Opinion
Record No. 0120-94-2
Decided: July 26, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(P. Dawn Bishop; Sands, Anderson, Marks Miller, on brief), for appellants.
(Tyler E. Williams, III; Baker, Williams and Green, on brief), for appellee Danny Ray Smith.
(C. Ervin Reid; Wright, Robinson, McCammon, Osthimer Tatum, on brief), for appellees Cardinal Homes, Inc. and Transportation Insurance Company.
Present: Judges Benton, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Cardinal Homes, Inc. contends that the Workers' Compensation Commission erred in finding that Danny Ray Smith sustained a compensable change in condition on June 25, 1992, rather than a new 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.
In January 1986, Smith received treatment from Dr. William C. MacCarty, III, an orthopedic surgeon, for lower back and leg pain. A CAT scan performed on January 7, 1986 indicated a bulging disc at L4-5 and a disc herniation at L5-S1 on the left. By the end of February 1986, Smith's back had improved, and he was released to return to tolerable work. In November 1988, he returned to Dr. MacCarty with similar complaints of lower back and leg pain. At that time, Dr. MacCarty diagnosed either a mechanical low back problem or a lumbar disc syndrome. He treated Smith with steroid injections and medication. A CAT scan performed in November 1988 indicated a disc bulge, but no definite disc herniations.
Smith injured his back while working as a painter for Cardinal Homes on November 27, 1991. He hurt his lower back while lifting pieces of lumber. Dr. Donald M. Dingle, an associate of Dr. MacCarty, gave Smith an epidural, and Smith appeared to recover from the November 27, 1991 incident. He did not lose any time from work as a result of this incident. The commission ruled that Smith sustained a compensable injury by accident on November 27, 1991. This finding has not been appealed.
By January 2, 1992, Smith was doing well, and he was to return to work. He carried out his regular work duties, without incident, until June 25, 1992. On that day, he picked up a sixty-six pound box of bifold doors and carried it thirty to forty feet on his left shoulder. His lower back popped as he twisted his body and lowered the box to place it on two sawhorses. The pain caused him to fall to his knees and to rest for twenty minutes. He testified that the twisting motion was the same as the motion that caused his back to hurt in November 1991. He also testified that his episodes of pain since 1986 had always been located in his lower back and leg.
Smith reported the incident to his supervisor. He worked the rest of that day and a full day on June 26, 1992 in a light duty capacity. He did not work June 27 or 28, 1992. When he returned to work on June 29, 1992, his back pain was severe. He worked approximately two and one-half hours before he was required to seek medical care.
Smith returned to Dr. MacCarty for treatment. Dr. MacCarty opined that Smith was once again suffering from pain radiating down his left leg to the foot. Dr. MacCarty opined that Smith had sustained a third recurrence of his lumbar disc syndrome.
Although Smith testified that he told the personnel in Dr. MacCarty's office of the June 25, 1992 accident, Dr. MacCarty noted that Smith's pain had come on over the last week and that there was no new history of injury. Dr. MacCarty noted that when he questioned Smith on June 29, 1992 regarding the possibility of a new injury, Smith had denied any new injury. However, on July 20, 1992, Dr. MacCarty noted that Smith reported that he had suffered a work injury on June 25, 1992.
An MRI performed on August 3, 1992, showed that Smith had an L4-5 central midline focal disc bulge with some mild herniation. Dr. MacCarty later opined that Smith's back condition represented an ongoing chronic problem since at least January 1, 1986. Dr. MacCarty stated that Smith's lower back pain had existed for several years and that Smith had not given him any history of an inciting trauma.
Based upon this record, the commission found that Smith proved a compensable change in condition as of June 25, 1992. The commission found as follows:
[T]he injury of November 27, 1991, was superimposed on [Smith's] preexisting [back] condition. It became symptomatic again on June 25, 1992, as [Smith] was carrying a box. The exacerbation of his low back symptoms resulted in a compensable period of disability.
"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).
[A]ggravation of an old injury or a pre-existing condition is not, per se, tantamount to a "new injury." To be a "new injury" the incident giving rise to the aggravation must, in itself, satisfy each of the requirements for an "injury by accident arising out of . . ." the employment.
First Federal Savings Loan Ass'n v. Gryder, 9 Va. App. 60, 63, 383 S.E.2d 755, 757-58 (1989). "The Commission's finding of fact that [a subsequent] injury was not a new accident is binding on appeal if supported by credible evidence." Board of Supervisors of Henrico County v. Martin, 3 Va. App. 139, 142, 348 S.E.2d 540, 541 (1986).
The evidence discloses that, since at least 1986, Smith has suffered numerous exacerbations of his lower back symptoms. Dr. MacCarty opined on February 18, 1993, that Smith suffered from an ongoing chronic back problem not from a new injury. Smith's testimony, and the opinion expressed by Dr. MacCarty, coupled with the numerous exacerbations of lower back and leg pain suffered by Smith over the years, constitute credible evidence to support the commission's finding that Smith experienced an alteration of his previously injured condition rather than a sudden mechanical or structural change in his body.
For the reasons stated, we affirm the commission's decision.
Affirmed.