COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
HARRY S. SMITH
v. Record No. 1380-96-3 MEMORANDUM OPINION *
PER CURIAM
BABCOCK & WILCOX COMPANY JANUARY 14, 1997
AND
PACIFIC EMPLOYERS INSURANCE
COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James B. Feinman; Esther S. McGuinn, on
brief), for appellant.
(Ruth Nathanson; Midkiff & Hiner, on brief),
for appellees.
Harry S. Smith ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in finding that he
failed to prove he sustained an injury by accident arising out of
and in the course of his employment on July 24, 1994. Upon
reviewing the record and the briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the commission's decision. Rule 5A:27.
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). "In
order to carry his burden of proving an 'injury by accident,' a
claimant must prove that the cause of his injury was an
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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). By contrast, a gradually incurred injury is not an
injury by accident within the meaning of the Act. Middlekauff v.
Allstate Ins. Co., 247 Va. 150, 154, 439 S.E.2d 394, 397 (1994).
Unless we can say as a matter of law that claimant's evidence
sustained his burden of proof, the commission's findings are
binding and conclusive upon us. Tomko v. Michael's Plastering
Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Claimant testified that, on July 24, 1994, while at work, he
helped to remove and replace an air conditioner compressor. The
air conditioning unit, which weighed 200 pounds, was located in a
sheet metal enclosure on the roof of a building. Lack of space
inside the enclosure made it difficult to move around and work on
the compressor. As claimant and a co-worker lifted the
compressor by holding either end of a strap placed under the
compressor, claimant felt a pull or slight strain in his back.
Claimant felt no other pain and continued to work the remainder
of his shift, without increased discomfort. However, he awoke in
pain the next morning. His pain progressively worsened over the
course of the day.
Based upon claimant's testimony, the commission found that
he proved a precipitating incident. However, the commission
denied claimant's application on the ground that he failed to
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prove that his back injury, if caused by his work, resulted from
the compressor lifting incident, rather than the cumulative
effect of lifting, pulling, bending, jerking, and shoving
throughout the work day. In so ruling, the commission gave more
weight to the opinion of Dr. Donald G. Branson than to the
opinion of Dr. William C. Andrews, Jr. Dr. Branson declined to
offer an opinion about causation, stating that he could not do so
because of a conflict in the initial medical history. The
commission found as follows:
As Dr. Branson noted, the history
recorded by the initial treating physicians
did not report a symptomatic injury while
lifting the air conditioner compressor, only
that it was one and perhaps the heaviest of
multiple lifting tasks [claimant] performed
that day. His symptoms were reportedly
manifest only the next day after a long car
ride, and Dr. Branson reasonably declined to
offer an opinion on causation based on this
history. By the time the claimant saw Dr.
Andrews, he apparently attributed his injury
to lifting the compressor, and Dr. Andrews
based his opinion of causation on such
history.
These findings are supported by Dr. Cuong Do's July 26, 1994
office notes. Those notes reflect that claimant gave a history
to the nurse of "lifting an air compressor on July 24, 1994," and
he gave a history to Dr. Cuong Do of "lifting a lot of heavy
material on Sunday . . . and on Monday morning approximately
11:00 after long car ride, [claimant] noticed he had some lower
back pain."
In light of the conflicting initial medical histories and
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Dr. Branson's opinion, the commission, as fact finder, was
entitled to reject Dr. Andrews' opinion on causation. "Questions
raised by conflicting medical opinions must be decided by the
commission." Penley v. Island Creek Coal Co., 8 Va. App. 310,
318, 381 S.E.2d 231, 236 (1989). Based upon the lack of
persuasive medical evidence to establish that the July 24, 1994
lifting incident caused claimant's back injury, we cannot say as
a matter of law that claimant met his burden of proof.
Claimant also argues that the commission denied him due
process by considering inadmissible hearsay contained in the
medical records to find that he failed to meet his burden of
proof. This contention is without merit. In McMurphy Coal Co.
v. Miller, 20 Va. App. 57, 59, 455 S.E.2d 265, 266 (1995), we
held that under common law rules of evidence, medical histories
are admissible substantively as party admissions. Thereafter, we
recognized in Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314,
456 S.E.2d 541 (1995), that, under Rule 2.2 of the Rules of the
Workers' Compensation Commission, the commission may consider
medical histories in determining how an accident occurred. Rule
2.2 gives the commission "'[t]he discretion to give probative
weight to hearsay statements in arriving at its findings of
fact.'" Id. at 319, 456 S.E.2d at 544 (quoting Williams v.
Fuqua, 199 Va. 709, 714, 101 S.E.2d 562, 566 (1958)).
For these reasons, we affirm the commission's decision.
Affirmed.
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