Record No. 2060-93-3Court of Appeals of Virginia.
May 3, 1994
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(John W. Swezey, on brief), for appellant.
(Richard D. Lucas; Woods, Rogers Hazlegrove, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray
MEMORANDUM OPINION[*]
PER CURIAM
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.
Patricia Cohee (claimant) contends that the commission erred in finding that she failed to prove that she sustained a compensable injury on March 11, 1991.
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). “In order to carry [her] burden of proving an `injury by accident,’ a claimant must prove the cause of [her] 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). Unless we
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can say as a matter of law that claimant’s evidence was sufficient to sustain this burden of proof, the commission’s finding is binding and conclusive upon us. Tomko v. Michael’sPlastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Claimant’s back problems began on November 28, 1988, when she sustained a back strain while lifting a bundle of clothing at work. As a result of this incident, claimant remained out of work for less than seven days.[1] Thereafter, she returned to her regular employment as a sewing machine operator. From December 1988 until March 11, 1991, claimant continued to work although she experienced intermittent back pain.
Claimant testified on direct examination that on March 11, 1991, she experienced a pull in her back when she “bent” to pick up a bundle of clothing. On cross-examination, she stated that she felt the pull in her back as she “threw” a bundle of clothing. Claimant admitted that she had been throwing bundles of clothing over a period of time during the morning hours prior to the alleged incident.
Claimant was aware that she was required to immediately report any work-related accident to her supervisor. Yet, on March 11, 1991, while claimant told her supervisor that her back was hurting, she did not mention any specific incident or cause for the pain. The emergency room report of that same date
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reflects only that claimant experienced low back pain while at work. It does not make mention of any specific incident. On March 18, 1991, when questioned by her supervisor, claimant again stated that she did not know what had caused her back pain. It was not until March 25, 1991 that claimant reported the alleged March 11, 1991 incident to her supervisor.
Claimant was released to return to her regular employment without restrictions on April 8, 1991. Dr. Lawrence S. Gordon noted in July 1991 that, as of April 1991 when claimant was released to return to work, she had no evidence of a herniated disc and no subjective complaints on her left side. Claimant continued to experience intermittent back symptoms after returning to work in April 1991. However, she did not seek medical treatment again until January 15, 1992, some nine months later. She was disabled from work for five days and then returned to her regular duties until March 4, 1992. At that time, Dr. Alan J. Biczak, osteopath, noted that claimant had experienced numerous exacerbations of her back pain since November 1988 and that her “left sided” back pain had gradually worsened over the past four to five weeks. An MRI revealed a herniated lumbar disc which was treated surgically in May 1992.
Based upon this record, the commission found that claimant failed to prove that she suffered an injury by accident occurring at a reasonably specific time and place. Credible evidence supports this finding. Claimant’s statements regarding how the alleged accident occurred were inconsistent. She had a
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long-standing history of intermittent back problems. She failed to inform her supervisor of any specific work-related incident until March 25, 1991, even though she knew she was supposed to report a work-related accident immediately upon its occurrence. The initial medical history following the alleged March 11, 1991 incident does not reflect the occurrence of an identifiable incident nor does it contain any evidence of the existence of a herniated disc. Finally, in March 1992, claimant told Dr. Biczak that her back pain had occurred gradually over the previous four to five weeks, rather than connecting it to any specific work-related accident. Accordingly, we cannot say as a matter of law that claimant’s evidence was sufficient to meet her burden of proving an injury by accident.
Since our ruling on this issue disposes of this appeal, we need not address the causation issue. For the reasons stated, we affirm the commission’s decision.
Affirmed.
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