Opinion
Record Nos. 0148-93-3 and 0153-93-3
August 10, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Patsy Ann Smith, pro se, on brief).
(S. T. Mullins; Street, Street, Street, Scott Bowman, on briefs), for appellees.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
In Record No. 0153-93-3, Patsy Ann Smith contends that the commission erred in (1) finding that she failed to prove that she sustained an injury by accident arising out of and in the course of her employment on April 6, 1991; and (2) giving greater weight to the reports of Dr. Jim C. Brasfield than to the reports of Dr. Calvin J. Johnson.
Smith also contends that her attorney erred in failing to request a hearing when she was denied a change in treating physicians and in failing to file her original application on the April 6, 1991 incident as an aggravation of the November 14, 1989 compensable injury. These issues relating to Smith's complaints regarding her attorney's conduct will not be considered by this court because they are outside the scope of this appeal.
In Record No. 0148-93-3, Smith contends that the commission erred in (1) finding that the incident of November 10, 1991 did not arise out of and in the course of her employment; (2) failing to find that the November 10, 1991 injury was a compensable aggravation of the injury of January 14, 1989; and (3) failing to give more weight to the reports of Dr. Johnson than to those of Dr. Brasfield.
Upon reviewing the record and briefs of the parties, we conclude that these appeals are without merit. Accordingly, we affirm the decisions of the Workers' Compensation Commission. Rule 5A:27.
On appeal, we consider 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 factual findings of the commission will be upheld when supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). "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. App. 578, 589, 385 S.E.2d 858, 865 (1989). Unless we can say as a matter of law that Smith's evidence was sufficient to sustain that burden of proof, the commission's findings are binding upon us and conclusive. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
April 6, 1991 Incident (Record No. 0153-93-3)
On January 14, 1989, Smith sustained an injury to her lower back in the course of her employment as a floral manager. An MRI scan performed on January 17, 1989 indicated a disc rupture at L5-S1 for which Smith had surgery on January 19, 1989. The employer accepted this injury as compensable and an award was entered on July 30, 1992. Smith continued treatment with Dr. Brasfield until December 11, 1990 for complaints of low back pain, leg pain, and foot drop. As late as October 31, 1990, she complained of lumbar pain. After December 30, 1990 there are no further medical reports until April 7, 1991.
On March 2, 1992, Smith filed an application alleging an injury by accident to her lower back occurring on April 6, 1991. Smith testified that on April 6, 1991 she was straightening vases, which weighed eight ounces each. While on the floor, she felt a crick in her lower back. When she got up, she felt pain which became more severe by the next day. In a recorded statement taken by the employer's insurance adjuster on April 19, 1991, Smith stated that her lower back started hurting while she was cleaning and straightening under counters, but she could not remember any specific incident that caused the pain. Additionally, Smith did not relate to Dr. Matthew Wood, the emergency room doctor she saw on April 7, 1991, that she was moving vases or engaged in any specific incident. Rather, Dr. Wood noted that while at work on April 6, 1991, Smith noticed a nagging, gradually worsening lower back and left buttock pain. Dr. Brasfield's records do not document a new injury occurring on April 6, 1991.
In finding that Smith failed to meet her burden of proving an injury by accident, the commission stated that her evidence did not sufficiently establish an accident occurring at a specific time and place nor did it establish injury or disability.
Smith's testimony, her recorded statement and the medical records of Drs. Wood and Brasfield provide credible evidence to support the commission's finding that her injury of April 6, 1991 was of gradual onset and not due to an identifiable incident. The commission, in its role as fact-finder, was entitled to give more weight to the records of Dr. Brasfield, the treating physician, over those of Dr. Johnson. In any event, Dr. Johnson's report does not support a finding of a specific, identifiable incident.
November 11, 1991 Incident (Record No. 0148-93-3)
Dr. Brasfield continued to treat Smith for lower back pain from April 1991 until October 1991. Smith testified that on November 11, 1991, she was in the stockroom looking through Christmas merchandise for about one hour. She then bent down to pick up some light greenery. When she straightened up, she felt pain in her lower back. She continued to work until December 20, 1991. On that date, she was again examined by Dr. Brasfield. His records do not relate a description of a new injury. Dr. Johnson's report documents a gradual onset of pain in November 1991 while looking through boxes of greenery.
The commission denied Smith's application, finding that she failed to prove an injury by accident arising out of and in the course of her employment, and that she failed to prove causation. The commission found that the medical records supported a gradual onset of pain, not a sudden specific incident caused by Smith's work. Smith's testimony and the medical records of Drs. Brasfield and Johnson provide credible evidence to support these findings. Accordingly, we will not disturb the commission's decision on appeal.
Since the theory of aggravation was not raised below, we will not consider it for the first time on appeal. See Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 192, 355 S.E.2d 347, 349 (1987).
For the reasons stated, we affirm the commission's decisions. The appellees' motions to dismiss are denied.
Affirmed.