A. T. LORI ENTERPRISES AND ERIE INSURANCE EXCHANGE v. ARLEN COMBS

Record No. 2441-92-4Court of Appeals of Virginia.
June 29, 1993

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION.

(Dawn E. Boyce; Lewis, Trichilo, Bancroft McGavin, on briefs), for appellants.

(James E. Swiger; Swiger Cay, on brief), for appellee.

Present: Judges Benton, Coleman and Willis.

MEMORANDUM OPINION[*]

[*] Pursuant to Code § 17-116.010 this opinion is not designated for publication.

PER CURIAM

A. T. Lori Enterprises (“A. T. Lori”) and its insurer contend that the commission erred in finding that Arlen Combs sustained an injury by accident arising out of and in the course of his employment as a painter for A. T. Lori on September 20, 1991. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers’ Compensation Commission. Rule 5A:27.

On appellate review, we will construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg.Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). We must uphold the commission’s findings of fact if they are supported by credible evidence. James v. Capitol SteelConstr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

Page 2

“In order to carry his burden of proving an `injury by accident,’ a claimant must prove that the cause of his injury was an identifiable incident or sudden precipitating event and that it resulted in an obvious sudden mechanical or structuralchange in the body.” Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989) (emphasis in original, citations omitted).

Combs testified that on September 20, 1991, at approximately 2:30 p.m., he descended an aluminum extension ladder while carrying a two gallon bucket of paint and a brush in his right hand and a caulking gun in his left hand. He stated that he stepped onto the ground with his right foot while his left foot was still on the ladder. When his left foot touched the ground, something snapped in his left leg. At that time, he felt pain in his lower back which radiated down his left leg, making the leg feel as though it were paralyzed.

The Employer’s First Report of Accident, filled out by Combs shortly after the accident and introduced into evidence, corroborates Combs’ hearing testimony. In the report, Combs stated that he was on a ladder painting an apartment building, descended the ladder and stepped onto the ground with his left leg, at which time his leg started to hurt.

In two recorded statements given by Combs to the insurer’s representative, Combs consistently stated that the accident happened at approximately 2:30 p.m. and that, at that time, he felt something pull, causing pain across his lower back and in both legs. In the November 1991 statement, Combs specifically

Page 3

noted that when he put his foot on the ground, he felt something had changed since the last time he had been up the ladder. He felt the pain at this time.

The record provides credible evidence to support the commission’s finding of an identifiable incident wherein Combs sustained injury to his back and legs caused by the conditions of his employment during normal working hours. “[I]t lies within the commission’s authority to determine the facts and the weight of the evidence, and its findings in that regard, when supported by credible evidence, will not be disturbed on appeal.” Rose v. Red’s Hitch Trailer Servs., Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395 (1990) (citations omitted).

For the reasons stated, we affirm the commission’s decision.

Affirmed.

Page 1

image_pdfimage_print