Jaime Alfonso Garcia v Barlows, Inc., et al.

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Koontz, Bray and Senior Judge Hodges
JAIME ALFONSO GARCIA MEMORANDUM OPINION*
v. 	Record No. 2602-94-4 	PER CURIAM
JUNE 27, 1995
BARLOWS, INC.
AND
CINCINNATI CASUALTY COMPANY
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Arturo Hernandez, on brief), for appellant.
(William E. Glover; Glover & Dahnk, on brief), for
appellees.
Jaime Alfonso Garcia contends that the Workers' Compensation
Commission erred in finding that he failed to prove that he
suffered head, neck, leg, and back injuries as a result of his
compensable December 8, 1992 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. 	Rule 5A:27.
On appellate review, 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).
Unless we can say as a matter of law that Garcia's evidence
sustained his burden of proof, the commission's findings are
binding and conclusive upon us. 	Tomko v. Michael's Plastering
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

2
Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Garcia testified that, while working for the employer on
December 8, 1992, he fell approximately seven to ten feet from a
forklift to the ground. 	He landed on his feet and hip. 	Before
he fell, a conveyor belt hit his head and his left hand got
caught in a chain. 	Garcia sustained a crush injury to his left
hand. 	The employer accepted the left hand injury as compensable
and an award was entered by the commission. 	On June 7, 1993,
Garcia filed an application alleging additional injuries to his
head, neck, legs, and back as a result of the December 8, 1992
industrial accident.
In denying Garcia's application on the basis that he failed
to prove that he sustained these additional injuries as a result
of the December 8, 1992 accident, the commission found as
follows: We find the Deputy Commissioner's decision is
amply supported by the record. 	There is no
mention of any head, back, neck, or leg pain
in the medical records until three weeks
after the accident. 	The claimant asserted at
the hearing that he tried to explain his
injuries at the hospital on December 8, 1992,
but he could not communicate in English. 	He
initially denied the existence of an
interpreter at the hospital, then stated he
did not remember. 	However, the hospital
records contain more than one reference to an
interpreter.
We note that in reaching her decision,
the Deputy Commissioner considered the
demeanor of the claimant and determined that
his testimony was not credible. 	The Deputy
Commissioner observed the witnesses and
therefore was in the best position to judge
credibility. 	We do not find evidence in this
record which would persuade us to alter the

3
Deputy Commissioner's decision.
The deputy commissioner determined that Garcia's testimony
concerning additional injury claims was not credible. 	This
determination was based upon the deputy commissioner's finding
that the hospital medical records and Dr. Shlomo Widder's reports
of December 8, 1992 did not contain any evidence that Garcia
complained of head, neck, leg, or back pain, nor did he make such
complaints to the home health nurses who cared for him from
January 14, 1993 through January 31, 1993. 	These findings are
supported by the record.
The deputy commissioner was entitled to reject Garcia's
contention that his inability to speak English resulted in the
lack of documentation of his additional injury claims. 	The
medical records indicated that Garcia's injuries were discussed
through an interpreter at the hospital. 	In addition, Garcia
admitted that some of the home health nurses spoke Spanish.
The full commission relied upon the deputy commissioner's
credibility determination in reaching its decision. 	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
on this record, the commission was entitled to conclude that
Garcia's testimony was not credible.1
Accordingly, we cannot
1Contrary to Garcia's contention, the commission did not
find that he failed to prove that he fell on December 8, 1992.
Rather, the commission found that he failed to prove that he
sustained any injuries, other than to his left hand, as a result

4
find as a matter of law that Garcia carried his burden of proving
that he sustained head, neck, leg, and back injuries as a result
of the December 8, 1992 compensable industrial accident.
For the reasons stated, we affirm the commission's decision.
Affirmed.
of the fall.