                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Annunziata
Argued at Richmond, Virginia


BERNARD LEE TREMELON, JR.
                                         MEMORANDUM OPINION* BY
v.   Record No. 0335-00-2             JUDGE JERE M. H. WILLIS, JR.
                                            DECEMBER 12, 2000
COMMERCIAL CONSTRUCTION CORPORATION AND
 TRIGON ADMINISTRATORS


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          W. Edward Riley, IV (Boone, Beale, Cosby &
          Long, on brief), for appellant.

          Patricia C. Arrighi (Taylor & Walker, P.C.,
          on brief), for appellees.


     Bernard Lee Tremelon, Jr., (claimant) appeals from a

decision of the Workers' Compensation Commission (commission)

denying his claim for benefits.     On appeal, Tremelon contends

that the 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 or about September 2, 1997.    We agree and

reverse the judgment of the commission.

                            I.   BACKGROUND

     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).

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     So viewed, the evidence established that Tremelon was a

construction superintendent working for Commercial Construction

Corporation.   Between August 31, 1997 and September 2, 1997, he

assembled cabinets in an unventilated shed using a special type

of glue, LOKWELD 500.   During the first two days, he was able to

take pieces of the cabinets outside to glue them.    However, on

the third day, September 2, 1997, the work required that he

remain inside the shed and that he work inside the cabinets.     As

that day progressed, he began to feel unwell.    That evening, he

began experiencing difficulty breathing and, during the early

morning hours of September 3, 1997, he was taken to the

hospital.   He was unable to communicate with medical personnel

and was thought to be suffering a heart attack.    When, after

several hours, his condition improved and it was determined that

he had not suffered a heart attack, he was released.    His

discharge summary, dated September 4, 1997, reported that he had

suffered "right-sided chest pain off and on for more than 12

hours in duration."   Dr. Yi-Nan Chou, a cardiologist, diagnosed

pleuritic chest pain of unknown cause, which was possibly due to

pleurisy.

     On December 23, 1997, Dr. Chou wrote that he had been

informed that Tremelon's chest pain occurred while working in a

metal shed using LOKWELD 500 glue.     Dr. Chou wrote "that

[Tremelon's] pleuritic chest pain and his hospitalization may be

work related."   By letter dated October 26, 1998, Dr. Chou

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reported that he had researched LOKWELD 500 and had discovered

that the compound could cause anaphylactic reactions and

dermatitis.   He wrote that Tremelon's "pleuritic chest pain

could probably be related to the inhalation [of the LOKWELD 500

glue]."   On February 25, 1999, Dr. Chou further reported:

           I have done a Med-Search concerning LOKWELD
           500 and could not find any reports
           concerning LOKWELD induced pleuritic chest
           pain. However, it has been well known that
           LOKWELD 500 is a[n] irritant to mucous
           membranes and to the skin. It is my
           personal opinion, therefore, that it is
           probably the cause of Mr. Bernard Tremelon's
           pleuritic chest pain after his exposure
           through inhalation.

     The commission held:

           [T]he . . . claimant experienced symptoms
           that gradually grew from an extended
           exposure. He stated that he sporadically
           worked with the glue for a span of three
           days. The claimant testified that the
           breathing difficulties began on the third
           day, late at night. There was no discreet
           [sic], identifiable incident. The claimant
           did not describe a distinct onset of
           symptoms. On the contrary, his illness
           "just progressed more and more, and the more
           it did, the less [he] could breathe . . . ."
           Similarly, the hospital discharge summary of
           September 4, 1997, reported "chest pain off
           and on for more than 12 hours in
           duration . . . [.]" . . . [T]he evidence
           does not establish a sudden, mechanical
           bodily change as contemplated by case law.

Thus, the commission found that Tremelon's condition resulted

from his exposure to the glue, but that the evidence failed to

prove a sudden mechanical bodily change resulting from a

discrete, identifiable incident.

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                      II.    INJURY BY ACCIDENT

     "In order to establish entitlement to compensation

benefits, the claimant must prove, by a preponderance of the

evidence, an injury by accident which arose out of and in the

course of his employment."     Classic Floors, Inc. v. Guy, 9 Va.

App. 90, 95, 383 S.E.2d 761, 764 (1989).    "[T]o establish an

injury by accident, a claimant must prove:    (1) an identifiable

incident; (2) that occurs at some reasonably definite time; (3)

an obvious sudden mechanical or structural change in the body;

and (4) a causal connection between the incident and the bodily

change."   Chesterfield County v. Dunn, 9 Va. App. 475, 476, 389

S.E.2d 180, 181 (1990) (citation omitted).    Unless the evidence

carried that burden of proof as a matter of law, the

commission's findings are binding and conclusive upon us.       See

Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d

833, 835 (1970).   Tremelon has carried that burden of proof.

                       A.    IDENTIFIABLE INCIDENT

     Although Tremelon worked with the LOKWELD 500 glue over a

period of three days, he underwent intense exposure to that

substance only on the third day, September 2, 1997.      During the

first two days, he was able to take small pieces of the cabinets

outside the shed to glue them in the open air.       It was only on

the third day that his duties required him to work within the

closed confines of the shed and, indeed, within the cabinets



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themselves.   We hold that this intense exposure, over the course

of a single day, constituted an identifiable incident.

                        B.   REASONABLY DEFINITE TIME

     Although Tremelon's symptoms did not manifest themselves

instantly, the evidence compels the conclusion that he suffered

the injuring irritation of the glue over the course of a single

day's work, a reasonably definite time.        The symptoms began to

manifest themselves as the day went on.        After the conclusion of

the day's work, he began to feel the full effects of the

irritation.

                C.   OBVIOUS SUDDEN MECHANICAL OR STRUCTURAL
                              CHANGE IN THE BODY

     Dr. Chou diagnosed irritation to Tremelon's mucous

membranes, resulting in pleuritic chest pain.        This condition

represented an obvious sudden mechanical or structural change in

Tremelon's body.

                                D.   CAUSATION

     "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) (citation

omitted).   Dr. Chou diagnosed the inhalation of LOKWELD 500

fumes as the probable cause of Tremelon's mucous membrane

irritation and pleuritic chest pain, which caused him to be

hospitalized.    Tremelon testified that prior to that day, he had


                                  - 5 -
never experienced physical symptoms like those he experienced

while working with the LOKWELD 500 glue.    Dr. Chou's opinion,

along with Tremelon's testimony, neither of which was

contradicted, support the commission's finding that Tremelon's

injury was causally related to inhalation of the glue on

September 2, 1997.

     Thus, the evidence proved all of the requirements of an

"injury by accident."

     The judgment of the commission is reversed, and this case

is referred to the commission for further proceedings based upon

Tremelon's entitlement to an award.

                                           Reversed and remanded.




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