Karen Sue O'Barr v. AUM, Inc., etc. ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
KAREN SUE O'BARR
v. Record No. 1001-95-4 MEMORANDUM OPINION *
PER CURIAM
AUM, INC. D/B/A DUNKIN DONUTS OCTOBER 10, 1995
AND
GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Michael W. Heaviside; Ashcraft & Gerel, on brief),
for appellant.
(Susan L. Herilla; Slenker, Brandt, Jennings &
Johnston, on brief), for appellees.
Karen Sue O'Barr contends that the Workers' Compensation
Commission erred in finding that she failed to prove an injury by
accident arising out of and in the course of her employment.
Upon reviewing the record and the briefs of the parties, we find
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 [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."
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989)
(citations omitted). Unless we can say as a matter of law that
O'Barr's 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).
The commission found that O'Barr did not prove that she
slipped and fell on a wet floor at work on April 10, 1994. As
the basis for its decision, the commission stated the following:
While [O'Barr] testified that she
slipped on a wet floor at work, two employees
who were present testified that they did not
observe, and were not made aware of, this
incident. Fennell testified that, at lunch
on the date of the accident, [O'Barr]
mentioned that she had fallen. However, this
was not communicated to either Trivedi or any
other employee.
The Attending Physician's Report of
April 27, 1994, with the history completed in
[O'Barr's] handwriting, is the only report
from Dr. Bryngelson referring to how the
accident occurred. We note that forms
completed by [O'Barr] on July 6, 1994,
indicate ongoing neck pain of six months
duration and lower back pain for four years.
As fact finder, the commission was entitled to accept the
testimony of Ashwin and Neena Trivedi and Katrina Kelly and to
reject O'Barr's testimony that an accident occurred.
Furthermore, the commission could infer from the medical records
that O'Barr suffered from ongoing neck and low back pain before
the alleged fall and, consequently, the injury predated the
alleged accident. "Where reasonable inferences may be drawn from
the evidence in support of the commission's factual findings,
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they will not be disturbed by this Court on appeal." Hawks v.
Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698
(1988). Credible evidence in the record supports the
commission's decision.
Affirmed.
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