                   COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Bumgardner and Frank
Argued at Chesapeake, Virginia


VIRGINIA EQUIPMENT DEVELOPMENT AND
 WCAMC CONTRACTOR'S GROUP
 SELF-INSURANCE ASSOCIATION
                                        MEMORANDUM OPINION* BY
v.   Record No. 0928-01-1                JUDGE ROBERT P. FRANK
                                           FEBRUARY 12, 2002
GLENN ANTHONY HINEBAUGH


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Iris W. Redmond (Midkiff, Muncie & Ross, on
          briefs), for appellants.

          John H. Klein (Montagna, Breit, Klein &
          Camden, on brief), for appellee.


     Virginia Equipment Development and WCAMC Contractors Group

Self-Insurance Association (employer) contend that the Workers'

Compensation Commission (commission) erred in awarding benefits

to Glenn A. Hinebaugh (claimant) by finding (1) claimant

suffered an injury by accident arising out of and in the course

of his employment; (2) claimant's current disability and medical

condition was caused by the injury of March 31, 2000; (3)

claimant's period of disability was supported by the evidence.

For the reasons that follow, we affirm the commission's award.




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

     On or about March 31, 2000, claimant was working for

employer as a pipe layer on a job in the Pembroke area of

Virginia Beach.   Claimant, in a bent position, had been breaking

into a catch basin with a two-pound maul (sledgehammer) for two

to three hours.   Claimant testified that after he had hammered a

hole big enough to insert a pipe, "I got up from beating it and

went over to grab a pipe and as I started to walk towards the

ditch to get the pipe, I got a real tingling and a numbness in

my back."   He also testified, "[B]efore I could get to the pipe,

my back went out."   On further questioning by the deputy

commissioner, claimant explained he was walking down the ditch

to grab the pipe and, "[a]s soon as I started to head for the

pipe, that's when my back went out," adding, "[i]t felt like a

little jolt in my back and then just numbness."

     As a result of this back pain, claimant testified he fell

to the ground and his co-worker, Roy Dixon, had to assist him

out of the ditch and lay him down on the bank.

     Claimant's medical history prior to March 31, 2000,

indicated claimant went to Patient First on May 17, 1995,

complaining of an "acute injury to his lower back [that

occurred] while working construction on a jack hammer that got

stuck."   At that time, he complained of pain radiating into his

right thigh.   He was diagnosed as having "lumbar strain."     No

neurological dysfunction was noted.    Patient First records

                               - 2 -
indicated claimant was "symptomatically pain-free [and] ha[d]

already gone back to work" on May 31, 1995.     On August 9, 1996,

claimant presented to Patient First again, complaining of back

pain caused by "lifting [a lot] of concrete and doing some

shoveling."    Again, "lumbar strain" was the diagnosis.    On

August 23, 1996, his symptoms improved, and he was released to

regular duty.

        On February 25, 1999, claimant presented to Patient First

with complaints of "several years of lower back pain but over

the past six months the pain has been getting worse with

radiation of pain and paresthesia, numbness to his lateral and

posterior thighs down to his knee."      At that time, the diagnosis

was "low back pain."    On March 4, 1999, claimant's symptoms

continued, and it was noted that the paresthesia was "especially

[on] his right."

        Claimant was examined for the current injury on April 14,

2000.    Dr. Colin Hamilton, an orthopaedist, noted that claimant

presented with a "5+ year history of recurrent low back pain

with occasional radicular symptoms down both the right and left

lower extremities, in the past, more frequently in the right

lower extremity."    Dr. Hamilton then noted that "his current

episodes occurred about two weeks ago.     He recalls using a brick

hammer while at work and having recurrent low back pain."        He

noted radiating pain bilaterally into claimant's buttocks and

down his left leg.    Dr. Hamilton diagnosed a left-sided

                                 - 3 -
herniated disc.   Claimant testified he had indicated to

Dr. Hamilton that his back hurt almost constantly since his 1995

injury.   However, Dr. Hamilton's office notes indicate claimant

referred to "intermittent" symptoms.

     On April 26, 2000, Dr. Hamilton noted the following:

"Considering that he sustained a work injury in 1995 and has

never had more than a couple of months elapse without

significant low back pain since then, it seems reasonable to

relate his present pain syndrome, which includes sciatica, to

that injury."

     Dr. Hamilton indicated on the same date: "Has a herniated

lumbar disc on left.   Has had persistent LBP since injury at

work 1995."   Claimant was scheduled for surgery.   His "History

and Physical Examination Report" for that surgery states a

"History of Present Illness" as:   "5 yo [(year old)] hx

[(history)] of back pain [with] radiculopathy.   Inj. using a

jackhammer in 1995."

