COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
ERIC PAUL PIKE
v. Record No. 2614-95-1 MEMORANDUM OPINION *
PER CURIAM
SCOTT A. HUDSON MAY 14, 1996
AND
HARTFORD UNDERWRITERS
INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William M. McKee, on brief), for appellant.
(Susan B. Potter; Vandeventer, Black,
Meredith & Martin, on brief), for appellees.
Eric P. Pike (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 December 1, 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 the cause of his injury was an identifiable
incident or sudden precipitating event and that it resulted in an
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
obvious and 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 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).
The commission found that neither claimant's testimony nor
the medical record established that he sustained a compensable
injury by accident on December 1, 1994. As the basis for its
decision, the commission stated the following:
[Claimant's] testimony that he sustained
injury on December 1, 1994, when Matina
dropped his end of a sheetrock panel, is not
supported by the weight of the evidence.
Matina testified that he could not recall the
incident. While the claimant initially
testified that he immediately informed Matina
of his injury, he later changed his
testimony. Matina stated that [claimant]
never informed him of an injury on December
1, 1994, and exhibited no indication of
injury on that date. On December 5, 1994,
Dr. Byrd reported that the claimant was
experiencing neck and right arm pain for one
month. There was no mention of an injury of
December 1, 1994, until six weeks later
1
during Dr. Mein's initial evaluation.
As fact finder, the commission was entitled to give more
weight to the testimony of Matina and Hudson than to claimant's
1
The commission also noted that Scott Hudson, claimant's
supervisor, who worked in the same house on December 1, 1994 as
claimant and Matina, testified that claimant did not report an
injury to him on that date. Hudson first heard of the alleged
injury on December 7, 1994, when claimant called him to obtain
insurance information. Even then, claimant did not give Hudson
any information concerning the alleged injury.
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testimony. Based upon the testimony of Matina and Hudson, the
commission could conclude that claimant did not sustain a
compensable injury by accident on December 1, 1994. Furthermore,
the commission could infer from the history contained in Dr.
Byrd's medical record that claimant had suffered from neck and
arm pain before the alleged accident and, consequently, the
injury predated the alleged accident. "Where reasonable
inferences may be drawn from the evidence in support of the
commission's factual findings, they will not be disturbed by this
Court on appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App.
398, 404, 374 S.E.2d 695, 698 (1988).
For these reasons, we affirm the commission's decision.
Affirmed.
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