Opinion
Record No. 2223-93-2
April 19, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert S. Ganey, on brief), for appellant.
(William B. Pierce, Jr.; Cathie W. Howard; Williams, Butler Pierce, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Carolyn M. Gallagher (claimant) contends that the Workers' Compensation Commission (commission) erred in finding that she failed to prove she sustained an injury by accident arising out of and in the course of her employment on November 23, 1992.
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 commission. Rule 5A:27.
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 and sudden mechanical or structural change in the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989) (emphasis in original, citations omitted). Unless we 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's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In denying claimant's application, the commission found that the evidence did not prove an identifiable incident or sudden precipitating event, but rather demonstrated that claimant's shoulder injury arose as a result of cumulative exertion throughout the day on November 23, 1992. Credible evidence supports this finding.
Claimant testified that she injured her shoulder on November 23, 1992 when she lifted a forty pound bag of dog food in the course of her employment as a cashier. This testimony conflicted with the initial medical history given by claimant to Dr. Bernard Lublin and with claimant's statements given on January 13, 1993 to Carolyn Krause ("Krause"), a claims specialist working for the employer.
When first seen by Dr. Lublin on December 14, 1992, claimant completed a patient information sheet upon which she wrote, "Nov 23 Hurt shoulder at work lifting heavy bags of dog food." Dr. Lublin's report of that date reflects that claimant related the onset of pain to lifting heavy bags of dog food in the course of her work on November 23, 1992. Krause testified that claimant told her that she felt soreness in her shoulder after lifting heavy bags of dog food over the course of her shift. Krause's testimony and her notes indicated that claimant denied any specific incident or experiencing pain upon lifting any particular bag, even when Krause confronted claimant with the Patient First report which contained a notation that claimant hurt herself when she lifted "a" bag of dog food.
Based upon Krause's testimony and the inconsistencies in claimant's version of the alleged incident, we cannot say as a matter of law that claimant's evidence was sufficient to prove an injury by accident. "The fact that there is contrary evidence in the record is of no consequence if there is credible evidence to support the commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
For the reasons stated, we affirm the commission's decision.
Affirmed.