COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
MERILYN JACKSON BURGESS
MEMORANDUM OPINION *
v. Record No. 1120-98-1 PER CURIAM
NOVEMBER 24, 1998
HAMPTON (CITY OF) SCHOOL BOARD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Chester L. Smith, on brief), for appellant.
No brief for appellee.
Merilyn Jackson Burgess ("claimant") contends that the
Workers' Compensation Commission ("commission") erred in finding
that she failed to prove that she sustained an injury by accident
arising out of and in the course of her employment on either
January 23, 1997 or January 29, 1997. Upon reviewing the record
and claimant's brief, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the commission's
decision. See Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "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 that it
resulted in an obvious sudden mechanical or structural change in
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858,
865 (1989). Unless we can say as a matter of law that claimant's
evidence sustained her burden of proof, the commission's findings
are binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The commission ruled that claimant did not prove that she
sustained a sudden mechanical change in her body as a result of
an identifiable incident occurring at work on either January 23,
1997 or January 29, 1997. In so ruling, the commission found as
follows:
The medical evidence fails to establish
a new injury, and fails to relate the
claimant's current symptoms to the alleged
work accidents. Although Dr. [Shawke]
Soueidan diagnosed fibromyalgia type pain
secondary to physical trauma, that had been
the diagnosis since 1994. We can only
speculate as to the physical trauma Dr.
Soueidan was referencing. Dr. Soueidan had
previously described numerous injuries and
accidents, and even noted that [claimant] had
been involved in a vehicular accident within
a month of her visit on January 31, 1997. He
did not specifically relate any new injury or
disability to the alleged work accidents.
Indeed, he stated that [claimant] had been
quite frustrated with her degree of pain over
the past two years. Dr. [Elaine] Richardson
made no mention of the alleged work
accidents. The medical records establish
that the claimant's condition has been
chronic since at least 1993, and that her
pain "is exacerbated by excessive physical
activity." They do not establish a new
mechanical or structural change in her body
on January 23 or 29, 1997, nor do they prove
that the current disability is causally
related to the alleged work accidents.
The commission's findings are amply supported by the record.
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No medical evidence mentioned the January 23 or 29, 1997
specific work-related incidents alleged by claimant, nor did any
medical evidence causally relate a January 23 or 29, 1997
work-related incident to a structural or mechanical change in
claimant's body. In light of the lack of any persuasive
medical evidence to establish that claimant sustained a
structural or mechanical change in her body as the result of a
work-related accident on either January 23 or 29, 1997, we cannot
say as a matter of law that claimant's evidence sustained her
burden of proof. Accordingly, we affirm the commission's
decision.
Affirmed.
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