Bridgestone, etc. v. Michael J. Doernberg ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
BRIDGESTONE FIRESTONE, INC.
AND
INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA
MEMORANDUM OPINION *
v. Record No. 2065-95-4 PER CURIAM
FEBRUARY 27, 1996
MICHAEL J. DOERNBERG
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Ralph L. Whitt, Jr.; Jennifer G. Marwitz;
Sands, Anderson, Marks & Miller, on brief),
for appellants.
(Wesley G. Marshall, on brief), for appellee.
Bridgestone Firestone, Inc. and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Michael J.
Doernberg (claimant) sustained an injury by accident arising out
of and in the course of his employment on April 6, 1994, rather
than a change in condition related to a July 1, 1989 injury.
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.
Claimant, a store manager for employer, testified that on
April 6, 1994, his job duties required that he supervise
personnel, perform car repairs, and close tire sales. On that
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
date, he leaned into a customer's car trunk in order to remove a
tire. As he moved the tire, he felt a sharp pain in his left
lower back and buttocks. He reported this accident to his
employer's workers' compensation/safety manager and sought
medical treatment from Dr. Samuel D. Jessee, an orthopedic
surgeon.
Claimant admitted that he had suffered a previous back
injury in 1989. However, in April 1994, claimant was not under
any active medical care for his back nor was he under any
physical restrictions. Claimant testified that he felt fine
prior to the April 6, 1994 injury, and he played golf and
basketball on occasion. During the several months before
April 6, 1994, claimant did not miss any time from work related
to back pain. Between 1993 and April 6, 1994, claimant performed
his job duties without any problems and did not suffer from daily
or even weekly pain. After April 6, 1994, claimant's back pain
prevented him from lifting and performing physical labor at work.
Following the 1989 back injury, Dr. Jessee diagnosed
claimant as suffering from an L4-L5 herniated disc. Dr. Jessee
prescribed epidural steroid injections, the last one administered
on June 1, 1992. No evidence showed that claimant underwent any
medical treatment for his back between June 2, 1992 and April 7,
1994. On April 8, 1994, Dr. Jessee noted that claimant had done
well and had not had back symptoms until the April 6, 1994
accident. Dr. Jessee diagnosed a persistent herniated disc and
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prescribed lumbar steroid injections. A September 14, 1994 MRI
revealed a new objective finding, consisting of a disc herniation
at L5-S1 and a herniated disc at L4-L5. Thereafter, Dr. K. Singh
Sahni, a neurosurgeon, recommended that claimant undergo surgery.
Based upon this record, the commission held that claimant
proved he sustained a new injury by accident arising out of and
in the course of his employment on April 6, 1994. In so ruling,
the commission found as follows:
[Claimant] testified that he felt back pain
while moving a tire at work on April 6, 1994.
This is consistent with both the history
elicited by his treating physician and the
recorded statement given to the carrier. The
MRI performed in September 1994 revealed the
presence of a herniated disc at L5-S1 which
was not appreciated in the earlier studies.
While the claimant testified that he had
experienced intermittent back pain since his
original injury in 1989, this pain was not
severe enough to require medical attention.
However, subsequent to his injury on April 6,
1994, he had required repeated epidural
steroid injections in order to alleviate his
pain. Further, Dr. Sahni recommended
surgical intervention, which was not an
option considered prior to April 6, 1994.
"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).
[A]ggravation of an old injury or a
preexisting condition is not, per se,
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tantamount to a "new injury." To be a "new
injury" the incident giving rise to the
aggravation must, in itself, satisfy each of
the requirements for an "injury by accident
arising out of . . . the employment."
First Federal Savings & Loan Ass'n v. Gryder, 9 Va. App. 60, 63,
383 S.E.2d 755, 757-58 (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).
Claimant's testimony, coupled with the medical records of
Drs. Jessee and Sahni, constitute credible evidence to support
the commission's finding that claimant experienced an
identifiable incident on April 6, 1994 resulting in a sudden
mechanical or structural change in his lower back.
Accordingly, we affirm the commission's decision.
Affirmed.
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