Opinion
Record No. 0849-92-1
October 27, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Robert A. Rapaport; Knight, Dudley, Dezern Clarke, on brief), for appellants.
(Gerard E. W. Voyer; Taylor Walker, on brief), for appellees Great Atlantic Realty Management and Prudential Commercial Insurance Company.
No brief for appellee Antonio Amador.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Upon reviewing the record and the briefs of the parties, we hold that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
Antonio Amador filed two separate applications for compensation benefits with the commission. The first application alleged an injury by accident on August 20, 1990, arising out of and in the course of Amador's employment with Great Atlantic Realty Management. The second application alleged an injury by accident on April 30, 1991, arising out of and in the course of Amador's employment with Great Atlantic. Liberty Mutual was Great Atlantic's insurance carrier in August, 1990; appellee Prudential Commercial Insurance Company was Great Atlantic's insurance carrier at the time of the April, 1991, accident.
Appellants Great Atlantic and Liberty Mutual Insurance Company contend that the commission erred in finding that the accident of April 30, 1991, resulted in a continuation of the claimant's disc problem which was caused by the August 20, 1990, accident. Because credible evidence supports the commission's finding, that finding is binding and conclusive upon us. Accordingly, we cannot say that the commission erred in entering an award against the employer and Liberty Mutual for payment of compensation for temporary-total work incapacity commencing April 30, 1991, on a continuing basis.
"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 structural change in the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989) (emphasis in the original, citations omitted). ". . . [T]he findings of fact of the Industrial Commission will be upheld when supported by credible evidence."Fairfax County v. Espinola, 11 Va. App. 126, 129, 396 S.E.2d 856, 858 (1990).
On August 20, 1990, while fixing an air conditioner, Amador fell off a ladder, causing pain in his lower back and legs. Thereafter, he was treated by Dr. Richard B. McAdams, a neurosurgeon. On September 19, 1990, Dr. McAdams noted that a lumbar MRI scan and lumbar myelogram confirmed that Amador sustained a herniated disc at L5-S1 on the right side, consistent with right leg pain. He advised Amador that surgery would relieve the problem. Dr. McAdams released Amador to light duty on September 19, 1990. However, on October 26, 1990, Amador had a recurrence of his leg pain and stayed off from work until October 29, 1990. Thereafter, he continued in his light duty position.
On February 12, 1991, Amador reported to Dr. McAdams that he continued to have right leg pain, but that he continued to work. Again, Dr. McAdams noted that Amador would most likely need surgery, and he scheduled to see Amador again in six weeks.
Amador testified that on April 30, 1991, while moving a refrigerator with another employee, one of his legs slipped, at which time he felt pain in his lower back and legs identical to that which he had been experiencing since the August, 1990, accident. He testified that his problems were the same before and after the April 30, 1991, incident. Kim Morgan, one of Amador's co-workers, testified that Amador had always had back pain since he fell off the ladder in August, 1990.
After the April, 1991, incident, Amador returned to Dr. McAdams for treatment. A CT scan of Amador's lower lumbar spine taken on May 13, 1991, with regard to the L5-S1 area revealed the same result as that taken on August 30, 1990. There was no evidence of any new disc herniation or spurring. In a letter from Dr. McAdams to claimant's attorney, dated October 2, 1991, he opined that the injury of August, 1990, was the primary injury and any other injury since was an aggravation of that problem. Dr. McAdams stated that Amador had never really recovered from the August, 1990, injury, and that surgery had been contemplated from the beginning. In Dr. McAdams' deposition, he testified that his neurological examination and findings after April 30, 1991, were the same as before.
The evidence supports the commission's finding that Amador did not experience a sudden mechanical or structural change in his body as a result of the April, 1991, incident. Credible evidence supports the commission's finding that Amador's problem after April 30, 1991, was a continuation of the disc problem caused by the August, 1990, accident. There is no medical evidence contrary to Dr. McAdams' opinion regarding causation. Amador's own testimony supports the conclusion that he did not suffer a new injury on April 30, 1991. He stated that the pain he felt after the April, 1991, incident was the same as he had felt since the August, 1990, incident.
For the reasons stated, we affirm the commission's decision.
Affirmed.