COURT OF APPEALS OF VIRGINIA 

Present: Judges Koontz,* Bray and Annunziata 

JAMES THOMAS HENDRICKS 

v. Record No. 0319-95-4 MEMORANDUM OPINION**

 PER CURIAM 

RIDGEWAY CLOCKS COMPANY AUGUST 29, 1995 

AND 

LUMBERMENS MUTUAL CASUALTY COMPANY 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Douglas K. W. Landau; Abrams, Landau Ltd., on brief), 

for appellant. 

 (Christopher M. Kite; Monica L. Taylor; Gentry, Locke, 

Rakes & Moore, on brief), for appellees. 

 James Thomas Hendricks (claimant) contends that the Workers' 

Compensation Commission (commission) erred in (1) finding that he 

failed to prove that he sustained an injury by accident arising 

out of and in the course of his employment on April 21, 1993; and 

(2) considering Dr. David B. Tapper's October 28, 1993 report 

filed by Ridgeway Clocks Company and its insurer (hereinafter 

collectively referred to as "employer") with the commission on 

November 12, 1993.1

 Upon reviewing the record and the briefs of 

 

 *Justice Koontz participated in the decision of this case 

prior to his investiture as a Justice of the Supreme Court of 

Virginia. 

 **Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 1The parties have also briefed the question of whether the 

claimant gave proper notice of his alleged accident to the 

employer. However, because our ruling on the "injury by 

accident" issue disposes of this appeal, we need not address the 

notice question. 
 2 

the parties, we conclude that this appeal is without merit. 

Accordingly, we summarily affirm the commission's decision. Rule 

5A:27. 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "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). Unless we can say as a matter of law that the 

claimant's evidence sustained his burden of proof, the 

commission's findings are binding and conclusive upon us. Tomko 

v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 

835 (1970). 

 The commission was confronted with conflicting accounts of 

how and when the claimant's back injury was sustained, and it was 

for the commission to decide the weight to be given these 

accounts and the credibility of the witnesses. See Pence Nissan 

Oldsmobile v. Oliver, 20 Va. App. ___, ___ S.E.2d ___ (1995). 

The commission may consider medical histories as party admissions 

and for purposes of impeachment of the claimant's testimony. Id.

 The claimant testified that, on April 21, 1993, his back 

"snapped" at approximately 11:00 or 11:30 a.m., as he was moving 
 3 

 

a wooden post, weighing approximately eight pounds. Later that 

day, the claimant told his supervisor, Thomas Collins, that his 

back was hurting, but he did not mention any specific accident or 

work-related event to Collins. Collins made note of the 

claimant's general complaints of back pain. 

 Dr. Tapper's April 21, 1993 records indicate that the 

claimant stated, "[a]woke yesterday a.m. with his back hurting 

him much worse. Went to work anyway but could barely walk. He 

is worse today. The pain is diffusely in his lumbar back. 

Taking his Darvocet without relief. Unaware of any specific 

injury. . . . Exacerbation of chronic back syndrome status post 

lumbar surgery times two."2

 On June 11, 1993, Dr. Tapper 

reiterated that the claimant's problems were due to prior disc 

problems and that his present condition was a continuation of 

those problems. Dr. Tapper's June 11, 1993 notes also do not 

indicate that the claimant mentioned any specific work-related 

accident to him on that date. On October 28, 1993, Dr. Tapper 

stated at the time the claimant was examined on April 21, 1993, 

he "could recall no specific event that precipitated his acute 

increase in his pain. He denied any specific event occurring at 

work to his knowledge. All he could recall was awakening the 

morning before presentation with much more severity of his 

chronic back pain." 

 2The medical records establish that the claimant had a long 

history of back problems. He underwent a cervical laminectomy in 

1978 and back surgery in 1987 and 1988. Dr. Tapper had been 

treating the claimant since 1988 for his chronic back problems. 
 4 

 In reversing the deputy commissioner and finding that the 

claimant failed to prove that he suffered a new injury by 

accident on April 21, 1993, the full commission found as follows: 

 Dr. Tapper's view that the disability is a 

result of a progression of the claimant's 

prior back problems is supported by the fact 

that the claimant did not mention a new 

accident when he saw him the day of the 

alleged accident, nor did he describe a 

specific accident to anyone at work. Dr. 

Tapper's report indicates that the claimant 

had back pain before he went to work that 

day. Although the claimant's condition 

clearly worsened, he did not prove that this 

was the result of a new accident, rather than 

a gradual deterioration of his prior back 

problems. 

 "[I]njuries resulting from repetitive trauma . . . as well 

as injuries sustained at an unknown time, are not 'injuries by 

accident' within the meaning of Code § 65.1-7 [now Code 

§ 65.2-101]." Morris, 238 Va. at 589, 385 S.E.2d at 865. After 

reviewing all of the evidence, the commission ruled that, in 

light of the claimant's failure to mention any specific incident 

to Dr. Tapper or his co-workers immediately following the alleged 

incident, he failed to prove an injury by accident. Based upon 

this record, we cannot say as a matter of law that the claimant's 

evidence sustained his burden of proving an injury by accident 

occurring on April 21, 1993. 

 The claimant did not ask the full commission to review the 

deputy commissioner's decision to consider Dr. Tapper's October 

28, 1993 report. Therefore, we will not consider this issue on 

appeal. Decisions of a deputy commissioner that are not reviewed 
 5 

by the full commission cannot be brought before this Court. 

Southwest Architectural Prods. v. Smith, 4 Va. App. 474, 478, 358 

S.E.2d 745, 747 (1987). 

 For the reasons stated, we affirm the commission's decision. 

 Affirmed.