Kent A. Derrow v Owens Brockway Plastics, Inc., et

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
KENT A. DERROW MEMORANDUM OPINION*
v. 	Record No. 1827-98-3 	PER CURIAM
JANUARY 19, 1999
OWENS BROCKWAY PLASTICS, INC.
AND INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Linda D. Slough; Chandler, Franklin &
O'Bryan, on brief), for appellant.
(Ralph L. Whitt, Jr.; Williams, Lynch &
Whitt, on brief), for appellees.
Kent A. Derrow contends that the Workers' Compensation
Commission ("commission") erred in finding that his post-April
10, 1997 periods of disability were not compensable. 	Derrow
asserts that the evidence does not support the finding that his
re-injury was the result of violating his physician's specific
restrictions, rather than by an unexpected injury by accident.
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.
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
denying Derrow's application for compensation benefits for
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.

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periods of disability occurring after April 10, 1997, the
commission found as follows:
[Derrow] has asserted that he was
assigned his pre-injury work by his
supervisor, and that he was afraid to
challenge that assignment for fear of being
fired. . . . 	Convincing testimony to the
contrary was, however, given by Bobby Diehl,
Harry Fulk, Gary Bland, Dennis Riggleman, and
Amy Morris, as was recited both by the Deputy
below and in the hearing transcript. 	The
picture which emerges from their testimony is
that of an employer concerned about the
welfare of its employee, concern which led to
assignments consistent with the man's
limitations. 	The supervisor who allegedly
assigned [Derrow] to his pre-injury job
denied having done so, and indeed, cautioned
him "not to do anything" beyond his
restrictions, warning in the process that if
he did so, the defendant would not "be
responsible."
Against the backdrop of the defendant's
evidence, [Derrow's] alleged fears were
patently unreasonable. 	He was not required
to exceed his restrictions, and no one
connected with the defendant either did or
said anything which would have led him to
that mistaken assumption. 	He nevertheless,
by his testimony, exceeded those
restrictions, and predictably, aggravated his
injury, an aggravation which then resulted in
work incapacity during the periods . . . [of]
April 10 and 24, 1997, and May 15 through
July 7, 1997.
As fact finder, the commission was entitled to accept the
testimony of employer's witnesses and to reject Derrow's
uncorroborated testimony that he was forced by employer to exceed
his physician's restrictions. 	As the commission noted, Derrow
was not truthful with his physician on April 11, 1997 regarding
his work activities. 	It is well settled that credibility

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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).
In light of the testimony of employer's witnesses, we cannot
conclude as a matter of law that Derrow proved that he was
justified in exceeding his physician's restrictions. 	Thus, the
commission did not err in denying Derrow an award of compensation
benefits for periods of disability occurring after April 10,
1997.
For these reasons, we affirm the commission's decision.
Affirmed.