                    COURT OF APPEALS OF VIRGINIA


Present: Judge Bray, Senior Judges Duff and Overton
Argued at Alexandria, Virginia


MARIO L. CALVANO, EXECUTOR OF
 THE ESTATE OF MARIANNE STOY-CALVANO
                                          MEMORANDUM OPINION * BY
v.   Record No. 1597-98-4                  JUDGE CHARLES H. DUFF
                                               APRIL 20, 1999
WAL-MART STORES, INC. AND
 INSURANCE COMPANY OF THE
 STATE OF PENNSYLVANIA


         FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

            V.R. Shackelford, III (Shackelford,
            Honenberger, Thomas, Willis & Gregg, on
            brief), for appellant.

            Monica L. Taylor (Melissa Amos Young; Gentry,
            Locke, Rakes & Moore, on brief), for
            appellees.


     Mario L. Calvano, Executor of the Estate of Marianne

Stoy-Calvano ("claimant") appeals a decision of the Workers'

Compensation Commission ("commission") denying her claim for

benefits.    Claimant contends that the commission erred in

finding that she failed to prove that she sustained an injury by

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

May 25, 1997.    Finding no error, we affirm.




     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
     On appeal, we view the evidence in the light most favorable

to the prevailing party below.     See 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 her burden of proof, 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).

     The commission ruled that claimant did not prove that she

was injured as a result of a specific incident at work on May

25, 1997.    As the basis for its decision, the commission made

the following findings:

                  As in Morris, the claimant experienced
             the sudden onset of pain after about two
             hours of continuous rapid-paced work as a
             cashier. Claimant could not recall what
             identifiable incident or action on her part
             occurred at the time she experienced sudden
             pain and there is nothing in the record to
             prove "an identifiable incident or sudden
             precipitating event" as the cause of
             claimant's injury, a rotator cuff tear.
             Although claimant's doctor stated that
             claimant's "history is consistent with a
             rotator cuff tear caused by her accident at



                                  -2-
             work," there is nothing in the medical
             record to indicate the claimant gave a more
             particular description of the events of
             May 25, 1997 to the doctor than she did at
             [sic] hearing. The evidence does not prove
             the claimant suffered "an accident" as that
             term has been defined in the Act . . . .

        In light of claimant's testimony, claimant's recorded

statement, and the medical records, the commission, as fact

finder, could reasonably conclude that claimant was unable to

identify the specific movement or work activity, if any, that

she was performing when she felt the sudden pain on May 25,

1997.    Accordingly, we cannot say as a matter of law that

claimant proved that she sustained an injury caused by an

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

May 25, 1997.

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

                                                           Affirmed.




                                  -3-
