COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
DELMA T. JAMISON
v. Record No. 1161-96-3 MEMORANDUM OPINION *
PER CURIAM
SEARS ROEBUCK & COMPANY JANUARY 7, 1997
AND
LUMBERMENS MUTUAL CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Delma T. Jamison, pro se, on brief).
(Gregory T. Casker; Daniel, Vaughan, Medley &
Smitherman, on brief), for appellees.
Delma T. Jamison (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that she
failed to prove she suffered (1) an injury by accident arising
out of and in the course of her employment on October 22, 1993,
or (2) an occupational disease causally related to her
employment. 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.
I.
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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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. 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. Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Claimant testified that on three occasions, including
October 22, 1993, she felt a pull in her left knee as she lifted
a forty-pound battery at work. Claimant's supervisor testified
that claimant complained about lifting batteries but never
reported a specific incident to him. Employer's personnel
department representative testified that claimant did not report
her alleged October 1993 back injury until December 8, 1993.
Dr. Arthur F. Carter's medical records reflect that
claimant's knee symptoms began in December 1992. Dr. Carter
diagnosed internal derangement of the left knee and performed
arthroscopic surgery on claimant's left knee on May 20, 1993.
Dr. Carter's October 22, 1993 office notes indicate that he
treated claimant on that date. However, the notes do not contain
any history of an injury caused by lifting a battery on that
date. Rather, Dr. Carter's notes indicate that claimant
complained of pain in both legs and of dragging and weakness in
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her left knee. Dr. Carter diagnosed sciatica and synovitis of
the left ankle.
Claimant returned to Dr. Carter on November 8, 1993 and
November 29, 1993, complaining of pain radiating from her ankle
up her left leg, pain radiating from her neck to her shoulders,
numbness in her calf, and "knee pops." Dr. Carter's office notes
for these dates do not report an accident occurring on October
22, 1993 nor do they causally relate claimant's symptoms to an
incident at work. Likewise, in his office notes dated January 4,
1994 and February 4, 1994, Dr. Carter did not report a
work-related incident nor did he relate claimant's symptoms to
her employment.
The commission found that claimant, who had suffered from
continuing discomfort in her left leg and knee since at least
December 1992, failed to prove she sustained a new injury on
October 22, 1993. Based upon this record, we cannot say as a
matter of law that claimant's evidence sustained her burden of
proving a compensable injury by accident.
II.
A claimant must prove the existence of an occupational
disease by a preponderance of the evidence. Virginia Dep't of
State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308
(1985). An occupational disease is one "arising out of and in
the course of employment." Code § 65.2-400(A). "A disease shall
be deemed to arise out of the employment" when the evidence
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establishes six elements. Code § 65.2-400(B). Elements (1) and
(6) require evidence showing "[a] direct causal connection
between the conditions under which work is performed and the
occupational disease" and that the disease "had its origin in a
risk connected with the employment and flowed from that source as
a natural consequence . . . ." Code § 65.2-400(B)(1) and (B)(6).
No medical evidence established that claimant suffered from
a disease which arose out of and in the course of her employment.
Accordingly, we cannot say as a matter of law that claimant met
her burden of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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