COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Overton and Senior Judge Hodges 

Argued at Salem, Virginia 

COEBURN-NORTON-WISE REGIONAL 

 WASTEWATER TREATMENT AUTHORITY AND 

 VML INSURANCE PROGRAMS MEMORANDUM OPINION* BY 

 JUDGE JOHANNA L. FITZPATRICK 

v. Record No. 2964-95-3 JULY 16, 1996 

 

DANIEL JAY SEXTON 

 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Frank Friedman (Paul C. Kuhnel; Woods, Rogers & 

Hazlegrove, P.L.C., on brief), for appellants. 

 No brief or argument for appellee. 

 Coeburn-Norton-Wise Regional Wastewater Treatment Authority 

(employer) appeals the commission's decision awarding workers' 

compensation benefits to Daniel Jay Sexton (claimant). Employer 

argues that the commission erred in finding credible evidence 

that claimant suffered an injury by accident. We agree and 

reverse the commission. 

 On April 23, 1995, claimant injured his right shoulder while 

working for employer. Claimant testified that he turned a valve 

and "it felt like something just ripped in [his] shoulder." 

Prior to this accident, claimant had other problems with his 

shoulder, including a similar injury in 1992. However, claimant 

did not suffer "ongoing discomfort" in his shoulder until the 

April 23, 1995 accident. 

 

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

designated for publication. 
 2 

 The morning after the accident, claimant sought medical 

treatment from Dr. John Ellis, who referred him to Dr. Michael 

Lyons, an orthopedist. In an April 24, 1995 report, Dr. Ellis 

stated that claimant "[h]urt right shoulder opening and closing 

valves. Says some problems prior, specific precipitating event 

unclear." In a second report dated April 24, 1995, Dr. Ellis 

noted that claimant's pain had "been 'coming on' for long time 

[and was] worse recently." Dr. Lyons examined claimant on April 

25, 1995, and reported as follows: 

 [The patient complains] of having pain in his 

right shoulder going into his neck for the 

past year. The patient states that he has 

had several episodes of a "pulled muscle in 

his shoulder and neck." The patient states 

that he usually just waits and the pain goes 

away. The patient states that this past week 

though while opening and closing large valves 

he began to have more pain. 

(Emphasis added). Dr. Lyons diagnosed claimant's condition as 

acromion calcification" and restricted claimant's use of his 

right arm pending a MRI. In a May 15, 1995 letter, Dr. Lyons 

also noted as follows: 

 In his original medical information sheet 

dated 4-28-95 the patient directly relates 

his shoulder hurting to working valves at the 

plant. It is noted however, that the patient 

has had prior problems with the shoulder and 

it would be impossible to differentiate the 

two. . . . The primary cause of the point of 

his current symptoms appears to be an overuse 

syndrome from turning the valves that he has 

to do at work. 

(Emphasis added). Claimant returned to work May 23, 1995, and 

sought benefits from April 24, 1995 to May 22, 1995. The 
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commission awarded benefits to claimant and stated as follows: 

 It is clear from the claimant's 

testimony that he has experienced right 

shoulder pain from time to time while 

performing his work duties. However, we find 

upon Review that his testimony as to the 

manner in which he was injured on April 23, 

1995, and the sudden onset of right shoulder 

pain while turning a specific valve, is more 

persuasive than what appears to be a casual 

reference to valves in the various medical 

reports and in the questions posed by counsel 

for the employer. 

 We recognize that, on appeal, "we review the evidence in the 

light most favorable to the prevailing party." R.G. Moore Bldg. 

Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 

(1990). "Factual findings of the . . . [c]ommission will be 

upheld on appeal if supported by credible evidence." James v. 

Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 

488 (1989). "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). 

 In the instant case, no credible evidence supports the 

commission's finding that claimant suffered an injury by accident 

on April 23, 1995. Rather, claimant's history and the medical 

evidence establish a gradually occurring problem or "overuse 

syndrome" that simply manifested itself on the date that claimant 

felt the pain in his shoulder. Under these circumstances, 
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claimant's description, standing alone, is insufficient to meet 

his burden of proving an identifiable incident resulting in "an 

obvious sudden mechanical or structural change in the body." 

Morris, 238 Va. at 589, 385 S.E.2d at 865.1 

 Accordingly, the decision of the commission is reversed. 

 Reversed. 

 

 

 1In reaching this holding, we do not hold that credible 

medical evidence is required to prove an injury by accident. In 

some cases, the claimant's testimony alone may be sufficient to 

establish an identifiable injury by accident.