Opinion
Record No. 1288-93-3
December 7, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(William C. Walker; Taylor Walker, on brief), for appellants.
(Gary L. Lumsden, on brief), for appellee Milton Brett Saylor.
(Thomas H. Miller; Melissa W. Scoggins; Gentry, Locke, Rakes Moore, on brief), for appellees Fire Master Enterprises, Inc. and Cincinnati Insurance Company.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
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. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
First Team Auto and its insurer (collectively referred to hereinafter as "employer") contend that the commission erred in finding that Milton Brett Saylor's (claimant) back condition was the result of a new compensable injury by accident arising out of and in the course of his employment, rather than a change in condition from his initial compensable industrial injury of June 5, 1987.
Claimant, a car salesman for employer, testified that, on February 18, 1992, his job duties required that he transfer license plates from a vehicle he had sold onto another vehicle. While performing this task, in a kneeling position, he attempted to hold a nut on the back of one of the license tags with a pair of pliers. The pliers slipped, causing him to pitch forward slightly. He immediately felt a "pop" and experienced sharp pain in the center of his lower back radiating into his left leg.
The medical records reveal that when claimant began to work for the employer he suffered from a preexisting lower back condition caused by an industrial accident which occurred on June 5, 1987. This condition had last required medical treatment three months prior to the February 1992 incident. However, prior to the February 1992 incident, claimant had not experienced pain in the center of his lower back nor had he suffered from leg pain. Moreover, an MRI performed on July 27, 1992 revealed a new objective finding consisting of a disc herniation at L4-5 with an "extruded fragment completely occupying the lateral recess near the upper portion of the body of L5 on the left."
An aggravation of a preexisting condition must occur under circumstances that would not amount to a new compensable injury by accident. Leonard v. Arnold, 218 Va. 210, 214, 237 S.E.2d 97, 100 (1977). A new injury, on the other hand, "must, in itself, satisfy each of the requirements for an 'injury by accident arising out of . . . the employment." First Federal Savings Loan v. Gryder, 9 Va. App. 60, 63, 383 S.E.2d 755, 757-58 (1989). An accident arises out of the employment if "the conditions of the workplace or . . . some significant work related exertion caused the injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989).
On appellate review, we 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). "The Commission's findings of fact are binding on appeal where supported by credible evidence." Board of Supervisors v. Martin, 3 Va. App. 139, 146, 348 S.E.2d 540, 543 (1986).
While in a kneeling position, claimant sustained sudden back pain when the pliers slipped, causing his body to pitch forward. His injury was caused by his sudden forward movement which, in turn, was caused by the slip of his pliers — a condition of the workplace. Thus, evidence supported the commission's finding that the accident arose out of the employment.
The pain from the injury was in a different location than that which he had previously experienced, and an MRI revealed new objective findings. Thus, evidence also supported the commission's finding that the accident caused a new injury and was not an aggravation of an old injury. Accordingly, we cannot say that the commission erred in finding that claimant's injury arose out of his employment on February 18, 1992 and that he sustained a new compensable injury by accident on that date.
For the reasons stated, we affirm the commission's decision.
Affirmed.