     The MRI, performed on May 15, 2000, indicated "an

extra-forarninal herniated nucleus pulposus at L5-S1 on the left

side."    On May 17, 2000, Dr. Hamilton learned that coverage for

the surgery was denied by the carrier.   On June 7, 2000,

Dr. Hamilton indicated claimant had "a herniated L-5 disc[,]

related to his work injury 3/31/00."

     When claimant initially saw Dr. Hamilton on April 14, 2000,

claimant indicated he had been unable to work for the two weeks

                                - 4 -
since the injury.    Dr. Hamilton, on April 26 and May 17, 2000,

indicated claimant was unable to work.    The doctor's next

notation concerning claimant's ability to work was his report of

September 1, 2000, in which he released claimant to light duty.

     The deputy commissioner found claimant had established an

injury by accident on March 31, 2000.    The deputy further found

claimant's disability was causally related to the March 31, 2000

accident and awarded claimant temporary total disability through

September 5, 2000.   From this opinion, employer requested review

before the full commission.

     By opinion dated March 9, 2001, the full commission

affirmed the deputy's opinion, awarding temporary total benefits

from April 14, 2000, through September 5, 2000.   The commission

described claimant's work as bending over and "breaking into a

'catch basin' with a two-pound hammer."   The commission recited

claimant's testimony that "once the hole was 'big enough to

where we could put the pipe in,' he went to pick up a piece of

pipe and 'felt like a little jolt in my back and then just

numbness and my legs went out.'" 1



     1
       This description of events that led to the injury is
somewhat abbreviated and may lead to a misunderstanding of the
commission's ruling. The facts are that claimant had been
breaking into a catch basin with a two-pound sledgehammer.
After he hammered a hole large enough to insert a pipe, he got
up to walk over and grab a pipe. As he started to walk to the
ditch, his back "went out," and he felt a "jolt" in his back,
followed by numbness.


                                - 5 -
                              Analysis

                      I.   Injury by Accident

     Employer argues the evidence did not establish an injury by

accident.   Employer contends claimant failed to identify any

particularity in time or place, a sudden precipitating event, or

mechanical change to his body.    Claimant's injury, employer

maintains, was the result of cumulative trauma or simply an

ongoing condition caused by his prior injury. 2

     We review the evidence in the light most favorable to

claimant, the party prevailing below.       Goodyear Tire & Rubber

Co. v. Harris, 35 Va. App. 162, 165, 543 S.E.2d 619, 620 (2001).

     To support an award under the Workers' Compensation Act,

the commission must find "(1) an 'injury by accident' or

occupational disease, (2) arising out of, and (3) in the course

of, the employment" of a claimant.       Morris v. Morris, 238 Va.

578, 584, 385 S.E.2d 858, 862 (1989).

     To establish 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."       Id. at



     2
       In employer's brief, he restricted his argument to "injury
by accident." However, at oral argument, employer expanded this
argument to include whether the injury arose out of claimant's
employment. We will not consider this argument as it was not
presented in employer's brief. See Buchanan v. Buchanan, 14 Va.
App. 53, 56, 415 S.E.2d 237, 239 (1992).


                                 - 6 -
589, 385 S.E.2d at 865 (emphasis in original).    The sudden

precipitating event:

             is one that "immediately" causes an injury,
             as distinguished from an injury that appears
             or occurs gradually. See Stenrich Group v.
             Jemmott, 251 Va. 186, 467 S.E.2d 795 (1996).
             However, an injury or injuries may be caused
             by one or several "sudden (or immediate)
             events" that cause the mechanical changes to
             occur in the body.

R & R Constr. Corp. v. Hill, 25 Va. App. 376, 379, 488 S.E.2d

663, 664 (1997).     See also Southern Express v. Green, 257 Va.

181, 189, 509 S.E.2d 836, 841 (1999).

       "[The] pain does not have to be contemporaneous with the

accident."     Ratliff v. Rocco Farm Foods, 16 Va. App. 234, 239,

429 S.E.2d 39, 42 (1993).    However, "injury by accident" does

not include "cases in which the injury is gradually incurred or

incurred at an unknown time."     Manassas Ice & Fuel Co. v.

Farrar, 13 Va. App. 227, 232, 409 S.E.2d 824, 828 (1991).

       This issue is a mixed question of fact and law; therefore,

this Court defers to the commission's factual findings on injury

by accident but reviews the final determination de novo.

Goodyear Tire & Rubber Co., 35 Va. App. at 167-68, 543 S.E.2d at

621.

       Although employer argues the evidence did not support a

finding of a particular incident causing the injury, we find the

evidence sufficient to prove the injury to claimant's back




                                 - 7 -
occurred at a particular time and place as a result of a

specific incident.

