Opinion
Record No. 0248-94-1
Decided: August 2, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(Mary G. Commander; Goldblatt, Lipkin Cohen, on brief), for appellant.
(Frederick M. Bruner, on brief), for appellees.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
David Gonzales (claimant) contends that the Workers' Compensation Commission (commission) erred in finding that he failed to prove he sustained an injury by accident arising out of and in the course of his employment on February 10, 1993. 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.
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 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 original) (citations omitted). Unless we can say as a matter of law that claimant's evidence was sufficient to sustain his burden of proof, the commission's finding is binding and conclusive upon us. Tomko v. Michael's Plastering Co., Inc., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In denying claimant's application, the commission found that the medical opinions in the record, together with the uncontradicted testimony of claimant, did not satisfy the requirements for proving an injury by accident as set forth in Morris. The commission found that claimant failed to establish an identifiable incident or sudden precipitating event which caused his back pain. The commission found that the medical evidence could just as easily be interpreted to apply to a cumulative injury as it could to an injury resulting from a particular event. Credible evidence supports these findings.
Claimant testified that, on February 10, 1993, he ascended a 1,000 foot tower, with a 1,000 foot rope attached to his safety belt, while in the course of his employment as a rigger/inspector. After he descended 100 feet down the tower, he felt a "pull and a pain" in his back. At that time, he was given permission to drop the rope. When he reached the ground, he told his co-workers that he had hurt his back, but he did not describe any specific event. Larry Skinner, the project coordinator, testified that on February 11, 1993, claimant told him that "he felt a slight pain in his back when he got off the tower." David Taylor, a co-worker, testified that when claimant got off the tower he stated that "he had hurt his back."
The medical records of Dr. Ernesto Luciano-Perez, an orthopedic surgeon, reflect that claimant described having discomfort in his back by the time he came down from the tower. The medical records of Dr. David L. Durica, an orthopedic surgeon, reflect that claimant described developing back pain after climbing 900 feet up the tower. In addition, claimant had a history of chronic back problems in 1989 and 1990.
Based upon the testimony of claimant's co-workers, coupled with a medical history which provides no evidence of an identifiable incident or sudden precipitating event which might have caused claimant's back pain, we cannot say as a matter of law that the commission erred in finding that claimant's evidence was insufficient to prove a compensable injury by accident.
For the reasons stated, we affirm the commission's decision.
Affirmed.