R & R Const. Corp v. Hill

• Decision Date: 12 August 1997
• Docket Number: No. 3135-96-1,3135-96-1
• Citation: 25 Va.App. 376,488 S.E.2d 663
• Court: Virginia Court of Appeals
• Parties: R & R CONSTRUCTION CORPORATION and Nationwide Mutual Insurance Company v. Jon Stuart HILL. Record

Page 663

488 S.E.2d 663

25 Va.App. 376

R & R CONSTRUCTION CORPORATION and Nationwide Mutual Insurance Company v. Jon Stuart HILL.

Record No. 3135-96-1.

Court of Appeals of Virginia,

Norfolk.

Aug. 12, 1997.

Fay F. Spence, Norfolk (Gene A. Woolard; Spence & Whitlow, on brief), for appellants.

Terrence K. Martin, Newport News (Overman, Cowardin & Martin, P.L.C., on brief), for appellee.

Present: COLEMAN and WILLIS, JJ., and HODGES, Senior Judge.

COLEMAN, Judge.

R & R Construction Corporation and its insurer (employer) appeal the decision of the Workers' Compensation Commission awarding Jon Stuart Hill (claimant) temporary total disability benefits as a result of a back injury that he sustained when he moved several five-gallon paint buckets. Finding no error, we affirm the commission's decision.

Viewed in the light most favorable to the claimant, the prevailing party, the evidence proved that claimant was moving five to seven five-gallon paint buckets from one location to another within a storage shed when he "started feeling just a sore place" in his lower back. As soon as he felt this "soreness," he stopped moving the buckets and sat down. Claimant testified that "the longer I sat there the more the pain started really getting bad then. It was like my back was almost getting ready to lock up on me."

After claimant was injured, he reported his injury to his supervisor, who had come to the storage shed. Claimant attempted to continue working but was unable to do so. The next morning, he again attempted to work but could not stay because he was in pain. The following day, claimant went to the doctor and was later diagnosed with a right paracentral disc herniation at L2-L3, a mild disc bulge at L3-L4, and a central subligamentous disc herniation at L4-L5.

"To qualify for workers' compensation benefits, an employee's injuries must result from an event 'arising out of' and 'in the course of' the employment." Pinkerton's, Inc. v. Helmes, 242 Va. 378, 380, 410 S.E.2d 646, 647 (1991). "A finding by the commission that an injury arose out of and in the course of employment is a mixed finding of law and fact and is properly reviewable on appeal." Dublin Garment Co. v. Jones, 2 Va.App. 165, 167, 342 S.E.2d 638, 638 (1986).

"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 or structural change in the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989) (emphasis in original). A disc herniation is a mechanical or structural change in the body. The employer contends, however, that claimant's injury was gradually incurred over the course of moving several paint buckets and was not the result of a "sudden precipitating event." Although a claimant must prove a "sudden precipitating event" that caused the injury, "[t]o constitute injury by accident it is not necessary that there should be an extraordinary occurrence in or about the work engaged in." Kemp v. Tidewater Kiewit, 7 Va.App. 360, 363, 373 S.E.2d 725, 726 (1988) (quoting Derby v. Swift & Co., 188 Va. 336, 344, 49 S.E.2d 417, 421 (1948)). "Sudden" as used in this context means an "immediate" event that causes or precipitates an injury; "sudden" is not used here to connote an unexpected consequence. See Webster's Third New International Dictionary 2284 (1981). T...