Mario L. Calvano, Executor, et al. v Wal-Mart, etc

COURT OF APPEALS OF VIRGINIA
Present: 	Judge Bray, Senior Judges Duff and Overton
Argued at Alexandria, Virginia
MARIO L. CALVANO, EXECUTOR OF
THE ESTATE OF MARIANNE STOY-CALVANO
MEMORANDUM OPINION* BY
v. 	Record No. 1597-98-4 	JUDGE CHARLES H. DUFF
APRIL 20, 1999
WAL-MART STORES, INC. AND
INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
V.R. Shackelford, III (Shackelford,
Honenberger, Thomas, Willis & Gregg, on
brief), for appellant.
Monica L. Taylor (Melissa Amos Young; Gentry,
Locke, Rakes & Moore, on brief), for
appellees.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Mario L. Calvano, Executor of the Estate of Marianne
Stoy-Calvano ("claimant") appeals a decision of the Workers'
Compensation Commission ("commission") denying her claim for
benefits. 	Claimant contends that the commission erred in
finding that she failed to prove that she sustained an injury by
accident arising out of and in the course of her employment on
May 25, 1997. 	Finding no error, we affirm.

On appeal, we view the evidence in the light most favorable
to the prevailing party below. 	See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 	"In
order to carry [the] burden of proving an 'injury by accident,'
a claimant must prove that the cause of [the] 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). 	Unless we can say as a matter of law that
claimant's evidence sustained her burden of proof, the
commission's findings are binding and conclusive upon us. 	See
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
The commission ruled that claimant did not prove that she
was injured as a result of a specific incident at work on May
25, 1997. 	As the basis for its decision, the commission made
the following findings:
As in Morris, the claimant experienced
the sudden onset of pain after about two
hours of continuous rapid-paced work as a
cashier. 	Claimant could not recall what
identifiable incident or action on her part
occurred at the time she experienced sudden
pain and there is nothing in the record to
prove "an identifiable incident or sudden
precipitating event" as the cause of
claimant's injury, a rotator cuff tear.
Although claimant's doctor stated that
claimant's "history is consistent with a
rotator cuff tear caused by her accident at
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work," there is nothing in the medical
record to indicate the claimant gave a more
particular description of the events of
May 25, 1997 to the doctor than she did at
[sic] hearing. 	The evidence does not prove
the claimant suffered "an accident" as that
term has been defined in the Act . . . .
In light of claimant's testimony, claimant's recorded
statement, and the medical records, the commission, as fact
finder, could reasonably conclude that claimant was unable to
identify the specific movement or work activity, if any, that
she was performing when she felt the sudden pain on May 25,
1997. 	Accordingly, we cannot say as a matter of law that
claimant proved that she sustained an injury caused by an
accident arising out of and in the course of her employment on
May 25, 1997.
For these reasons, we affirm the commission's decision.
Affirmed.
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