COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

MERILYN JACKSON BURGESS 

 MEMORANDUM OPINION*

v. Record No. 1120-98-1 PER CURIAM 

 NOVEMBER 24, 1998 

HAMPTON (CITY OF) SCHOOL BOARD 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Chester L. Smith, on brief), for appellant. 

 No brief for appellee. 

 Merilyn Jackson Burgess ("claimant") contends that the 

Workers' Compensation Commission ("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 either 

January 23, 1997 or January 29, 1997. Upon reviewing the record 

and claimant's brief, we conclude that this appeal is without 

merit. Accordingly, we summarily affirm the commission's 

decision. See Rule 5A:27. 

 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 

 

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

designated for publication. 
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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 

sustained a sudden mechanical change in her body as a result of 

an identifiable incident occurring at work on either January 23, 

1997 or January 29, 1997. In so ruling, the commission found as 

follows: 

 The medical evidence fails to establish 

a new injury, and fails to relate the 

claimant's current symptoms to the alleged 

work accidents. Although Dr. [Shawke] 

Soueidan diagnosed fibromyalgia type pain 

secondary to physical trauma, that had been 

the diagnosis since 1994. We can only 

speculate as to the physical trauma Dr. 

Soueidan was referencing. Dr. Soueidan had 

previously described numerous injuries and 

accidents, and even noted that [claimant] had 

been involved in a vehicular accident within 

a month of her visit on January 31, 1997. He 

did not specifically relate any new injury or 

disability to the alleged work accidents. 

Indeed, he stated that [claimant] had been 

quite frustrated with her degree of pain over 

the past two years. Dr. [Elaine] Richardson 

made no mention of the alleged work 

accidents. The medical records establish 

that the claimant's condition has been 

chronic since at least 1993, and that her 

pain "is exacerbated by excessive physical 

activity." They do not establish a new 

mechanical or structural change in her body 

on January 23 or 29, 1997, nor do they prove 

that the current disability is causally 

related to the alleged work accidents. 

 The commission's findings are amply supported by the record. 
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 No medical evidence mentioned the January 23 or 29, 1997 

specific work-related incidents alleged by claimant, nor did any 

medical evidence causally relate a January 23 or 29, 1997 

work-related incident to a structural or mechanical change in 

claimant's body. In light of the lack of any persuasive 

medical evidence to establish that claimant sustained a 

structural or mechanical change in her body as the result of a 

work-related accident on either January 23 or 29, 1997, we cannot 

say as a matter of law that claimant's evidence sustained her 

burden of proof. Accordingly, we affirm the commission's 

decision. 

 Affirmed.