COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

BROWN & ROOT, INC. 

AND 

ARGONAUT INSURANCE COMPANY 

v. Record No. 1548-95-4 MEMORANDUM OPINION*

 PER CURIAM 

LUTHER H. RICHARDS DECEMBER 19, 1995 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Mark D. Crawford; Friedlander, Misler, Friedlander, 

Sloan & Herz, on briefs), for appellants. 

 (Gregory J. Harris, on brief), for appellee. 

 Brown & Root, Inc. and its insurer (hereinafter collectively 

referred to as "employer") contend that the Workers' Compensation 

Commission erred in finding that (1) Luther H. Richards sustained 

a disabling injury by accident arising out of and in the course 

of his employment on July 13, 1994; and (2) employer was 

responsible for the cost of medical treatment rendered to 

Richards by physicians in Texas. 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. 

 Injury By Accident and Disability

 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). "In 

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

claimant must prove 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." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 

865 (1989). We must uphold the commission's findings of fact if 

they are supported by credible evidence. James v. Capitol Steel 

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). 

The determination of causation is a factual finding. IngersollRand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 

(1989). 

 Richards testified that on July 13, 1994, as he climbed off 

of a motor grader, he missed a step to the blade, and caught his 

entire weight with his arms. He pulled something in his back and 

neck and he felt a burning sensation from the back of his head to 

his feet. Richards told his coworkers that he had hurt himself. 

 Although he continued to try to work, he was in pain the rest of 

the day. That evening, Richards felt dizzy as he stood to go to 

the dinner table. Later, when he got out of bed to turn off a 

light, he felt back, shoulder and neck pain, and he lost control 

of his arms and legs. 

 Dr. Anil Patel treated Richards the following day. Richards 

reported a history of slipping from a grader as he missed a step. 

 Dr. Patel referred Richards to Dr. Ian Wattenmaker, a 
 3 

neurosurgeon. Dr. Wattenmaker noted a history consistent with 

Richards' testimony as to how the accident occurred. Dr. 

Wattenmaker also noted that, several times each day since the 

incident, Richards had felt an electric burning sensation that 

started at his neck and radiated into all extremities. Following 

his review of an MRI, Dr. Wattenmaker diagnosed cervical 

myelopathy, C5-6 spondylosis and disk herniation with cord 

compression, and C4-5 disk herniation with cord compression. Dr. 

Wattenmaker opined that Richards' back and neck symptoms had 

worsened since the July 13, 1994 accident, and Dr. Wattenmaker 

performed a diskectomy at C4-5 and C5-6 and interbody cervical 

fusions at C4-5 and C5-6. Dr. Wattenmaker opined that Richards' 

soft disc herniation was causally related to the July 13, 1994 

injury by accident. 

 The evidence supports the commission's finding that 

Richards' proved he sustained a compensable neck injury on July 

13, 1994. Richards' testimony and the medical records and 

opinions of Dr. Wattenmaker provide credible evidence to support 

the commission's findings. Richards testified to an identifiable 

incident, which was consistent with the medical histories. Dr. 

Wattenmaker linked Richards' herniated disc and resulting surgery 

and disability to this incident. 

 We find no merit in employer's argument that Dr. 

Wattenmaker's opinion was not credible because he did not have a 

complete medical history. Dr. Wattenmaker's records indicate 
 4 

that he was aware that Richards suffered from numerous incidents 

of pain and a burning sensation after the initial injury. 

Moreover, although Richards had pre-existing cervical 

spondylosis, Dr. Wattenmaker attributed the disc herniation and 

subsequent surgery to the July 13, 1994 injury by accident. 

 Although Dr. Charles Clegg, a chiropractor, had earlier 

treated Richards for back and neck pain, Dr. Clegg reported that, 

after treatment with physical therapy and heat, Richards "was 

doing well" upon release on May 11, 1994. Richards had been 

doing well since May 11, 1994 and was able to work as a heavy 

equipment operator before July 13, 1994. "[T]he employer takes 

the employee as he is and if the employee is suffering some 

physical infirmity, which is aggravated by an industrial 

accident, the employer is responsible for the end result of such 

accident." McDaniel v. Colonial Mechanical Corp., 3 Va. App. 

408, 414, 350 S.E.2d 225, 228 (1986). 

 Medical Treatment in Texas

 Where an employer denies a claim and refuses to pay 

compensation to an injured employee, the employee is permitted to 

select his own physician. Trammel Crow Co., Inc. v. Redmond, 12 

Va. App. 610, 615, 405 S.E.2d 632, 635 (1991). The employer 

denied Richards' claim. Richards was advised by Dr. Wattenmaker 

to seek medical care in Texas. Consequently, Richards was free 

to select his own physician. The commission did not err in 

holding employer responsible for the cost of medical treatment 
 5 

rendered to Richards in Texas. 

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

 Affirmed.