COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia
AVIS RENT A CAR, INC. AND
CONTINENTAL CASUALTY COMPANY
MEMORANDUM OPINION* BY
v. Record No. 0868-00-1 JUDGE ROBERT P. FRANK
NOVEMBER 21, 2000
ELIZABETH J. CALVIN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William C. Walker (Donna White Kearney;
Taylor & Walker, P.C., on brief), for
appellants.
Robert E. Walsh (Rutter, Walsh, Mills &
Rutter, L.L.P., on brief), for appellee.
Avis Rent A Car, Inc. and its insurer (appellant), contend
the Workers' Compensation Commission (commission) erred in
finding that Elizabeth J. Calvin (claimant) sustained an injury
by accident. For the reasons stated, we affirm the commission's
award.
I. BACKGROUND
Claimant was employed as a reservationist for appellant.
She was talking to a customer on the telephone while seated at
her computer workstation. The customer was "a little bit upset"
and claimant needed to refer to her procedure manual. The
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
manual was located in the left corner of her workstation.
Claimant described the manual as a binder, between two and three
inches wide and twelve inches across. Claimant could not
describe what the manual weighed but stated that "it had a
little bit of weight to it." She said, “It was a little bit
difficult to pick up.” Claimant reached for the manual with her
right hand, picked it up, and felt a "pull in her back between
her shoulder blades." She stated, "[The manual] started going
down and I grabbed it with my left hand so it wouldn't fall."
The "pull" took her breath away. Claimant then completed the
phone call with the customer. She immediately complained to a
co-worker that she had a "crick" in her back.
Eventually, claimant was referred to a neurosurgeon, Dr.
David C. Waters, who first examined her on August 20, 1997. Dr.
Waters noted the following:
Her current symptom complex began in April
of 1997. Since that time, she has had a
progression of right shoulder and right
upper extremity complaints, which have been
refractory to the usual conservative
therapy. The patient has a great deal of
pain in and about the right scapula. The
pain will extend down her posterior forearm,
and she will also have pain and tingling
which seem to be in the ring and small
finger of the right hand. Her symptoms were
abrupt in onset, and have been fairly
refractory to conservative therapy,
consisting of rest, wearing a collar, and
medication.
(Emphasis added).
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The deputy commissioner found that claimant’s testimony
about the mechanism of her injury was credible and that she
established she suffered a compensable accident despite some
inconsistencies in her medical records. The full commission
affirmed the deputy commissioner.
II. ANALYSIS
"In order to carry [the] 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) (citation omitted) (emphasis in orginal).
"Unless we can say as a matter of law that the evidence
submitted by [claimant] was sufficient to sustain [her] burden,
then the Commission's finding that [she] did not suffer injury
by accident is binding and conclusive upon us." Tomko v.
Michael's Plastering Co., Inc., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970) (citations omitted).
"In order to establish an injury by accident, a claimant
must prove: (1) an identifiable incident; (2) that occurs at
some reasonably definite time; (3) an obvious sudden mechanical
or structural change in the body; and (4) a causal connection
between the incident and the bodily change." Chesterfield
County v. Dunn, 9 Va. App. 475, 476, 389 S.E.2d 180, 181 (1990)
(citation omitted). "The actual determination of causation is a
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factual finding that will not be disturbed on appeal if there is
credible evidence to support the finding." Ingersoll-Rand Co.
v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989)
(citing Code § 65.1-98).
On appeal, "we review the evidence in the light most
favorable to the prevailing party." R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990)
(citation omitted). Claimant testified that as she reached for
and picked up the procedure manual, she felt a "pull in her
back" between her shoulder blades. The pain "took her breath
away." The neurosurgeon, Dr. Waters, opined that "her symptoms
were abrupt in onset."
There are sufficient facts to support the commission's
finding that claimant suffered an injury by accident, an
identifiable incident that resulted in an obvious sudden
mechanical change in the body. 1 Therefore, we affirm the award
of the commission.
Affirmed.
1
Although appellant's brief and oral argument addressed
whether the injury arose out of claimant's employment, we limit
our analysis to the question presented, whether the injury was
by accident. Rule 5A:20.
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