James H. Meadows v. Bear Ridge Mining, Inc. ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Senior Judge Cole
JAMES H. MEADOWS
MEMORANDUM OPINION*
v. Record No. 1306-00-3 PER CURIAM
OCTOBER 10, 2000
BEAR RIDGE MINING, INC.,
LIBERTY MUTUAL INSURANCE COMPANY, AND
AMERICAN INTERNATIONAL SOUTH INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Gerald F. Sharp, on brief), for appellant.
(John C. Johnson; Catherine I. Henritze;
Frith, Anderson & Peake, P.C., on brief), for
appellees Bear Ridge Mining, Inc. and
Liberty Mutual Insurance Company.
(S. Vernon Priddy, III; Sands, Anderson,
Marks & Miller, on brief), for appellees
Bear Ridge Mining, Inc. and American
International South Insurance Company.
James H. Meadows (claimant) contends that the Workers'
Compensation Commission erred in finding that he failed to prove
that he sustained an injury by accident arising out of and in
the course of his employment on September 15, 1998, or in the
alternative, that he sustained a change-in-condition on
September 15, 1998 causally related to his compensable March 26,
1997 injury by accident. Upon reviewing the record and the
briefs of the parties, we conclude that this appeal is without
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
merit. Accordingly, we summarily affirm the commission's
decision. See Rule 5A:27.
Injury by Accident
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "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). Unless we can say as a matter of law that
claimant's evidence sustained his burden of proof, the
commission's findings are binding and conclusive upon us. See
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
The commission ruled that claimant's evidence failed to
prove that he sustained an obvious sudden mechanical or
structural change in his body as a result of the September 15,
1998 incident. In so ruling, the commission found as follows:
The only evidence tending to establish
that the claimant suffered a sudden
mechanical or structural change on September
15, 1998, is the claimant's testimony that
he was "jerked" by the rub rail when it came
of [sic] its hinges, that it "hurt" him in
his back and that he felt different
afterwards, with increasing pain.
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The medical evidence does not support
the claimant's testimony, however. As to
direct evidence of a sudden structural or
mechanical change we have only Dr. [Alain]
Desy's opinion. Dr. Desy clearly and
unequivocally opines that the claimant did
not suffer a structural or mechanical change
as a result of the incident on September 15,
1998. Dr. Desy based his opinion largely
upon the fact that imaging of the claimant's
lumbar spine has remained unchanged since
his 1994 accident, and the lack of objective
evidence to support the claimant's ongoing
claim of disability.
Dr. [Emile] Khuri did not directly
address the question of structural or
mechanical change, and seems to attribute
the claimant's medical disability to an
aggravation of undetermined preexisting back
problems. Dr. Khuri opined that the
claimant's current disability was related to
the September 15, 1998, injury, as it "most
probably" aggravated his "back situation."
Dr. Khuri noted that claimant's unspecified
previous back pain and injury, and opined
that lifting the rub rail "could have"
aggravated his back problem.
The medical evidence, taken as a whole,
does not suggest that the claimant suffered
a sudden structural or mechanical change
either. The claimant has undergone
extensive radiographic and MRI imaging since
at least 1994, when he was treated for
another low back injury. Since that time,
each successive set of images has been
compared to the previous set in an attempt
to determine what is causing the claimant's
condition. Without dispute, each of the
claimant's physicians has noted that the
claimant's lumbar spine has shown no change
during the intervening period.
In light of the opinions of Drs. Desy and Khuri, coupled
with the lack of any objective medical evidence establishing a
mechanical or structural change in claimant's back after the
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September 15, 1998 incident, the commission, as fact finder, was
entitled to weigh the medical evidence against claimant's
testimony and to conclude that claimant failed to prove he
sustained a new injury by accident on September 15, 1998. Based
upon this record, we cannot find as a matter of law that
claimant's evidence sustained his burden of proof.
Change-in-Condition
"General principles of workman's compensation law provide
that '[i]n an application for review of any award on the ground of
change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459,
464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight Carriers,
Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572
(1986)). Unless we can say as a matter of law that claimant's
evidence sustained his burden of proof, the commission's findings
are binding and conclusive upon us. See Tomko, 210 Va. at 699,
173 S.E.2d at 835.
The commission ruled that although claimant had proven a
change in his capacity to work after the September 15, 1998
incident, he failed to prove that such change resulted from a
condition causally related to his March 26, 1997 compensable
back injury. In so ruling, the commission found as follows:
[Claimant] has suffered low back pain since
1987, and has required treatment for such
problems in 1987, 1989, 1991, and 1994,
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prior to his March 26, 1997, accident.
Since March 26, 1997, but prior to the
alleged aggravation on September 15, 1998,
the claimant has had at least one other low
back injury that required treatment and the
imposition of medical restrictions. The
claimant himself testified that he has had
ongoing problems with his back, and that
working in the mines gives you back trouble
"most of the time."
. . . Dr. Khuri opined that the
claimant's injury was related to the
September 15, 1998, accident. However, he
qualified his opinion by stating that the
September, 1998, injury "most probably"
aggravated "his back situation" from
"previous back injuries." He also stated
that lifting the rub rail "could have"
aggravated the claimant's back problem.
Despite being given the opportunity to do
so, Dr. Khuri did not directly attribute the
claimant's disability to the March 26, 1997,
accident. Considering the claimant's
extensive history of prior back problems,
Dr. Khuri's vague opinion that the September
15, 1998, injury "could have" aggravated his
"back situation" or "previous back
injuries," clearly encompasses any previous
low back injuries, both compensable and
non-compensable, from 1987 to 1998.
Though Dr. Desy opined that the
claimant's low back problems were "more
probably" related to the March 26, 1997,
injury, he qualified his opinion by stating
that the claimant's problems could have been
related to his accident in 1994, or an
aggravation of a pre-existing condition of
unknown origin. He believed that the
claimant's problems stemmed from "repeated
injury" at work, and stated that it was
"impossible to determine" which event was
the initial injury.
The commission's findings are amply supported by the
record. In light of the lack of any persuasive medical opinion
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directly linking claimant's change in his capacity to work after
September 15, 1998 to his compensable March 26, 1997 injury by
accident, we cannot find as a matter of law that claimant's
evidence sustained his burden of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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