R & R Construction Corp, et al. v Jon Stuart Hill

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia
R & R CONSTRUCTION CORPORATION and
NATIONWIDE MUTUAL INSURANCE COMPANY OPINION BY
v. 	Record No. 3135-96-1 	JUDGE SAM W. COLEMAN III
AUGUST 12, 1997
JON STUART HILL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Fay F. Spence (Gene A. Woolard; Spence &
Whitlow, on brief), for appellants.
Terrence K. Martin (Overman, Cowardin &
Martin, P.L.C., on brief), for appellee.
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."

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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

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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). 	Thus, "sudden precipitating" event is one that
"immediately" causes an injury, as distinguished from an injury
that appears or occurs gradually. 	See Stenrich Group v. Jemmott,
251 Va. 186, 467 S.E.2d 795 (1996). 	However, an injury or
injuries may be caused by one or several "sudden [or immediate]
events" that cause the mechanical changes to occur in the body.
The commission did not err by finding that claimant suffered
the herniated discs as the result of a compensable accident
"arising out of" and "in the course of" his employment. 	While
moving the five-gallon paint buckets, claimant felt a pain in his
back and stopped moving the buckets. 	There was no evidence that
the herniated discs occurred gradually or over a period of time.
There was no evidence that claimant had a history of a prior
disc problem. 	The commission, as finder of fact, could
reasonably have found on these facts that while lifting the five

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to seven buckets the claimant felt "soreness" which was the pain
that he was experiencing as the discs herniated as a result of
his lifting one or more of the five to seven buckets. 	Lifting
one or more of the buckets was the "sudden precipitating event"
or events that caused the discs to herniate, which was "an
obvious sudden . . . structural change in the body." 	The fact
that the claimant did not or could not identify precisely which
bucket or buckets he was lifting when the disc or discs herniated
does not constitute a failure to prove that an immediate or
sudden event or events caused the discs to herniate. 	Unlike the
claimant in Morris, who, after unloading seven steel doors from a
truck, later developed soreness in his back and could not recall
a specific incident that caused his injury, claimant immediately
felt "soreness" while he lifted the buckets. 	These facts support
the commission's finding that when claimant felt "soreness" as he
was lifting several buckets he was experiencing pain associated
with the discs herniating, which were sudden mechanical or
structural changes in the body. 	Accordingly, we affirm the
commission's decision.
Affirmed.