Opinion
Record No. 1830-92-1
April 13, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Robert J. Macbeth, Jr.; Rutter Montagna, on brief), for appellant.
(William L. Dudley, Jr.; Lawrence A. Dunn; Knight, Dudley, Dezern Clarke, on brief), for appellees.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Evangeline Y. Jordan contends that the commission erred in finding that she failed to prove a compensable injury by accident. 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). Upon reviewing that evidence 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.
The evidence proved that Jordan was employed as a nursing assistant by Camelot Hall Nursing Home. Her duties consisted of bathing patients, turning the patients every two hours, and keeping the rooms clean. Jordan routinely attended twenty patients per shift. She testified that it was not uncommon for patients to push against her forcefully and that often she had to hold patients in awkward positions.
Jordan testified that after work on September 3, 1991, she went home and followed her normal routine. She went to bed at approximately 9:00 a.m., and arose around 2:30 p.m., as she normally did, in order to greet her children when they arrived home from school. Upon awakening, Jordan felt pain in her left shoulder.
Jordan returned to work, as scheduled, on September 5, 1991, at 11:00 p.m. and reported the injury to her supervisor. Although she completed her work shift, she went to the hospital emergency room when her work shift ended. The medical report indicated that she had an acute sprain of the left shoulder and scapula.
Jordan testified that she did not report the injury to her employer on September 3, 1991, because at that time she did not know that anything had happened to her. Jordan testified that she had to search her memory for a possible cause of the pain she began to feel after awakening at 2:30 p.m. on September 3, 1991. She believed it must have been connected with work, because work was the only place she performed any physical labor. She recalled that on September 3, 1991 at approximately 2:00 a.m., she was attending to a patient in a bed when the patient attempted to push backward onto her back. Jordan held the patient with her extended left arm while removing a bed pad and cleaning the patient with her right hand. Jordan completed her shift at 7:00 a.m. without incident. She then returned home.
Although Jordan felt no pain or sensation on September 3, 1991, with the patient, she concluded that because this incident was the only incident out of the ordinary that she could remember, it may have caused the injury. She also testified that she experienced a strange sensation in her left arm while driving home at 7:00 a.m. on September 3, 1991. However, she did not relate this fact in her September 24, 1991 recorded statement to the insurance adjuster. Upon this evidence, the commission found that Jordan failed to prove an injury by accident occurring at a reasonably specific time and place. We conclude that credible evidence supports the commission's finding.
"In order to carry [her] burden of proving an 'injury by accident,' a claimant must prove that the cause of [her] 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). "The fact that contrary evidence may be in the record is of no consequence if there is credible evidence to support the Commission's findings." Russell Loungewear v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986).
Only in retrospect was Jordan able to connect her shoulder injury with a particular movement made or action taken at a particular time at work. Moreover, Jordan could only speculate as to the cause of her injury. Her mere speculation that she injured herself in the incident with the patient is insufficient to meet her burden of proving an identifiable incident or sudden precipitating event that resulted in an obvious sudden mechanical or structural change in her body.
Additionally, the medical evidence does not support Jordan's theory of causation. The medical records note an incident occurring at work, but do not connect it with any degree of probability to Jordan's injury. The medical evidence merely recites the historical facts as given by Jordan. Because the medical records and testimony do not as a matter of law support a conclusion that Jordan sustained an injury by accident,see Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970), we affirm the decision of the commission.
Affirmed.