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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