COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
NEW RIVER CASTINGS
AND
ARGONAUT INSURANCE COMPANY
v. Record No. 1027-96-3
KEVIN C. HURST
MEMORANDUM OPINION *
AND PER CURIAM
NOVEMBER 12, 1996
KEVIN C. HURST
v. Record No. 1149-96-3
NEW RIVER CASTINGS
AND
ARGONAUT INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(J. Gorman Rosenberger, Jr.; Wilson, Garbee &
Rosenberger, on briefs), for New River
Castings and Argonaut Insurance Company.
(Deborah W. Dobbins; Gilmer, Sadler, Ingram,
Sutherland & Hutton, on briefs), for Kevin C.
Hurst.
New River Castings and its insurer (hereinafter collectively
referred to as "employer") contend that the Workers' Compensation
Commission ("commission") erred in finding that Kevin C. Hurst
("claimant") proved (1) he sustained a sudden mechanical change
in his body as the result of an identifiable work-related
incident on September 26, 1994; (2) a causal connection existed
between his right scapula condition and the September 26, 1994
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
work-related incident; and (3) he remained on light-duty status
as a result of the September 26, 1994 work-related incident.
(Record No. 1027-96-3). Claimant contends that the commission
erred in finding that he failed to prove he made a good faith
effort to market his residual work capacity after March 17, 1995.
(Record No. 1149-96-3). Upon reviewing the record and the
briefs of the parties, we find that these appeals are without
merit. Accordingly, we summarily affirm the commission's
decision as to all issues raised by the parties. 1 Rule 5A:27.
Injury by Accident (Record No. 1027-96-3)
On September 26, 1994, claimant had been working for
employer as a "knock-out" laborer for three weeks. On that date,
he was using a sledgehammer to knock iron risers off spindles.
At a particular point in time, he hit the riser with the hammer
and felt a severe pain in the right middle portion of his back.
Claimant was not physically able to continue working and
immediately sought medical treatment at the first aid station.
David Daily, the first aid attendant on duty, testified that
claimant told him "he was working at the knock-out job and he was
hammering castings, degating castings. And when he swung the
hammer down he felt a pain and he came over to first aid to get
1
Claimant filed a motion to remand for consideration of
after-discovered evidence. The evidence submitted by claimant
with the motion relates to a charge of discrimination claimant
filed with the Equal Opportunity Commission against employer
under the Americans with Disabilities Act. Because this evidence
does not contain any information relevant or material to the
issues on appeal, we deny claimant's motion.
2
treated for that." On October 4, 1994, Dr. Matthew Skewes
diagnosed claimant as suffering from back pain and spasms related
to the September 26, 1994 work-related incident. Dr. Skewes
noted that claimant "thinks pulled muscle swinging - sledge
hammer." 2
"In order to carry his 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, 598, 385 S.E.2d
858, 865 (1989). On appeal, factual findings made by the
commission will be upheld when supported by credible evidence.
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989).
The commission held that "claimant's uncontradicted
testimony, corroborated by the testimony of the emergency medical
technician, supports the finding of a sudden, identifiable
incident contemporaneous with a mechanical change in the body
which resulted in injury on September 26, 1996 [sic]." In so
ruling, the commission found as follows:
The claimant's uncontradicted testimony
clearly identified a particular moment when
he was swinging the sledgehammer that he felt
2
Several years before the September 1994 accident, claimant
underwent kidney surgery in the same area where he felt the
sudden pain on September 26, 1994. Dr. Sinclair Ross Mackay
opined that preexisting weakness in this area caused by the
surgery made claimant more prone to straining his right flank
area.
3
pain, followed almost immediately by swelling
in the right flank muscles.
It is of no moment that the claimant had
a muscular deficiency from prior surgery.
The employer takes the employee with all his
pre-disposing weaknesses and infirmities.
Thus, the employer is liable for the effects
of the industrial accident that aggravates or
otherwise contributes to a preexisting
condition or other weakness to produce
further injury.
Claimant's uncontradicted testimony, corroborated by the
history taken by Daily and Dr. Skewes, constitutes credible
evidence to support the commission's finding that claimant
experienced an identifiable incident on September 26, 1994
resulting in a sudden mechanical or structural change in his
right flank area.
Causation (Record No. 1027-96-3)
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). "The
actual determination of causation is a 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).
Drs. Skewes and Mackay acknowledged that claimant's right
flank pain developed at a particular point in time when claimant
swung the sledgehammer on September 26, 1994. This testimony,
along with claimant's testimony that he had never felt this
particular pain before, constitutes credible evidence to support
4
the commission's finding that claimant established the requisite
causal connection between the accident and the injury. The
opinions of Drs. Mackay and Rollin J. Hawley that the claimant's
injury was a reasonably expected result of claimant using already
weakened muscles for three weeks is of no consequence. "[T]he
employer takes the employee as he is and if the employee is
suffering some physical infirmity, which is aggravated by an
industrial accident, the employer is responsible for the end
result of such accident." McDaniel v. Colonial Mechanical Corp.,
3 Va. App. 408, 414, 350 S.E.2d 225, 228 (1986).
Light-Duty Status (Record No. 1027-96-3)
Drs. Mackay and Hawley opined that claimant could not return
to his heavy manual labor job with employer. On October 24,
1994, after claimant's unsuccessful attempt to return to his
pre-injury work, Dr. Skewes restricted claimant to light-duty,
from which claimant has not been released. In his deposition
testimony, Dr. Skewes opined that if claimant had not sustained
the September 26, 1994 accident, he would have been able to
continue working without restriction. This testimony provides
credible evidence to support the commission's finding that
claimant remained on light-duty status. "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." Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991).
5
Marketing (Record No. 1149-96-3)
"In determining whether a claimant has made a reasonable
effort to market his remaining work capacity, we view the
evidence in the light most favorable to . . . the prevailing
party before the commission . . . ." National Linen Serv. v.
McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989). A
claimant still has the burden of proving his entitlement to
benefits, and to do so he must prove that he made a reasonable
effort to procure suitable work but was unable to market his
remaining work capacity. Great Atl. & Pac. Tea Co. v. Bateman, 4
Va. App. 459, 464, 359 S.E.2d 98, 100 (1987). Unless we can say
as a matter of law that claimant's evidence was sufficient to
sustain his burden of proof, the commission's finding is binding
and conclusive upon us. Tomko v. Michael's Plastering Co., 210
Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Employer provided claimant with light-duty work from October
15, 1994 through March 17, 1995. When this light work ended,
claimant, a high school graduate with two years of community
college, did not begin looking for work for approximately one
month. On April 12, 1995, he began working part-time at a
convenience store, earning $139.29 per week. Claimant's
pre-injury average weekly wage was $518.27. Claimant refused the
store's offer of full-time employment because his attorney
advised him to reject it and because he attended school three
hours per day. Claimant made no other effort to find work.
6
Viewing this record in the light most favorable to employer,
and in light of the factors enumerated in McGuinn, we cannot find
as a matter of law that claimant's evidence proved he made a good
faith effort to market his residual work capacity after March 17,
1995. Accordingly, the commission did not err in refusing to
award claimant compensation after March 17, 1995.
For the reasons stated, we affirm the commission's decision.
Affirmed.
7
New River Castings v. Kevin C. Hurst
Combined Opinion