COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Felton and Senior Judge Willis 

KENNETH R. HASH 

 MEMORANDUM OPINION*

v. Record No. 2766-02-3 PER CURIAM 

 FEBRUARY 25, 2003 

MOTIVATION COAL COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (D. Allison Mullins; Lee & Phipps, P.C., on 

brief), for appellant. 

 (Michael F. Blair; Lisa Frisina Clement; 

PennStuart, on brief), for appellee. 

 Kenneth R. Hash (claimant) contends the Workers' 

Compensation Commission erred in finding that he failed to prove 

that he sustained an injury by accident arising out of and in 

the course of his employment in October 2001. Upon reviewing 

the record and the parties' briefs, we conclude that this appeal 

is without merit. Accordingly, we summarily affirm the 

commission's decision. Rule 5A:27. 

 "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 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
- 2 - 

S.E.2d 858, 865 (1989). Unless we can say as a matter of law 

that claimant's evidence sustained his 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). 

 Claimant testified that in mid-October 2001, "I was running 

a dozer in the shot and slid off a rock. It was a big jar, and 

I instantly noticed pain in my leg." He claimed that he hurt 

his right hip. He stated that he reported the incident to his 

foreman, David Scott, that same day, and to his co-workers, 

Roger Williams and Neil Steel, that same evening. He testified 

that on some later occasion in employer's parking lot, he told 

Gary Dotson, the mine superintendent, that his hip was hurting, 

but he did not know what was wrong. 

 Claimant continued to work until November 12, 2001. He 

first sought medical treatment on November 3, 2001, when "the 

pain got so bad that I couldn't take it so I got on the radio, 

hollered for the job foreman." 

 Steel, who carpooled with claimant during October 2001, 

testified that at some point when claimant got into his car for 

a ride home after a shift, claimant said "he ran over a rock in 

a dozer, and it chilled him pretty good and pain went down his 

legs." 

 Scott testified that on November 3, 2001, claimant called 

him on his CB radio and told him he was experiencing back and 
- 3 - 

hip pain that had been bothering him for a couple of days. 

Claimant did not tell Scott that he had been injured on the job. 

Scott testified that claimant never told him about any 

work-related incident and that he first learned of the incident 

when Dotson told him about it sometime between November 15 and 

November 20, 2001. Steel did not mention any job injury to 

Scott. 

 Dotson testified that on November 12, 2001, claimant 

complained of pain, but denied that he had gotten hurt. On 

November 15, 2001, claimant called Dotson wanting "to know 

basically how he needed to file his claim, insurance or comp." 

Dotson reminded claimant of their November 12, 2001 conversation 

wherein he denied getting hurt. Dotson denied that claimant 

told him he had informed Scott about the incident, and he denied 

that claimant told him about any accident involving a bulldozer. 

On November 15, 2001, Dotson called claimant to explain the 

procedures for filing a compensation or insurance claim. On 

November 16, 2001, claimant called Dotson to advise that he was 

going to file a workers' compensation claim. Dotson testified 

that he told claimant that he needed to complete an accident 

report, and he reminded claimant of the procedure. He also told 

claimant that he believed that because there was no specific 

incident, the claim would be denied. 

 Judy Hankins, the RN case manager, called claimant on 

November 15, 2001, after she learned that he was reporting he 
- 4 - 

had been injured on the job. When she asked Hash if he had been 

injured, he could not identify a date of injury. He asked his 

wife to check his calendar, and she told claimant and Hankins 

that it had been on October 31, 2001. Hankins stated that 

claimant told her about two separate incidents: one in which he 

had right hip pain while running a dozer reclaiming a steep 

slope on October 31, 2001, and one that occurred on some earlier 

unspecified date. In describing the earlier incident, claimant 

told Hankins that "[h]e was pushing an overburden after a shot 

with a dozer, and the dozer slipped off a rock and jarred him," 

and "[he] went numb all over for a while." Claimant told 

Hankins that he reported that incident to Scott. 

 In claimant's February 5, 2002 deposition, made a part of 

the record, he denied that the accident occurred on October 31, 

2001. Rather, he claimed that it occurred in mid-October 2001. 

However, he could not identify a date, day of the week, or time 

of day the alleged incident occurred. 

 On November 3, 2001, claimant sought medical treatment at 

the emergency room at St. Mary's Hospital. The triage notes 

indicate that claimant had right hip pain of several days, but 

that he denied any trauma or injury. He also denied any past 

history of hip pain. The physician's notes report that claimant 

had worsening right hip pain for about a week with no history of 

injury. Claimant's right hip was x-rayed, and he was diagnosed 
- 5 - 

with bursitis. A November 8, 2001 MRI suggested a right L5-6 

disc herniation. 

 On November 16, 2001, Dr. D. Kevin Blackwell examined 

claimant, noting that claimant reported symptoms "for the last 2 

weeks after he was injured while operating a dozer. He believes 

that he jarred himself on the equipment." Dr. Blackwell 

referred claimant to Dr. Woods for further evaluation. On a 

form completed by claimant for Dr. Blackwell, claimant indicated 

that the injury occurred on November 3, 2001 at 1:30. 

 On November 21, 2001, claimant presented to the St. Mary's 

Outpatient Clinic with ongoing right hip pain. Those notes 

indicate, "S/P Injury on job on 11-3-01." The physician noted 

an injury date of "11/3/01." 

 On January 7, 2002, Dr. Ken W. Smith recorded the following 

history reported by claimant: 

In mid-October he was operating a bulldozer 

at his place of employment when the 

bulldozer slid off a rock, causing the cab 

of the dozer to jar harshly. He reports 

after the jar he immediately had onset of 

right lower extremity pain. 

Studies ordered by Dr. Smith confirmed the diagnosis of a disc 

herniation, and Dr. Smith recommended surgery. 

 On December 17, 2001, claimant's physical therapist 

recorded that "in October 2001 while operating a dozer at work, 

the dozer slid off a rock jarring his back and right hip." 
- 6 - 

 Dr. Smith performed surgery on claimant on January 9, 2002. 

In response to written questions from claimant's counsel, 

Dr. Smith opined that claimant's disability was caused by his 

"October 1, 2001 injury." 

 In affirming the deputy commissioner's denial of claimant's 

application, the commission found as follows: 

 The weight of the evidence suggests 

that the claimant did injure his back at 

work. However, he has not proven that his 

back injury was caused by an accident which 

occurred at a particular time and in a 

particular place and in a particular 

incident, and 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. The claimant did state 

rather consistently that he jarred his back 

while operating a bulldozer in mid October. 

However by the time he sought medical 

treatment in November, he did not identify a 

causative injury, and seemed to attribute 

his problem to work activities on October 

31, 2001. The record as a whole does not 

establish that it was the incident at an 

undetermined time in mid October, which 

caused the disc problem, as opposed to 

repetitive work culminating on October 31. 

(Citation omitted.) 

 It is well settled that credibility determinations are 

within the fact finder's exclusive purview. Goodyear Tire & 

Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 

(1987). Given the numerous irreconcilable inconsistencies and 

contradictions in the record as to when and how claimant injured 

himself, the commission, as fact finder, was entitled to reject 
- 7 - 

claimant's testimony and to conclude that the evidence, taken in 

its entirety, was insufficient to prove by a preponderance that 

claimant sustained an identifiable incident or sudden 

precipitating event that caused an obvious sudden mechanical or 

structural change in his body. 

 Based upon this record, we cannot find as a matter of law 

that claimant's evidence sustained his burden of proving a 

compensable injury by accident. Accordingly, we affirm the 

commission's decision. 

Affirmed.