Opinion
Record No. 1306-93-3
November 30, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Richard M. Thomas; Rider, Thomas, Cleaveland, Ferris Eakin, on brief), for appellant.
(William C. Walker; Taylor Walker, on brief), for appellees.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
Rodney L. Wilhelm, Sr. (claimant) contends that the commission erred in finding that he (1) failed to prove an injury by accident arising out of and in the course of his employment on August 21, 1991; (2) did not meet the notice requirements of Code § 65.2-600(C); and (3) failed to prove continuing disability.
Claimant was employed by Rockydale Quarries Corporation (employer) as a mill helper. His job duties entailed shoveling waste gravel and rock from under conveyor belts. On August 21, 1991, claimant had been shoveling for approximately fifteen minutes when he experienced severe chest pain, shortness of breath and numbness in his arms. Prior to experiencing these symptoms, claimant had shoveled gravel earlier in the day. He normally spent about four hours per day shoveling. Claimant knew he was having a heart attack and immediately advised his mill operator of his symptoms. Claimant was taken to Roanoke Memorial Hospital, where he was treated by Dr. Joseph Austin, a cardiologist. Dr. Austin diagnosed an acute myocardial infarction.
Prior to August 21, 1991, claimant had a long history of chest pains, high cholesterol, high blood pressure, and tobacco use. On August 20, 1991, the day prior to the incident, claimant had a brief episode of chest pain which was relieved by medication. In a January 13, 1992 letter to claimant's attorney, Dr. Austin stated that claimant's history predisposed him to having cardiac problems. However, Dr. Austin opined that claimant's work played some role in his heart attack and, was, at least, an aggravating factor. Dr. Austin based this opinion on the evidence that the blockage of claimant's arteries was not severe and his heart attack occurred when he was engaging in vigorous activity at work.
"In order to carry his burden of proving an 'injury by accident,' a claimant must prove that the cause of his injury was an identifiable incident or sudden precipitating event and that it resulted in an obvious sudden mechanical change in the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989) (emphasis in original, citations omitted). In Virginia, "the requirement of showing 'injury by accident' . . . applies equally to claims resulting from heart attacks." Woody v. Mark Winkler, 1 Va. App. 147, 151, 336 S.E.2d 518, 521 (1985). Unless we can say as a matter of law that claimant's evidence was sufficient to meet the 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 full commission, in reversing the deputy commissioner, rejected the claim, finding that claimant's injury did not meet the requirement of an "identifiable incident" or "sudden precipitating event" as set forth in Morris, but instead resulted from "repetitive trauma" or "cumulative events." Credible evidence supports this finding; thus it will not be disturbed on appeal. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
Claimant's testimony relates his heart attack symptoms to a fifteen minute period of shoveling. He had also been shoveling earlier in the day. Dr. Austin based his opinion regarding causation on a generalized reference to vigorous activity at work. Such an opinion does not compel the conclusion that claimant's heart attack was caused by any specific, identifiable physical exertion or a sudden precipitating event. His heart attack could just as likely have been the result of several hours of physical exertion over the course of the day, possibly precipitated by his high blood pressure, high cholesterol, tobacco use and/or angina. Thus, we cannot say as a matter of law that the commission erred in finding that claimant failed to prove an injury by accident arising out of and in the course of his employment.
For the reasons stated, we affirm the commission's decision. Since our ruling on the "injury by accident" issue disposes of this appeal, we do not address the remaining issues presented.
Affirmed.