Sterling R Brickey, Jr v. Humphrey's Inc

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
STERLING R. BRICKEY, JR.
MEMORANDUM OPINION*
v. Record No. 1553-02-3 PER CURIAM
JANUARY 28, 2003
HUMPHREY'S, INC. AND
TRANSCONTINENTAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(D. Allison Mullins; Lee & Phipps, P.C., on
brief), for appellant.
(Ramesh Murthy; J. Jasen Eige; Penn, Stuart &
Eskridge, on brief), for appellees.
Sterling R. Brickey, Jr. (claimant) contends the Workers'
Compensation 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 January 9, 2001. Upon reviewing the
record and the parties' briefs, 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 [the] burden of proving an 'injury by accident,'
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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 failed to prove he
sustained a mechanical or structural change in his body and,
therefore, he failed to establish a new compensable injury by
accident occurring on January 9, 2001. In so ruling, the
commission found as follows:
[Claimant] presented no medical evidence
that the industrial incident on January 9,
2001, caused a bodily change. Instead,
Dr. [Neal A.] Jewell has related claimant's
low back condition to his previous 1997
injury. For example, he reported that the
new MRI scan revealed degenerative changes
similar to the ones already noted. On
February 12, 2001, Dr. Jewell directly
connected the claimant's ongoing symptoms to
the injury of May 1997. There is no medical
evidence to the contrary.
Dr. Jewell concluded that the claimant
suffered an aggravation of his underlying
degenerative disc disease. It is true that
an aggravation of an old injury due to a new
injury may be compensable. However, the new
incident must still meet the requirements of
an injury by accident. Without proving a
mechanical or structural bodily change, the
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claimant has failed to show an injury by
accident.
We agree with claimant's argument that
the employer must accept him with his
predisposing physical weaknesses.
Nonetheless, he still has the burden of
proving that the employment activity caused
a sudden, obvious injury. As stated, there
is no medical evidence that the January 9,
2001, incident caused a mechanical change in
the claimant's back.
In light of Dr. Jewell's opinions and the lack of any
compellingly countervailing medical evidence establishing that
claimant sustained a structural or mechanical change to his low
back as a result of the January 9, 2001 incident, we cannot find
as a matter of law that claimant's evidence met his burden of
proving he incurred a new compensable injury by accident on that
date. "[A]ggravation of an old injury or pre-existing condition
is not, per se, 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 Fed.
Savings and Loan v. Gryder, 9 Va. App. 60, 63, 383 S.E.2d 755,
757-58 (1989).
For these reasons, we affirm the commission's decision.
Affirmed.
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