COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

HARRY S. SMITH 

v. Record No. 1380-96-3 MEMORANDUM OPINION*

 PER CURIAM 

BABCOCK & WILCOX COMPANY JANUARY 14, 1997 

AND 

PACIFIC EMPLOYERS INSURANCE 

 COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (James B. Feinman; Esther S. McGuinn, on 

brief), for appellant. 

 (Ruth Nathanson; Midkiff & Hiner, on brief), 

for appellees. 

 Harry S. Smith ("claimant") contends that the Workers' 

Compensation Commission ("commission") erred in finding that he 

failed to prove he sustained an injury by accident arising out of 

and in the course of his employment on July 24, 1994. Upon 

reviewing the record and the briefs of the parties, 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. 

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

order to carry his burden of proving an 'injury by accident,' a 

claimant must prove that the cause of his injury was an 

 

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

designated for publication. 
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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). By contrast, a gradually incurred injury is not an 

injury by accident within the meaning of the Act. Middlekauff v. 

Allstate Ins. Co., 247 Va. 150, 154, 439 S.E.2d 394, 397 (1994). 

 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. Tomko v. Michael's Plastering 

Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). 

 Claimant testified that, on July 24, 1994, while at work, he 

helped to remove and replace an air conditioner compressor. The 

air conditioning unit, which weighed 200 pounds, was located in a 

sheet metal enclosure on the roof of a building. Lack of space 

inside the enclosure made it difficult to move around and work on 

the compressor. As claimant and a co-worker lifted the 

compressor by holding either end of a strap placed under the 

compressor, claimant felt a pull or slight strain in his back. 

Claimant felt no other pain and continued to work the remainder 

of his shift, without increased discomfort. However, he awoke in 

pain the next morning. His pain progressively worsened over the 

course of the day. 

 Based upon claimant's testimony, the commission found that 

he proved a precipitating incident. However, the commission 

denied claimant's application on the ground that he failed to 
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prove that his back injury, if caused by his work, resulted from 

the compressor lifting incident, rather than the cumulative 

effect of lifting, pulling, bending, jerking, and shoving 

throughout the work day. In so ruling, the commission gave more 

weight to the opinion of Dr. Donald G. Branson than to the 

opinion of Dr. William C. Andrews, Jr. Dr. Branson declined to 

offer an opinion about causation, stating that he could not do so 

because of a conflict in the initial medical history. The 

commission found as follows: 

 As Dr. Branson noted, the history 

recorded by the initial treating physicians 

did not report a symptomatic injury while 

lifting the air conditioner compressor, only 

that it was one and perhaps the heaviest of 

multiple lifting tasks [claimant] performed 

that day. His symptoms were reportedly 

manifest only the next day after a long car 

ride, and Dr. Branson reasonably declined to 

offer an opinion on causation based on this 

history. By the time the claimant saw Dr. 

Andrews, he apparently attributed his injury 

to lifting the compressor, and Dr. Andrews 

based his opinion of causation on such 

history. 

 These findings are supported by Dr. Cuong Do's July 26, 1994 

office notes. Those notes reflect that claimant gave a history 

to the nurse of "lifting an air compressor on July 24, 1994," and 

he gave a history to Dr. Cuong Do of "lifting a lot of heavy 

material on Sunday . . . and on Monday morning approximately 

11:00 after long car ride, [claimant] noticed he had some lower 

back pain." 

 In light of the conflicting initial medical histories and 
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Dr. Branson's opinion, the commission, as fact finder, was 

entitled to reject Dr. Andrews' opinion on causation. "Questions 

raised by conflicting medical opinions must be decided by the 

commission." Penley v. Island Creek Coal Co., 8 Va. App. 310, 

318, 381 S.E.2d 231, 236 (1989). Based upon the lack of 

persuasive medical evidence to establish that the July 24, 1994 

lifting incident caused claimant's back injury, we cannot say as 

a matter of law that claimant met his burden of proof. 

 Claimant also argues that the commission denied him due 

process by considering inadmissible hearsay contained in the 

medical records to find that he failed to meet his burden of 

proof. This contention is without merit. In McMurphy Coal Co. 

v. Miller, 20 Va. App. 57, 59, 455 S.E.2d 265, 266 (1995), we 

held that under common law rules of evidence, medical histories 

are admissible substantively as party admissions. Thereafter, we 

recognized in Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314, 

456 S.E.2d 541 (1995), that, under Rule 2.2 of the Rules of the 

Workers' Compensation Commission, the commission may consider 

medical histories in determining how an accident occurred. Rule 

2.2 gives the commission "'[t]he discretion to give probative 

weight to hearsay statements in arriving at its findings of 

fact.'" Id. at 319, 456 S.E.2d at 544 (quoting Williams v. 

Fuqua, 199 Va. 709, 714, 101 S.E.2d 562, 566 (1958)). 

 For these reasons, we affirm the commission's decision. 

 Affirmed.