         Claimant was bending over and swinging a two-pound hammer

for approximately two to three hours.    When he concluded the

task, he stood up and began to walk toward a piece of pipe.

However, as he started to walk, he felt a sudden "jolt"

accompanied by numbness.

     Claimant did not gradually develop this back pain.     He

suddenly felt the "jolt" after standing up and beginning to

walk, after swinging a two-pound hammer in a bent-over position

for several hours on March 31, 2000.     The injury resulted from

this single identifiable incident "on a definite occasion during

the performance of a specific piece of work."     Southern Express,

257 Va. at 189, 509 S.E.2d at 841.

     Despite the commission's abbreviated factual findings, the

facts in the record show an identifiable, precipitating event

for proving injury by accident.     We find the evidence supports

the commission's determination. 3




     3
       Even if the commission made an incorrect finding of fact,
we still may affirm their conclusion. See Mercy Tidewater
Ambulance Serv. v. Carpenter, 29 Va. App. 218, 226, 511 S.E.2d
418, 422 (1999) (an appellate court can affirm a correct
conclusion of a lower court even though that decision was made
for the wrong reasons).


                                 - 8 -
                            II.    Causation

     Employer next contends claimant failed to prove his injury

was caused by the accident of March 31, 2000, rather than the

result of his pre-existing injury or of cumulative trauma.

     "Causation is a factual determination to be made by the

commission, but the standards required to prove causation and

whether the evidence is sufficient to meet those standards are

legal issues" which this Court reviews de novo.         Hercules, Inc.

v. Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 188 (1991).

     The evidence here is sufficient to support the commission's

finding of causation.    Claimant testified he was able to perform

his job, clearly uninjured, prior to his attempt to stand up and

walk over to the pipe.   In addition, the medical evidence,

although inconsistent, concluded after reviewing all of

claimant's tests, including his MRI, that the herniated disc was

caused by the accident at work on March 31, 2000.        As the

commission's finding is supported by credible evidence, we will

not disturb it on appeal.    Id.

     Employer's contentions address the weight that should have

been afforded claimant's evidence.         Employer suggests

Dr. Hamilton did not make his causation determination based on

the medical evidence, but instead to insure claimant's operation

was covered by employer.    The commission determined the

credibility of the witnesses and evidence and found the doctor's

final conclusion of causation credible.        We will not disturb

                                   - 9 -
this finding on appeal.     Marriott Int'l, Inc. v. Carter, 34 Va.

App. 209, 215-16, 539 S.E.2d 738, 741 (2001).

        Employer also argues Hinebaugh simply aggravated an old

injury on March 31, 2000 and, therefore, the injury actually was

created by an earlier event.    The law and the evidence do not

support employer's interpretation of events.

        Workers need not be "injury free" to receive compensation.

If a pre-existing condition is exacerbated or aggravated by an

industrial accident, the resulting disability is compensable.

Corning, Inc. v. Testerman, 25 Va. App. 332, 339, 488 S.E.2d

642, 645 (1997).    For example, in Goodyear Tire & Rubber Co.,

this Court affirmed the award of compensation to a claimant who

had arthritis and a degenerative knee condition prior to

sustaining an aggravating inner knee injury while disengaging

fabric from a machine.    35 Va. App. at 171, 543 S.E.2d at 623.

        Here, the evidence indicated Hinebaugh had a pre-existing

problem with his back.    However, he did not have a left-side

herniated disc at L5-S1 until after the accident on March 31,

2000.    Although employer contends the medical evidence proved

this injury already existed, the commission found the previous

injury was to the right side.    Given the May 1995 medical record

clearly rules out a left back injury and the 1999 medical record

finds the L5-S1 disc space "WNL" (within normal limits), we find

that the evidence supports the commission's finding.



                                - 10 -
                      III.   Period of Disability

     Finally, employer contends the medical evidence did not

support the commission's determination that claimant was totally

disabled between April 26, 2000 and September 5, 2000.

     On April 26, 2000, and May 17, 2000, Dr. Hamilton noted

Hinebaugh "obviously cannot work," and he recommended surgery.

He also noted the need for surgery in May 2000.     In September,

the doctor, for the first time since March, released his patient

for light-duty.

     The commission was entitled to infer from this evidence

that Hinebaugh was unable to work from the point he began

receiving medical care until the doctor released him to light

duty work.    We cannot, as a matter of law, reverse this factual

finding.     Webb v. Eastern Airlines, 1 Va. App. 421, 423, 339

S.E.2d 563, 564 (1986).

     For the reasons stated, we affirm the award of the

commission.

                                                           Affirmed.




                                 - 11 -
