COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Agee and Senior Judge Coleman 

WASHINGTON COUNTY SERVICE AUTHORITY AND 

 VML INSURANCE PROGRAMS 

 MEMORANDUM OPINION*

v. Record No. 2666-01-3 PER CURIAM 

 FEBRUARY 19, 2002 

DOUGLAS HARVEY TRIVITT 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Michael F. Blair; Lisa Frisina Clement; 

Penn Stuart, on brief), for appellants. 

 (Ginger J. Largen; Morefield & Largen, 

P.L.C., on brief), for appellee. 

 

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

designated for publication. 

 Washington County Service Authority and its insurer 

(hereinafter referred to as "employer") contend the Workers' 

Compensation Commission erred in finding that Douglas Harvey 

Trivitt (claimant) proved that he sustained an injury by 

accident arising out of and in the course of his employment on 

May 5, 2000. 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 

S.E.2d 858, 865 (1989). Factual findings made by the commission 

will be upheld on appeal if supported by credible evidence. See

James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 

S.E.2d 487, 488 (1989). 

 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). 

 Claimant testified that on May 5, 2000, while lifting a 

fifty-pound bag of chemicals to hand to his supervisor, he "felt 

a pop and a severe pain in [his] back." George Hagy, claimant's 

supervisor, testified that he was holding a door open, assisting 

the loading of the bags of chemicals, when he saw claimant 

lifting a bag about two feet off of the floor and "he kind of 

locked up in a stooped position." Hagy testified that claimant 

was sent to the emergency room because "he hurt his back." 

Claimant admitted that on May 5, 2000, prior to the incident, he 

had pain "here and there" in his back, but he functioned and was 

able to perform his work duties. 

 There was no dispute that claimant had suffered from 

significant back problems before May 5, 2000. As late as April 

4, 2000, Dr. Carey McKain, claimant's treating physician, noted 

that claimant was "doing terribly" with "severe back pain, worse 

than his leg pain . . . ." On April 18, 2000, Dr. McKain noted 

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that a repeat MRI did not show "any new disc lesions." In 

addition, Dr. McKain referred claimant to Dr. Jeffrey McConnell 

for an opinion regarding fusion surgery. 

 The May 5, 2000 emergency room report revealed that 

claimant complained of "low back [pain] into [right] hip and 

leg." Claimant reported the May 5, 2000 accident to Dr. McKain 

in a telephone conversation. Claimant told Dr. McKain he 

sustained a "marked increase of pain localized to his back, 

running into his hip but no new radicular affect." 

 On May 19, 2000, Dr. McKain noted that claimant was "doing 

terribly, having injured his back on the job when he was picking 

up sacks of fluoride on May 5, 2000." Dr. McKain noted claimant 

had increased his dosage of analgesics and that the 

"exacerbation of his pain is mostly in the back, but he has some 

radiation into both hips and thighs . . . ." He also noted that 

"[o]n straight leg raise he has tenderness which goes into the 

buttock on both sides, but with marked back pain, much worse 

than in the past." Dr. McKain opined that it was "clear that 

[claimant] has significantly worsened his condition," but chose 

to defer treatment modalities pending Dr. McConnell's 

recommendations. 

 On May 25, 2000, Dr. McKain indicated that claimant had 

agreed to proceed with Dr. McConnell's recommendation of surgery 

"if [his] discogram was confirmatory." On July 6, 2000, 

Dr. McKain noted that claimant's increased pain had not subsided 

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after the May 5, 2000 incident, indicating that claimant 

suffered from marked back pain and some leg pain. On August 17, 

2000, claimant complained to Dr. McKain of "pain mostly in the 

right leg . . . ." 

 On August 28, 2000, Dr. McKain responded to a letter from 

counsel for the insurer of the original compensable claim. In 

his response, Dr. McKain agreed that the May 5, 2000 accident 

"aggravated [claimant's] preexisting condition with a noticeable 

increase in symptoms and an inability to continue working." 

Dr. McKain agreed that claimant's symptoms after May 5, 2000 

were "materially different" from before the accident, requiring 

more medication and additional work restrictions. 

 In his September 25, 2000 deposition, Dr. McKain testified 

that claimant's pain was much worse after the May 5, 2000 

incident and, therefore, he would conclude that "something 

materially different . . . happened on that day." Dr. McKain 

stated that after the May 5, 2000 incident, claimant had more 

pain and less mobility; his medications had increased, and he 

was unable to work, whereas after his second surgery "he 

continued to work even though he was having problems." 

 In ruling that claimant proved he sustained an injury by 

accident on May 5, 2000, the commission found as follows: 

[T]he medical evidence . . . showed that it 

was unanimous that the claimant exacerbated 

his preexisting condition on May 5, 2000. 

. . . Dr. McKain noted "materially 

different" symptoms--spasm, less mobility, 

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worse pain, and increased medication use--

since the accident. He also noted that the 

claimant had steadily worked throughout his 

treatment, despite nagging complaints of 

pain, but that since the May 5, 2000, 

accident, he was unable to work. 

 Before the May 5, 2000 accident, the claimant's complaints 

were primarily back-pain complaints, as opposed to radicular 

complaints, and if there were reports of radicular symptoms, 

they were bilateral in nature. After the May 5, 2000 accident, 

however, his pain appeared to be located primarily in his right 

leg. The emergency room report noted on May 5, 2000 that the 

claimant complained of back and right leg pain. Dr. McConnell 

noted complaints of right lower back and right buttock pain. 

Dr. McKain noted on May 19, 2000 that straight leg raising 

produced pain "much worse than in the past" and on August 17, 

2000 described the pain as being "mostly in the right leg." 

Dr. William McIlwain also noted that the claimant's "pain is 

more leg pain than back pain now" and described right-leg pain. 

 Notwithstanding claimant's significant pre-existing 

conditions, his testimony was clear that he was lifting a heavy 

object and felt a sudden "pop" and severe pain. This accident 

was witnessed and corroborated at the hearing. The medical 

evidence showed increased symptoms and a markedly decreased 

ability to function. Finally, the medical evidence was 

unanimous that the May 5, 2000 accident aggravated the 

claimant's pre-existing condition. 

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 Claimant's testimony and the medical records of Drs. McKain 

and McConnell provide ample credible evidence to support the 

commission's findings. Based upon that credible evidence, the 

commission, as fact finder, could reasonably infer that the 

exacerbation of claimant's back condition was caused by an 

identifiable incident that resulted in an obvious sudden 

mechanical or structural change in his body. "In determining 

whether credible evidence exists [to support the commission's 

ruling], the appellate court does not retry the facts, reweigh 

the preponderance of the evidence, or make its own determination 

of the credibility of the witnesses." Wagner Enters., Inc. v. 

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). "The 

fact that there is contrary evidence in the record is of no 

consequence if there is credible evidence to support the 

commission's finding." Id. 

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

Affirmed.

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