Coeburn-Norton-Wise, etc v. Daniel Jay Sexton ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Overton and Senior Judge Hodges
Argued at Salem, Virginia
COEBURN-NORTON-WISE REGIONAL
WASTEWATER TREATMENT AUTHORITY AND
VML INSURANCE PROGRAMS MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
v. Record No. 2964-95-3 JULY 16, 1996
DANIEL JAY SEXTON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Frank Friedman (Paul C. Kuhnel; Woods, Rogers &
Hazlegrove, P.L.C., on brief), for appellants.
No brief or argument for appellee.
Coeburn-Norton-Wise Regional Wastewater Treatment Authority
(employer) appeals the commission's decision awarding workers'
compensation benefits to Daniel Jay Sexton (claimant). Employer
argues that the commission erred in finding credible evidence
that claimant suffered an injury by accident. We agree and
reverse the commission.
On April 23, 1995, claimant injured his right shoulder while
working for employer. Claimant testified that he turned a valve
and "it felt like something just ripped in [his] shoulder."
Prior to this accident, claimant had other problems with his
shoulder, including a similar injury in 1992. However, claimant
did not suffer "ongoing discomfort" in his shoulder until the
April 23, 1995 accident.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The morning after the accident, claimant sought medical
treatment from Dr. John Ellis, who referred him to Dr. Michael
Lyons, an orthopedist. In an April 24, 1995 report, Dr. Ellis
stated that claimant "[h]urt right shoulder opening and closing
valves. Says some problems prior, specific precipitating event
unclear." In a second report dated April 24, 1995, Dr. Ellis
noted that claimant's pain had "been 'coming on' for long time
[and was] worse recently." Dr. Lyons examined claimant on April
25, 1995, and reported as follows:
[The patient complains] of having pain in his
right shoulder going into his neck for the
past year. The patient states that he has
had several episodes of a "pulled muscle in
his shoulder and neck." The patient states
that he usually just waits and the pain goes
away. The patient states that this past week
though while opening and closing large valves
he began to have more pain.
(Emphasis added). Dr. Lyons diagnosed claimant's condition as
acromion calcification" and restricted claimant's use of his
right arm pending a MRI. In a May 15, 1995 letter, Dr. Lyons
also noted as follows:
In his original medical information sheet
dated 4-28-95 the patient directly relates
his shoulder hurting to working valves at the
plant. It is noted however, that the patient
has had prior problems with the shoulder and
it would be impossible to differentiate the
two. . . . The primary cause of the point of
his current symptoms appears to be an overuse
syndrome from turning the valves that he has
to do at work.
(Emphasis added). Claimant returned to work May 23, 1995, and
sought benefits from April 24, 1995 to May 22, 1995. The
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commission awarded benefits to claimant and stated as follows:
It is clear from the claimant's
testimony that he has experienced right
shoulder pain from time to time while
performing his work duties. However, we find
upon Review that his testimony as to the
manner in which he was injured on April 23,
1995, and the sudden onset of right shoulder
pain while turning a specific valve, is more
persuasive than what appears to be a casual
reference to valves in the various medical
reports and in the questions posed by counsel
for the employer.
We recognize that, on appeal, "we review the evidence in the
light most favorable to the prevailing party." R.G. Moore Bldg.
Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). "Factual findings of the . . . [c]ommission will be
upheld on appeal if supported by credible evidence." James v.
Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487,
488 (1989). "In order to carry [the] burden of proving an
'injury by accident,' a claimant must prove that the cause of
[the] 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).
In the instant case, no credible evidence supports the
commission's finding that claimant suffered an injury by accident
on April 23, 1995. Rather, claimant's history and the medical
evidence establish a gradually occurring problem or "overuse
syndrome" that simply manifested itself on the date that claimant
felt the pain in his shoulder. Under these circumstances,
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claimant's description, standing alone, is insufficient to meet
his burden of proving an identifiable incident resulting in "an
obvious sudden mechanical or structural change in the body."
Morris, 238 Va. at 589, 385 S.E.2d at 865. 1
Accordingly, the decision of the commission is reversed.
Reversed.
1
In reaching this holding, we do not hold that credible
medical evidence is required to prove an injury by accident. In
some cases, the claimant's testimony alone may be sufficient to
establish an identifiable injury by accident.
4