COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
LUCILLE ST. CLAIR
MEMORANDUM OPINION *
v. Record No. 2983-95-1 PER CURIAM
JUNE 25, 1996
BROWNING-FERRIS INDUSTRIES, INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William E. Baggs, on briefs), for appellant.
(Clair C. Carr; Kalbaugh, Pfund &
Messersmith, on brief), for appellee.
Lucille St. Clair ("claimant") contends that the Workers'
Compensation 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 April 22, 1994. Specifically,
claimant argues that the commission erred in finding that she
failed to prove she sustained a sudden mechanical change in her
body as a result of the work-related incident. 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 [her] burden of proving an 'injury by accident' a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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).
The commission found that claimant, who suffered from pre-
existing cervical disc disease, proved she sustained an increase
in her symptoms after the April 22, 1994 work-related incident.
However, the commission held that, due to the "absence of a
sudden mechanical change," claimant failed to carry her burden of
proof. In so ruling, the commission found as follows:
[T]he record establishes that the claimant
had a preexisting disc herniation at C4-C5.
There is no evidence before us to indicate
that this herniation increased or impinged on
a spinal nerve root as a result of the
incident of April 22, 1994. The medical
record also reflects that the claimant was
diagnosed in July 1994 with a ruptured disc
at C5-C6. There is no documentation of a
disc herniation at this level prior to April
22, 1994. However, Dr. [Isabelle L.]
Richmond, the only physician who directly
addressed the issue of causation as to this
disc herniation, opined that "her alleged
injury [on April 22, 1994] . . . in and of
itself would not be expected to produce
significant multi-level disk herniations de
novo. . . ." Dr. [James D.] Dillon opined
that: "I cannot prove or disprove that her
work-related incident caused the rupture of
the discs in her neck. . . ." He did
indicate that the incident of April 22, 1994,
increased the claimant's symptoms.
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The medical records and opinions of Drs. Richmond and Dillon
support the commission's decision. Accordingly, we cannot find
as a matter of law that claimant met her burden of proving a
sudden mechanical change in her body occurred as a result of the
April 22, 1994 work-related incident. Therefore, we affirm the
commission's decision finding that claimant failed to prove she
sustained an injury by accident arising out of and in the course
of her employment on April 22, 1994.
Affirmed.
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