Curtis S. Smith v. City of Emporia ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
CURTIS S. SMITH
v. Record No. 0864-97-2 MEMORANDUM OPINION *
PER CURIAM
CITY OF EMPORIA AND AUGUST 22, 1997
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Stephen D. Bloom; Townsend and Bloom Law
Offices, on briefs), for appellant.
(P. Dawn Bishop; Sands, Anderson, Marks &
Miller, on brief), for appellees.
Curtis S. Smith appeals from a decision of the Workers'
Compensation Commission denying his application for an award of
compensation benefits. Smith contends that the commission erred
in finding that he failed to prove (1) that he sustained an
injury by accident arising out of and in the course of his
employment on December 21, 1994 and/or January 3, 1995; and (2)
that his injuries and disability were causally related to a
compensable injury by accident. Finding no error, we affirm the
commission's decision.
"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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 Smith'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). Furthermore, 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).
At the hearing before the deputy commissioner, Smith
testified that he experienced pain in his right arm and tingling
in his fingers when he picked up a piece of concrete at work on
December 21, 1994. Smith continued to work for the employer
after this incident. Smith testified that on January 3, 1995,
while working on a trash truck, he picked up a trash can and felt
a sharp pain down the right side of his hand.
However, Smith gave a recorded statement on May 9, 1995 to
Cat Cunningham, a claims adjuster. In that statement, Smith did
not mention a December 21, 1994 incident nor did he mention
lifting concrete as a cause of his injury. Rather, Smith stated
that in January 1995, while lifting and dumping trash cans at
work over the course of the entire day, his wrist began to hurt.
Smith could not pinpoint a specific incident that caused his
pain.
The medical records reveal that Smith sought medical
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treatment from Dr. John Holland, Jr. on January 3, 1995. Smith
gave Dr. Holland a history of "exacerbation of pain of the right
arm upon lifting garbage cans at work." 1 On April 4, 1995, Smith
saw Dr. Douglas A. Wayne for an electrodiagnostic consultation.
Dr. Wayne noted that Smith reported the puncture wound to his
hand in July 1994. Dr. Wayne noted that Smith "has had some
chronic problems with his hands ever since the . . . [July 1994]
injury." Smith also treated with Dr. William Bowers, a hand
surgeon. On April 26, 1995, Dr. Bowers noted that Smith may have
sustained a new injury in January 1995 when "he was lifting some
concrete . . . and throwing around garbage cans." Dr. Bowers
diagnosed a triangular fibrocartilage tear ("TFC tear") in
Smith's right wrist, for which Smith eventually underwent
surgery.
The deputy commissioner found that Smith did not "suffer[]
an injury by accident on January 3, 1995 while lifting a
particular trash can. Instead, . . . [Smith] experienced pain in
his wrist as a result of the course of work in which he was
engaged on January 3, 1995." On review, the commission found
that "the evidence presented fails to establish that [Smith]
suffered an injury by accident on January 3, 1995, arising out of
an identifiable incident or sudden precipitating event."
1
It was undisputed that Smith suffered a prior injury to his
right hand in July 1994 when a screwdriver punctured his hand.
However, both Drs. Holland and Bowers opined that Smith's
condition was unrelated to the puncture wound.
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Based upon Smith's failure to report a history of a specific
identifiable incident or sudden precipitating event occurring on
either December 21, 1994 or January 3, 1995 in his recorded
statement or to his physicians, the commission was entitled to
reject his testimony to the contrary and to conclude that his
injury was caused by lifting and twisting trash cans over the
course of an entire day in January 1995. An injury that results
from cumulative trauma caused by repetitive motion is not
compensable, as a matter of law, under the Workers' Compensation
Act. See The Steinrich Group v. Jemmott, 251 Va. 186, 199, 467
S.E.2d 795, 802 (1996). Thus, based upon this record, we cannot
say as a matter of law that Smith's evidence sustained his burden
of proving a compensable injury by accident. Accordingly, we
affirm the commission's decision.
Because our ruling on the injury by accident issue disposes
of this appeal, we need not address the causation issue.
Affirmed.
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