Opinion
Record No. 1370-94-4
Decided: March 21, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
John F. Anderson for appellant.
John S. Nevin (Semmes, Bowen Semmes, on brief), for appellees.
Present: Chief Judge Moon, Judge Fitzpatrick and Senior Judge Duff
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Jesse M. Combs contends that the Workers' Compensation Commission erred in finding that he failed to prove an injury by accident arising out of and in the course of his employment on November 9, 1992. Finding no error, we affirm the commission's decision.
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 his burden of proving an 'injury by accident,' a claimant must prove the cause of his injury was an identifiable incident or sudden precipitating event and that it resulted in an obvious and sudden mechanical or structural change in the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989). Claimant must also prove that the identifiable incident or sudden precipitating event occurred at a reasonably definite time. Grove v. Allied Signal, Inc., 15 Va. App. 17, 22, 421 S.E.2d 32, 35 (1992). Unless we can say as a matter of law that Combs' evidence sustained his burden of proof, the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In reversing the deputy commissioner's decision and denying Combs' application, the commission found that the evidence did not prove an identifiable incident or sudden precipitating event, but rather demonstrated that Combs' back injury arose as a result of repetitive lifting throughout the day on November 9, 1992.
Combs' recorded statement given to employer's insurance carrier on February 1, 1993, his hearing testimony, and the medical records support this finding. Combs was questioned repeatedly during the recorded statement as to what happened on November 9, 1992. He consistently stated that his back pain came on gradually, and that nothing unusual occurred during his shift that day. He stated that he performed his usual work lifting brake blocks into a tester when he gradually began to experience back pain. At the hearing, Combs testified that he felt a sharp pain in his back while twisting, pulling, and lifting brake blocks on November 9, 1992, but he did not identify a specific event or incident occurring at a reasonably definite time that caused his pain. Finally, the medical records do not contain any history of an identifiable incident, but rather reflect that Combs' back pain came on gradually after lifting heavy brake blocks at work.
Based upon Combs' statements and the content of the medical records, we cannot say as a matter of law that his evidence was sufficient to sustain his burden to prove an injury by accident. Accordingly, we affirm the commission's decision.
Affirmed.