COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

MASOUMEH MACY ASKARI 

 

v. Record No. 1532-96-4 MEMORANDUM OPINION*

 PER CURIAM 

MONTGOMERY WARD & COMPANY, INC. NOVEMBER 26, 1996 

AND 

NATIONAL UNION FIRE INSURANCE 

 COMPANY OF PITTSBURGH 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Masoumeh Askari, pro se, on brief). 

 (Richard A. Yeagley; Siciliano, Ellis, Dyer & 

Boccarosse, on brief), for appellees. 

 Masoumeh Askari ("claimant") contends that the Workers' 

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

failed to prove that she was disabled as the result of a 

work-related accident on December 29, 1992. 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. Rule 5A:27. 

 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). 

 So viewed, the evidence showed that after the December 29, 

1992 accident, claimant worked full-time, without difficulty, in 

a medical laboratory. Claimant did not tell her physicians or 

 

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

designated for publication. 
 2 

physical therapists that she was working full-time. Claimant's 

physical therapists observed claimant ambulating outside the 

clinic without the difficulty she exhibited when inside the 

clinic. In addition, surveillance videotapes taken by private 

investigators showed claimant walking without a limp, driving, 

and washing her car without any signs of impairment. 

 Dr. Abraham Cherrick, claimant's treating physician, who 

viewed the videotapes during his deposition, testified that 

claimant's activities depicted on the videotapes were 

inconsistent with the complaints she exhibited to him during his 

treatment. Based upon the videotapes and the evidence that 

claimant worked full-time, Dr. Cherrick testified that claimant 

was capable of working at the time of his treatment in 1993. 

Furthermore, the medical records revealed no objective evidence 

of disability. 

 In ruling that claimant failed to prove disability, the 

full commission relied upon the deputy commissioner's credibility 

determination. It stated: 

 The Deputy Commissioner found that the 

claimant was not credible in describing her 

continuing severe pain. While not bound by 

the credibility findings of the Deputy 

Commissioner, we will not arbitrarily 

disregard them. The claimant has the burden 

of proving every element of her claim. Her 

expressions of extreme pain are not supported 

by any objective medical findings, and they 

are undermined by evidence that her physical 

demeanor dramatically improves when she 

believes she is not being observed. 

(Citations omitted.) 
 3 

 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. Tomko v. Michael's 

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). 

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). Based 

upon this record, the commission was entitled to conclude that 

claimant's testimony concerning her disability was not credible. 

 Accordingly, we cannot find as a matter of law that claimant's 

evidence sustained her burden of proof. 

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

 Affirmed.