Ora G. Harris v. West Point Pepperell ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
ORA G. HARRIS
v. Record No. 1155-96-3 MEMORANDUM OPINION *
PER CURIAM
WEST POINT PEPPERELL, INC. NOVEMBER 26, 1996
AND
TRAVELERS INDEMNITY COMPANY
OF ILLINOIS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ora G. Harris, pro se, on brief).
(Warren G. Britt; Britt & Gnapp, on brief),
for appellees.
Ora G. Harris contends that the Workers' Compensation
Commission erred in finding that she failed to prove she
sustained (1) an injury by accident arising out of and in the
course of her employment; or (2) a compensable occupational
disease. 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.
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).
So viewed, the evidence established that Harris worked for
West Point Pepperell, Inc., a towel manufacturer. Harris' job
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
required her to work at four machines, repetitively placing seven
to eight pound spools of yarn on a rack and threading the yarn
through a machine.
On May 30, 1995, Harris filed a claim seeking compensation
benefits beginning July 21, 1993. In her application, Harris
alleged she sustained an injury by accident and an occupational
disease related to lifting and repetitive use of her wrist and
back, which caused carpal tunnel syndrome and bulging lumbar
discs. At the hearing, Harris stipulated that she was not
claiming an occupational disease, but was claiming an injury by
accident of unknown date, which resulted in carpal tunnel
syndrome and lumbar disc problems. Harris testified that she
believed her carpal tunnel syndrome and back problems began in
April 1993 as the result of repetitive lifting at work.
Harris acknowledged that she had sustained back injuries in
an August 1, 1992 motor vehicle accident not related to her
employment. Dr. Ronald Haney examined Harris after the accident
and noted that Harris sustained injuries to her forehead, right
forearm, elbow, and both knees. Harris also complained of
thoracic pain, chest pain, right hand numbness, and right hip
pain.
Dr. Haney ultimately diagnosed Harris as suffering from
carpal tunnel syndrome on the right and bulging discs at L4-5 and
L5-S1. He performed carpal tunnel release surgery on her right
wrist. After Harris continued to complain of chest and back
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pain, Dr. Haney diagnosed myofascial syndrome. Although Dr.
Haney referred to the August 1, 1992 motor vehicle accident in
his notes, he never referred to Harris' employment as a cause of
her conditions nor did he ever relate Harris' conditions to any
specific work-related incident.
I. Injury by Accident
"In order to carry [her] burden of proving an 'injury by
accident,' a claimant must prove the cause of [her] injury was an
identifiable incident or sudden precipitating event and that it
resulted in an obvious and 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
Harris' evidence sustained her burden of proof, the commission's
finding is binding and conclusive upon us. Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Neither Harris' testimony nor the medical records
established that Harris' carpal tunnel syndrome or lumbar disc
condition was caused by a specific identifiable work-related
incident. Furthermore, in Stenrich Group v. Jemmott, 251 Va.
186, 199, 467 S.E.2d 795, 802 (1996), the Supreme Court held that
"job-related impairments resulting from cumulative trauma caused
by repetitive motion, however labeled or however defined, are, as
a matter of law, not compensable under the present provisions of
the Act." Accordingly, we cannot say as a matter of law that
Harris proved she sustained an injury by accident arising out of
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and in the course of her employment.
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II. Occupational Disease
Any theory of recovery that is not raised before the
commission will not be considered for the first time on appeal.
Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 192, 355
S.E.2d 347, 349 (1987); Rule 5A:18. Harris did not pursue an
occupational disease claim before the commission. Therefore, we
will not consider this claim on appeal.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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