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McKenney v. Continental Baking Co.11/22/1994
MEMORANDUM OPINION BY JUDGE SAM W. COLEMAN III
On appeal, Michael McKenney contends the Workers' Compensation Commission erred in finding that the evidence failed to prove that his back injury arose out of his employment. Because the evidence does not prove as a matter of law that a specific identifiable work-related event caused McKenney's injury, we cannot say that the commission erred in holding that the claimant failed to prove causation.
The claimant presented evidence which indicated that he injured his back while loading a delivery truck at work. According to the claimant, the injury occurred in the morning while he was turning around with a tray of doughnuts in his hand. While in that position, he coughed and suddenly "had a real sharp pain" in his back. The claimant worked the entire day, made all his deliveries, went home, and slept. The next day he awoke and had a "real difficult time walking." He reported to his supervisor that he had injured his back, but made no mention that the injury was from an accident related to his work. On that same day, he went to the emergency room. The emergency room physician reported that the claimant had "bad back pain" which had begun eight days prior to his on-the-job injury. The physician also reported that after this initial pain the claimant "returned to work--got better. Yesterday coughed and got worse." No mention was made in this medical report that attributed the injury to McKenney's coughing, lifting, or twisting. Later that week, the claimant's attending physician diagnosed his condition as a herniated disk.
The employer presented the testimony of two witnesses who saw the claimant on the day of the injury. Both witnesses testified that the claimant did not exhibit any signs of injury or pain on the day he claims to have been injured. The claimant presented a letter from his treating physician which stated:
As the above-named individual was lifting a tray at work and twisted, he had a coughing attack, and had an onset of sharp pain in his back.
As a result of this injury he was totally disabled from work from 12/6/92 through February 7, 1993.
His treatment was related to the accident.
The commission held that claimant's coughing had caused his injury and that the evidence failed to prove that the coughing was the result of a risk of employment. Thus, the commission held, in effect, that the claimant had failed to prove that the lifting and turning associated with claimant's work caused his injury.
To be entitled to an award of compensation benefits, a claimant must be injured by an accident arising "out of" and "in the course" of employment. Code § 65.2-101; see County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). An accident arises "out of" employment when "there is a causal connection between the claimant's injury and the conditions under which the employer requires the work to be performed." United Parcel Service v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 892 (1985)(emphasis added).
The determination of causation is a "factual determination frequently turning upon the weight and credibility accorded to the evidence." Stancill v. Ford Motor Co., 15 Va. App. 54, 57, 421 S.E.2d 872, 874 (1992). See also Code § 65.2-706(A); Ross Laboratories v. Barbour, 13 Va. App. 373, 377-78, 412 S.E.2d 205, 208 (1991). "When there is credible evidence to support it, such a finding of fact is 'conclusive and binding'
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