Opinion
Record No. 0030-92-2
December 22, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Carlyle R. Wimbish, III (Sands, Anderson, Marks Miller, on brief), for appellants.
James D. Wright for appellee.
Present: Judges Benton, Coleman and Fitzpatrick.
Argued at Richmond, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Phillip Hughes Contractors and National Grange Mutual Insurance Company (jointly referred to as employer) appeal from a decision of the Workers' Compensation Commission awarding Jeffrey S. Willard (claimant) compensation benefits. The employer contends that the commission erred in finding that the claimant had sustained an injury by accident to his back arising out of and in the course of his employment. Finding no merit in the employer's appeal, we affirm the award of the commission.
Claimant was employed by Phillip Hughes Contractors as a vinyl cutter helper. His job involved cutting vinyl siding and moving equipment around each job site. On September 24, 1990, his supervisor instructed him to pick up a 200 pound walkboard and carry it to a designated location on the job site. After moving the walkboard, claimant proceeded to cut two pieces of vinyl siding and experienced disabling lower back pain. He estimated that the pain occurred within ten minutes of carrying the walkboard, while he was cutting the vinyl. Describing the onset of pain, the claimant testified as follows:
A walkboard is a platform which is used in the installation of vinyl or aluminum siding. It is raised and lowered along the side of a building by means of jacks.
I had noticed a pain as I was cutting on the cutboard — I'd — as I started walking around the cutboard and then my legs started going numb. A sharp pain went down my leg and then, therefore, I went down and squatted down and, you know, didn't know what was going on.
The claimant's supervisor testified that he saw the claimant on his knees and that when he asked him what was the matter, the claimant responded that "he pulled his back by picking up the thirty foot walkboard." Immediately the supervisor stopped work at the site and arranged for the claimant to be seen at a local medical facility. The claimant's condition was diagnosed as a herniated disc and he underwent corrective surgery on December 13, 1990. Prior to this incident, the claimant had no history of back problems.
The employer contends that the evidence failed to prove which of the two events, either carrying the walkboard or cutting the vinyl, caused the claimant's injury. As such, the employer argues that the claimant has failed to meet the burden of proof because he is unable to "prove that the cause of his injury was an identifiable incident or sudden participating event."Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989). We disagree.
The commission found that:
The claimant had just carried a 200-pound walk board. He then performed relatively light work for a few minutes which involved cutting vinyl siding. While doing this work, he experienced the disabling onset of back pain. Whether carrying the walk board or cutting the siding caused the disabling injury is not material. Both occurred within minutes of each other. It is clear beyond doubt that his disability was caused by the work which he performed over a span of a few minutes on the morning of September 24, 1990. Injury by industrial accident is, therefore, established.
Willard v. Phillip Hughes Contractors et al., VWC File No. 149-36-43 at 4-5 (Dec. 05, 1991). These factual findings of an injury by accident arising out of and in the course of employment are conclusive and binding on appeal where credible evidence exists to support the findings. Classic Floors, Inc. v. Guy, 9 Va. App. 90, 383 S.E.2d 761 (1989). The employer concedes that there is no contrary evidence in this case, therefore the entire inquiry centers upon whether there is credible evidence to support the findings of the commission.
"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. [The Lane Co., Inc. v. Saunders, 229 Va. 196, 199, 326 S.E.2d 702, 703-04 (1985)] (quoting VEPCO v. Cogbill, 223 Va. 354, 356, 288 S.E.2d 485, 486 (1982))."Morris, 238 Va. at 589, 385 S.E.2d at 865. "Such events are inevitably bounded with rigid temporal precision." Id.
The commission, relying on the testimony of the claimant's supervisor, claimant, and the medical reports, made a finding that the injury occurred due to injury by accident. The employer challenges this finding because the claimant cannot pinpoint exactly the moment of injury. On appeal, however, identification of the exact moment of injury is not required, rather, we review the record to determine if there is credible evidence to support the finding that the claimant proved an identifiable incident. Viewing the evidence in a light most favorable to the claimant as the prevailing party before the commission, we hold that there is credible evidence to support the finding that carrying the 200-pound walkboard or cutting the vinyl was the identifiable incident. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). Specifically, the claimant's testimony asserting that carrying the walkboard was the cause, the colloquy between the supervisor and the claimant at the time of injury, the employer's first report of accident and the attending physician's report of September 30, 1990, all support this conclusion. Further, at oral argument before this Court, the employer conceded that the medical testimony in the record attributes the injury to the claimant's work activities.
The fact that the claimant did not experience pain at the exact moment that he was carrying the walkboard is not fatal to his entitlement. The medical evidence established that "[i]t is not unusual" for pain to become manifest after an initial injury to one's back. The Supreme Court's holding in Morris does not require a claimant to prove that the manifestation of pain happened within a specific time frame. Rather, the claimant must prove that the identifiable incident which caused the injury happened at a reasonably definite time. 238 Va. at 589, 385 S.E.2d at 865.
Both of the claimant's activities, either the carrying of the walkboard or the cutting of the vinyl, were inextricably linked to his work responsibilities and subsequent injury. Each activity constituted an identifiable incident which was bounded with rigid temporal precision and occurred within moments of each other. As in Brown v. Caporaletti, 12 Va. App. 242, 402 S.E.2d 709 (1991), "[t]he causative event occurred within the course of . . . minutes, which the commission properly determined was a reasonably definite time period." Id. at 244, 402 S.E.2d at 710. Whether the claimant herniated his disc carrying the walkboard or cutting the vinyl, the result is unchanged. The claimant's evidence proved that the "`causative danger . . . had its origin in a risk connected with employment and . . . flowed from that source as a rational consequence.'" RT Investments, Ltd. v. Johns, 228 Va. 249, 253, 321 S.E.2d 287, 289 (1984) (quoting Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938)).
The evidence shows that this is not a repetitive trauma case and that the onset of pain was causally related to the carrying of the walkboard or cutting the vinyl. These activities constituted one continuous, albeit brief, job assignment. The medical diagnosis of the claimant's herniated disc and the evidence that the claimant had no prior history of medical problems provides the necessary credible evidence to support the commission's finding that the claimant suffered an obvious sudden or mechanical or structural change to the body. See Seven-Up Bottling Co. v. Moseley, 230 Va. 245, 335 S.E.2d 272 (1985) (affirming commission's award for ruptured disc injury where claimant felt "stress" while delivering sodas to store and later felt "back strain" causing pain).
The commission found that the claimant's disability was caused by an industrial accident injury. Because we find that there is credible evidence in the record satisfying all the components of the injury by accident test, as explained in Morris v. Morris, we affirm the award.
Affirmed.