COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

NATIONAL FRUIT PRODUCTS COMPANY, INC. and 

 LIBERTY MUTUAL FIRE INSURANCE COMPANY 

v. Record No. 1827-95-4 MEMORANDUM OPINION*

 PER CURIAM 

HERMAN MILTON CLARK, III FEBRUARY 6, 1996 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (David J. Andre; J. David Griffin; Fowler, 

Griffin, Coyne & Coyne, on brief), for 

appellants. 

 No brief for appellee. 

 National Fruit Products Company, Inc. (employer) contends 

that the Workers' Compensation Commission (commission) erred in 

(1) finding that Herman Clark's (claimant) bronchitis constituted 

an injury by accident rather than an ordinary disease of life; 

(2) not applying the clear and convincing evidence standard set 

forth in Code § 65.2-401; and (3) refusing to consider evidence 

of claimant's pre-existing bronchitis, tobacco abuse, and the 

side effects of his medication. Upon reviewing the record and 

employer's brief, 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. 

 

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

designated for publication. 
 2 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

Claimant worked for employer as a lift truck operator. On 

July 5, 1994, while in the course of his employment, as claimant 

walked through employer's filter room to go to the restroom, 

vinegar fumes took his breath away. He began to cough and then 

vomited. The next day he felt a knot in his chest. After a few 

days, he felt a burning sensation in his chest. 

 Claimant did not work between July 5, 1994 and July 15, 

1994. During that time, he experienced side effects associated 

with propranolol, a medication he was taking for high blood 

pressure. These side effects included breathing difficulties, 

nausea, and diarrhea. 

 On July 15, 1994, claimant reported the July 5, 1994 

inhalation incident to his supervisor. On July 15, 1994, 

claimant obtained medical treatment at Amherst Family Practice 

(Amherst), where he provided a history of inhalation of vinegar 

fumes. An Amherst physician diagnosed claimant as suffering from 

bronchitis, secondary to inhalation of fumes at work, together 

with a possible adverse reaction to amoxicillin. The physician 

also noted that claimant's bronchitis was secondary to 

"inhalation injury." In a November 1, 1994 Attending Physician's 

Report, Dr. H. Nelson Gustin, III, answered "Yes" to the question 

whether the diagnosed condition was caused by the inhalation 

occurrence described by claimant. 

 The commission held that claimant proved that his July 5, 
 3 

1994 inhalation injury, which caused his bronchitis, constituted 

an injury by accident arising out of and in the course of his 

employment. In so ruling, the commission found as follows: 

 The claimant chose to pursue his remedy on 

an accident theory, rather than an 

occupational disease theory. Although 

bronchitis is normally thought of as a 

disease, as pointed out by counsel for the 

employer, the condition may result from a 

single exposure episode, as occurred in this 

case. The claimant's bronchial condition is 

clearly the result of an exposure which 

occurred as he was walking through a room, 

some 135 feet long, and he had only passed 

partially through the room. The injury 

occurred in a sufficiently short and discrete 

period of time to constitute an injury by 

accident, as that term has been defined by 

the appellate courts of the Commonwealth. 

The claimant was clearly in the course of his 

employment when the incident occurred. We 

find that the injury itself is sufficiently 

established by the medical evidence set forth 

above. 

 "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). 

 Claimant's undisputed testimony described an identifiable 

incident resulting in an obvious sudden mechanical change in his 

body. In addition, claimant's physicians characterized his 

bronchitis as an "injury" based upon claimant's history. That 

history was consistent with claimant's testimony. No evidence 
 4 

contradicted the medical records, which clearly provide a causal 

connection between the July 5, 1994 inhalation incident and 

claimant's bronchitis. Claimant's testimony and the medical 

records provide ample credible evidence to support the 

commission's findings. In light of this undisputed evidence, the 

commission was entitled to give little weight to claimant's prior 

history of bronchitis, smoking, and high blood pressure. 

 The commission's findings, which are supported by credible 

evidence, are binding and conclusive on appeal. Accordingly, the 

commission did not err in ruling that claimant's bronchitis 

resulted from the July 5, 1994 injury by accident rather than an 

ordinary disease of life. 

 For the reasons stated, we affirm the commission's 

decision.1

 Affirmed.

 

 1Because of our ruling on employer's first question 

presented, we need not address employer's second question 

presented.