COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

NEW RIVER CASTINGS 

AND 

ARGONAUT INSURANCE COMPANY 

 

v. Record No. 1027-96-3 

KEVIN C. HURST 

 MEMORANDUM OPINION*

AND PER CURIAM 

 NOVEMBER 12, 1996 

KEVIN C. HURST 

v. Record No. 1149-96-3 

NEW RIVER CASTINGS 

AND 

ARGONAUT INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (J. Gorman Rosenberger, Jr.; Wilson, Garbee & 

Rosenberger, on briefs), for New River 

Castings and Argonaut Insurance Company. 

 (Deborah W. Dobbins; Gilmer, Sadler, Ingram, 

Sutherland & Hutton, on briefs), for Kevin C. 

Hurst. 

 New River Castings and its insurer (hereinafter collectively 

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

Commission ("commission") erred in finding that Kevin C. Hurst 

("claimant") proved (1) he sustained a sudden mechanical change 

in his body as the result of an identifiable work-related 

incident on September 26, 1994; (2) a causal connection existed 

between his right scapula condition and the September 26, 1994 

 

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

designated for publication. 
 2 

work-related incident; and (3) he remained on light-duty status 

as a result of the September 26, 1994 work-related incident. 

(Record No. 1027-96-3). Claimant contends that the commission 

erred in finding that he failed to prove he made a good faith 

effort to market his residual work capacity after March 17, 1995. 

 (Record No. 1149-96-3). Upon reviewing the record and the 

briefs of the parties, we find that these appeals are without 

merit. Accordingly, we summarily affirm the commission's 

decision as to all issues raised by the parties.1

 Rule 5A:27. 

Injury by Accident (Record No. 1027-96-3) 

 On September 26, 1994, claimant had been working for 

employer as a "knock-out" laborer for three weeks. On that date, 

he was using a sledgehammer to knock iron risers off spindles. 

At a particular point in time, he hit the riser with the hammer 

and felt a severe pain in the right middle portion of his back. 

Claimant was not physically able to continue working and 

immediately sought medical treatment at the first aid station. 

David Daily, the first aid attendant on duty, testified that 

claimant told him "he was working at the knock-out job and he was 

hammering castings, degating castings. And when he swung the 

hammer down he felt a pain and he came over to first aid to get 

 

 1Claimant filed a motion to remand for consideration of 

after-discovered evidence. The evidence submitted by claimant 

with the motion relates to a charge of discrimination claimant 

filed with the Equal Opportunity Commission against employer 

under the Americans with Disabilities Act. Because this evidence 

does not contain any information relevant or material to the 

issues on appeal, we deny claimant's motion. 
 3 

treated for that." On October 4, 1994, Dr. Matthew Skewes 

diagnosed claimant as suffering from back pain and spasms related 

to the September 26, 1994 work-related incident. Dr. Skewes 

noted that claimant "thinks pulled muscle swinging - sledge 

hammer."2

 "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, 598, 385 S.E.2d 

858, 865 (1989). On appeal, factual findings made by the 

commission will be upheld when supported by credible evidence. 

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

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

 The commission held that "claimant's uncontradicted 

testimony, corroborated by the testimony of the emergency medical 

technician, supports the finding of a sudden, identifiable 

incident contemporaneous with a mechanical change in the body 

which resulted in injury on September 26, 1996 [sic]." In so 

ruling, the commission found as follows: 

 The claimant's uncontradicted testimony 

clearly identified a particular moment when 

he was swinging the sledgehammer that he felt 

 

 2Several years before the September 1994 accident, claimant 

underwent kidney surgery in the same area where he felt the 

sudden pain on September 26, 1994. Dr. Sinclair Ross Mackay 

opined that preexisting weakness in this area caused by the 

surgery made claimant more prone to straining his right flank 

area. 
 4 

pain, followed almost immediately by swelling 

in the right flank muscles. 

 It is of no moment that the claimant had 

a muscular deficiency from prior surgery. 

The employer takes the employee with all his 

pre-disposing weaknesses and infirmities. 

Thus, the employer is liable for the effects 

of the industrial accident that aggravates or 

otherwise contributes to a preexisting 

condition or other weakness to produce 

further injury. 

 Claimant's uncontradicted testimony, corroborated by the 

history taken by Daily and Dr. Skewes, constitutes credible 

evidence to support the commission's finding that claimant 

experienced an identifiable incident on September 26, 1994 

resulting in a sudden mechanical or structural change in his 

right flank area. 

Causation (Record No. 1027-96-3) 

 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). "The 

actual determination of causation is a factual finding that will 

not be disturbed on appeal if there is credible evidence to 

support the finding." Ingersoll-Rand Co. v. Musick, 7 Va. App. 

684, 688, 376 S.E.2d 814, 817 (1989). 

 Drs. Skewes and Mackay acknowledged that claimant's right 

flank pain developed at a particular point in time when claimant 

swung the sledgehammer on September 26, 1994. This testimony, 

along with claimant's testimony that he had never felt this 

particular pain before, constitutes credible evidence to support 
 5 

the commission's finding that claimant established the requisite 

causal connection between the accident and the injury. The 

opinions of Drs. Mackay and Rollin J. Hawley that the claimant's 

injury was a reasonably expected result of claimant using already 

weakened muscles for three weeks is of no consequence. "[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). 

Light-Duty Status (Record No. 1027-96-3) 

 Drs. Mackay and Hawley opined that claimant could not return 

to his heavy manual labor job with employer. On October 24, 

1994, after claimant's unsuccessful attempt to return to his 

pre-injury work, Dr. Skewes restricted claimant to light-duty, 

from which claimant has not been released. In his deposition 

testimony, Dr. Skewes opined that if claimant had not sustained 

the September 26, 1994 accident, he would have been able to 

continue working without restriction. This testimony provides 

credible evidence to support the commission's finding that 

claimant remained on light-duty status. "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." Wagner 

Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 

(1991). 
 6 

Marketing (Record No. 1149-96-3) 

 "In determining whether a claimant has made a reasonable 

effort to market his remaining work capacity, we view the 

evidence in the light most favorable to . . . the prevailing 

party before the commission . . . ." National Linen Serv. v. 

McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989). A 

claimant still has the burden of proving his entitlement to 

benefits, and to do so he must prove that he made a reasonable 

effort to procure suitable work but was unable to market his 

remaining work capacity. Great Atl. & Pac. Tea Co. v. Bateman, 4 

Va. App. 459, 464, 359 S.E.2d 98, 100 (1987). Unless we can say 

as a matter of law that claimant's evidence was sufficient to 

sustain his burden of proof, the commission's finding is binding 

and conclusive upon us. Tomko v. Michael's Plastering Co., 210 

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

 Employer provided claimant with light-duty work from October 

15, 1994 through March 17, 1995. When this light work ended, 

claimant, a high school graduate with two years of community 

college, did not begin looking for work for approximately one 

month. On April 12, 1995, he began working part-time at a 

convenience store, earning $139.29 per week. Claimant's 

pre-injury average weekly wage was $518.27. Claimant refused the 

store's offer of full-time employment because his attorney 

advised him to reject it and because he attended school three 

hours per day. Claimant made no other effort to find work. 
 7 

 Viewing this record in the light most favorable to employer, 

and in light of the factors enumerated in McGuinn, we cannot find 

as a matter of law that claimant's evidence proved he made a good 

faith effort to market his residual work capacity after March 17, 

1995. Accordingly, the commission did not err in refusing to 

award claimant compensation after March 17, 1995. 

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

 Affirmed.