                      COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Felton and Senior Judge Willis


ALFRED F. HOWINGTON
                                             MEMORANDUM OPINION*
v.   Record No. 0971-03-4                         PER CURIAM
                                               AUGUST 26, 2003
IMAGE WORKS LANDSCAPE MANAGEMENT, LLC AND
 AMERICAN STATES INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Alfred F. Howington, pro se, on briefs).

             (Brooke Anne C. Hunter; Kalbaugh, Pfund &
             Messersmith, on brief), for appellees.


     Alfred F. Howington (claimant) contends the Workers'

Compensation Commission erred in finding that he (1) failed to

prove he sustained an injury by accident on any particular date,

arising out of and in the course of his employment; and

(2) failed to give timely notice of his injury within the

statutory thirty-day period.     Claimant also raises the question

of "[w]hether the lack of available records regarding prior

work-related injuries and the use by . . . employees of personal

insurance for those injuries unfairly prejudices the

claimant/appellant when the lack of notification defense is used

by the employer and the employer's personal memory serves as the

record thereby posing a conflict of interest."       Upon reviewing


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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.

     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 [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).    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 August 22, 2000, he injured his

left knee when he fell down a ramp while removing equipment from

the rear of employer's truck.    Claimant felt immediate pain, but

did not think his injury was serious.    He stated that it was the

"type injury where you bump your knee."    He claimed there was

one eyewitness to the incident, but that the eyewitness no

longer worked for employer and he lived in New York.

     From August 22, 2000 to September 4, 2000, claimant felt

"[j]ust stiffness" in his left knee.    He stated that he fell
                              - 2 -
again on the ramp on September 4, 2000, landing on both knees,

resulting in a "dull pain" and "a throb."    Claimant testified

that he fell numerous times on the ramp before it was replaced

on April 19, 2001.    He estimated that he fell about ten times

between August 22, 2000 and April 19, 2001.    He also testified

that while working on an unspecified date, he stepped into a

ditch, his knee gave way, and he fell.    That incident caused his

knee to worsen.    Claimant could not recall if he reported that

incident to employer.

        Claimant testified that the condition of his left knee got

better after each fall, but then worsened again each time he

fell.    He admitted he continued to work full-duty after August

22, 2000, but that he had stiffness in his knee.    He also

admitted he did not seek medical treatment for his left knee

until September 2001.    He claimed he did not seek medical

attention until September 2001 because he did not have medical

insurance until August 2001.

        Claimant testified that he reported the August 22, 2000

accident immediately over his two-way radio to Michael McCarron,

his supervisor, and to another supervisor named "John."

Claimant stated that he told McCarron he fell down the ramp and

injured his knee, but that he could finish out the day.

Claimant testified that McCarron told him to use his personal

insurance to obtain treatment.    Claimant also stated that he

mentioned his other accidents to his supervisors.
                              - 3 -
     McCarron, employer's owner, testified that he spoke with

claimant on a daily basis in August 2000.   However, he had no

knowledge that claimant was alleging an August 22, 2000 accident

until he was served with documentation from the commission after

claimant filed his Claim for Benefits on September 24, 2001.

McCarron denied having any conversations with claimant before

September 24, 2001, related to him sustaining a knee injury at

work in August 2000.   McCarron denied requiring employees to use

their personal insurance for work accidents.   McCarron confirmed

that claimant continued to work his regular schedule between

August 2000 and the date of the hearing.    McCarron denied that

claimant ever complained to him of any knee problems since

August 2000.   McCarron denied having any conversations with

claimant after August 22, 2000, regarding the condition of the

ramp or regarding other employees falling on the ramp.

According to McCarron, employer replaced the ramp at the end of

March 2001.

     On September 17, 2001, Dr. Nassar Tahmassebi examined

claimant.   Claimant reported left knee pain of a nine-month

duration.   Dr. Tahmassebi reported as follows:   "Had fall over

the L knee at work."   In a March 19, 2002 Attending Physician's

Report, Dr. Tahmassebi indicated that claimant "slipped on ramp

attached to rear of work vehicle" on August 22, 2000, but that

his left knee pain had only been going on for nine months.

Dr. Tahmassebi diagnosed a contusion of the left knee.
                              - 4 -
Dr. Tahmassebi referred claimant to Dr. Edward Alexander, an

orthopedist.

     Dr. Alexander, who first examined claimant on November 20,

2001, recorded a history of claimant twisting his knee in a

trailer while working on a truck unloading equipment

"approximately a year-and-a-quarter ago."   Dr. Alexander

recommended that claimant undergo an MRI.   The MRI showed no

evidence of meniscal or ligamentous tears, though it did show a

small cyst.    Dr. Alexander did not believe the cyst was of any

significance, but ordered a bone scan.   The bone scan showed

normal activity in the left distal femur, and Dr. Alexander

opined that the cyst was not related to claimant's injury.    The

bone scan also showed degenerative changes over the medial

compartment of the left knee, which Dr. Alexander believed were

related to the August 22, 2000 incident.    Dr. Alexander

recommended a course of mild anti-inflammatory medications.

     In affirming the deputy commissioner's decision denying

claimant's claim for benefits, the commission found as follows:

          [W]e find that the claimant failed to prove
          that he suffered an injury to his left knee
          as the result of a particular "accident."
          The claimant, himself, acknowledges that he
          fell and injured his knee on numerous
          occasions from August 22, 2000, through
          April 19, 2001, and it is unclear from the
          medical records whether the claimant ever
          mentioned these additional falls to his
          physicians. Furthermore, the claimant did
          not seek medical attention for his knee
          until September 17, 2001, more than a year
          after the date that he supposedly first fell
                              - 5 -
          on the ramp. Under the circumstances, we
          agree with the Deputy Commissioner's
          conclusion that the claimant failed to
          prove, by a preponderance of the evidence,
          that he suffered an injury by accident, on
          any particular date, arising out of and in
          the course of his employment.

     Claimant was required to prove by a preponderance of the

evidence that he sustained "'an "identifiable incident that

occur[red] at some reasonably definite time," which . . .

cause[d] . . . "an obvious sudden mechanical or structural

change in the body."'"   Seven-Up Bottling Co. v. Moseley, 230

Va. 245, 247, 335 S.E.2d 272, 274 (1985) (citations omitted).

In light of McCarron's testimony denying that claimant ever

reported an August 22, 2000 accident; claimant's admission that

he only felt as if he bumped his knee on August 22, 2000; his

acknowledgment that he fell on numerous unidentified occasions

between August 22, 2000 and April 19, 2001; the approximately

one-year delay in his seeking medical treatment; his failure to

mention his alleged other falls to his physicians; and

Dr. Tahmassebi's initial notation of a fall nine months before

September 17, 2001, the commission, as fact finder, could

reasonably conclude that claimant failed to prove he sustained

an identifiable incident occurring at some reasonably definite

time, which resulted in an obvious sudden mechanical or

structural change in his body.

     Based upon this record, we cannot find as a matter of law

that claimant's evidence was sufficient to sustain his burden of
                                 - 6 -
proof.   Accordingly, the commission's findings are binding and

conclusive upon us.

     The sole issue addressed by the commission in its decision

was whether claimant proved he sustained an injury by accident

arising out of and in the course of his employment.   Our

decision on that issue is dispositive of this appeal.

Therefore, we decline to address the remaining questions raised

by claimant.

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

                                                            Affirmed.




                               - 7 -
