

condition of the workplace either caused or contributed to [his] 

fall." Southside Virginia Training Ctr. v. Shell, 20 Va. App. 

199, 202, 455 S.E.2d 761, 763 (1995) (citing County of 

Chesterfield v. Johnson, 237 Va. 180, 184, 376 S.E.2d 73, 76 

(1989)). "Whether an injury arises out of the employment is a 

mixed question of law and fact and is reviewable by the appellate 

court." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 

483, 382 S.E.2d 305, 305 (1989). However, unless we conclude 

that claimant proved, as a matter of law, that his employment 

caused his injury, the commission's finding is binding and 

conclusive on appeal. See Tomko v. Michael's Plastering Co., 210 

Va. 697, 699, 173 S.E.2d 833, 835 (1970). 

 At the May 16, 1997 hearing, claimant testified that on 

November 23, 1996, he was repairing a truck for employer. As he 

stepped from the truck top to a pallet that had been raised up on 

a forklift, the pallet slipped. The next thing he remembered was 

when he awoke while lying on the floor. None of claimant's 

co-workers witnessed the incident. In claimant's March 6, 1997 

deposition, he was repeatedly asked to recite the events leading 

up to his fall. He testified that he remembered kneeling on top 

of the truck while repairing the holes, but could not remember 

anything else until he was placed on an ambulance stretcher. 

Claimant asserted at the hearing that he remembered the complete 
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details of the accident after he gave his deposition testimony. 

The medical records consistently reported that claimant could not 

remember the fall or the events immediately before it occurred. 

No medical evidence showed that claimant's memory slowly improved 

following the fall. 

 Claimant's co-worker, William B. Logan, who found claimant 

on the floor after the fall, testified that claimant told him 

that he did not know what happened, but that he thought he fell. 

 Claimant also told Logan at the hospital that he could not 

remember anything regarding the fall. 

 In denying claimant's application, the commission rejected 

claimant's hearing testimony, finding that claimant was not 

credible. In so ruling, the commission found as follows: 

 Given this late change in the claimant's 

recollection, unsupported by any concomitant 

cognitive change reported in the medical 

record, we do not find his testimony credible 

regarding the circumstances leading to his 

fall. It is noted that the Deputy 

Commissioner did not find his testimony to be 

credible. On Review, the claimant asserts 

that his recorded statement given to the 

carrier on December 12, 1996, is consistent 

with his Hearing testimony. However, in that 

interview, he stated only that, "I 

think . . . I was trying to step, . . . " 

onto the pallet, and "I guess the pallet 

moved . . ." (Statement at 2). It is clear 

from the context and wording of the statement 

that the claimant was speculating on the 

cause of his fall, rather than stating a 

cause. He later indicated in his deposition 

testimony that he was unsure of the cause of 

his fall. 

 It is well settled that the determination of a witness' 
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credibility is 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). In light of the inconsistencies in the 

record, the commission had ample reason to disbelieve claimant's 

hearing testimony. Absent claimant's hearing testimony, his fall 

was unexplained. Because claimant failed to present credible 

evidence to prove that his employment exposed him to a particular 

danger from which he was injured, we cannot find as a matter of 

law that claimant's evidence sustained his burden of proof. 

 II. Estoppel 

 In denying claimant's assertion that employer be estopped 

from denying compensability of the claim, the commission found as 

follows: 

 The fact situation presented here does 

not lead us to conclude that the employer 

asserted defenses in an effort to avoid 

shifting of the burden of proof under 

McGuinn. The record establishes that the 

defenses raised were viable, given the state 

of the evidence. We further note that the 

employer promptly notified both the 

Commission and the claimant that it was no 

longer accepting compensability of the claim. 

 The employer denied the claim within three 

months of the accident and within one month 

of the filing of the Claim for Benefits. 

Also, the fact that the employer paid wages 

in this case does not evidence an intent to 

accept the claim. The record reflects that, 

prior to the accident, the employer paid full 

wages to the claimant during an extended 

period of absence, even though the claimed 

disability was obviously not work-related. 

There is no evidence that the impetus for 

paying full wages after the alleged work 

injury was for any reason other than 

friendship, which prompted the previous 

payments. 
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 No Memorandum of Agreement or Agreed 

Statement of Fact had been submitted by 

either party, and no award had been entered 

by the Commission before the employer 

indicated that it was denying the 

compensability of the claim. 

 The commission's findings are amply supported by the record. 

Nothing in the record indicates that employer denied the claim in 

an effort to circumvent the holding in McGuinn and shift the 

burden of proof. Based upon this record, the commission did not 

err in holding that employer was not estopped from denying 

compensability of the claim. 

 For these reasons, we affirm the commission's decision. 

 Affirmed.