COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
WASHINGTON COUNTY SERVICE AUTHORITY AND
VML INSURANCE PROGRAMS
MEMORANDUM OPINION*
v. Record No. 2666-01-3 PER CURIAM
FEBRUARY 19, 2002
DOUGLAS HARVEY TRIVITT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Michael F. Blair; Lisa Frisina Clement;
Penn Stuart, on brief), for appellants.
(Ginger J. Largen; Morefield & Largen,
P.L.C., on brief), for appellee.
Washington County Service Authority and its insurer
(hereinafter referred to as "employer") contend the Workers'
Compensation Commission erred in finding that Douglas Harvey
Trivitt (claimant) proved that he sustained an injury by
accident arising out of and in the course of his employment on
May 5, 2000. Upon reviewing the record and the parties' briefs,
we conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. Rule 5A:27.
"In order to carry [the] burden of proving an 'injury by
accident,' a claimant must prove that the cause of [the] injury
was an identifiable incident or sudden precipitating event and
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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). Factual findings made by the commission
will be upheld on appeal if supported by credible evidence. See
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989).
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Claimant testified that on May 5, 2000, while lifting a
fifty-pound bag of chemicals to hand to his supervisor, he "felt
a pop and a severe pain in [his] back." George Hagy, claimant's
supervisor, testified that he was holding a door open, assisting
the loading of the bags of chemicals, when he saw claimant
lifting a bag about two feet off of the floor and "he kind of
locked up in a stooped position." Hagy testified that claimant
was sent to the emergency room because "he hurt his back."
Claimant admitted that on May 5, 2000, prior to the incident, he
had pain "here and there" in his back, but he functioned and was
able to perform his work duties.
There was no dispute that claimant had suffered from
significant back problems before May 5, 2000. As late as April
4, 2000, Dr. Carey McKain, claimant's treating physician, noted
that claimant was "doing terribly" with "severe back pain, worse
than his leg pain . . . ." On April 18, 2000, Dr. McKain noted
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that a repeat MRI did not show "any new disc lesions." In
addition, Dr. McKain referred claimant to Dr. Jeffrey McConnell
for an opinion regarding fusion surgery.
The May 5, 2000 emergency room report revealed that
claimant complained of "low back [pain] into [right] hip and
leg." Claimant reported the May 5, 2000 accident to Dr. McKain
in a telephone conversation. Claimant told Dr. McKain he
sustained a "marked increase of pain localized to his back,
running into his hip but no new radicular affect."
On May 19, 2000, Dr. McKain noted that claimant was "doing
terribly, having injured his back on the job when he was picking
up sacks of fluoride on May 5, 2000." Dr. McKain noted claimant
had increased his dosage of analgesics and that the
"exacerbation of his pain is mostly in the back, but he has some
radiation into both hips and thighs . . . ." He also noted that
"[o]n straight leg raise he has tenderness which goes into the
buttock on both sides, but with marked back pain, much worse
than in the past." Dr. McKain opined that it was "clear that
[claimant] has significantly worsened his condition," but chose
to defer treatment modalities pending Dr. McConnell's
recommendations.
On May 25, 2000, Dr. McKain indicated that claimant had
agreed to proceed with Dr. McConnell's recommendation of surgery
"if [his] discogram was confirmatory." On July 6, 2000,
Dr. McKain noted that claimant's increased pain had not subsided
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after the May 5, 2000 incident, indicating that claimant
suffered from marked back pain and some leg pain. On August 17,
2000, claimant complained to Dr. McKain of "pain mostly in the
right leg . . . ."
On August 28, 2000, Dr. McKain responded to a letter from
counsel for the insurer of the original compensable claim. In
his response, Dr. McKain agreed that the May 5, 2000 accident
"aggravated [claimant's] preexisting condition with a noticeable
increase in symptoms and an inability to continue working."
Dr. McKain agreed that claimant's symptoms after May 5, 2000
were "materially different" from before the accident, requiring
more medication and additional work restrictions.
In his September 25, 2000 deposition, Dr. McKain testified
that claimant's pain was much worse after the May 5, 2000
incident and, therefore, he would conclude that "something
materially different . . . happened on that day." Dr. McKain
stated that after the May 5, 2000 incident, claimant had more
pain and less mobility; his medications had increased, and he
was unable to work, whereas after his second surgery "he
continued to work even though he was having problems."
In ruling that claimant proved he sustained an injury by
accident on May 5, 2000, the commission found as follows:
[T]he medical evidence . . . showed that it
was unanimous that the claimant exacerbated
his preexisting condition on May 5, 2000.
. . . Dr. McKain noted "materially
different" symptoms--spasm, less mobility,
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worse pain, and increased medication use--
since the accident. He also noted that the
claimant had steadily worked throughout his
treatment, despite nagging complaints of
pain, but that since the May 5, 2000,
accident, he was unable to work.
Before the May 5, 2000 accident, the claimant's complaints
were primarily back-pain complaints, as opposed to radicular
complaints, and if there were reports of radicular symptoms,
they were bilateral in nature. After the May 5, 2000 accident,
however, his pain appeared to be located primarily in his right
leg. The emergency room report noted on May 5, 2000 that the
claimant complained of back and right leg pain. Dr. McConnell
noted complaints of right lower back and right buttock pain.
Dr. McKain noted on May 19, 2000 that straight leg raising
produced pain "much worse than in the past" and on August 17,
2000 described the pain as being "mostly in the right leg."
Dr. William McIlwain also noted that the claimant's "pain is
more leg pain than back pain now" and described right-leg pain.
Notwithstanding claimant's significant pre-existing
conditions, his testimony was clear that he was lifting a heavy
object and felt a sudden "pop" and severe pain. This accident
was witnessed and corroborated at the hearing. The medical
evidence showed increased symptoms and a markedly decreased
ability to function. Finally, the medical evidence was
unanimous that the May 5, 2000 accident aggravated the
claimant's pre-existing condition.
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Claimant's testimony and the medical records of Drs. McKain
and McConnell provide ample credible evidence to support the
commission's findings. Based upon that credible evidence, the
commission, as fact finder, could reasonably infer that the
exacerbation of claimant's back condition was caused by an
identifiable incident that resulted in an obvious sudden
mechanical or structural change in his body. "In determining
whether credible evidence exists [to support the commission's
ruling], the appellate court does not retry the facts, reweigh
the preponderance of the evidence, or make its own determination
of the credibility of the witnesses." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). "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." Id.
For these reasons, we affirm the commission's decision.
Affirmed.
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Washington Co. Serv. Auth. v. Douglas Trivitt
Combined Opinion