                     COURT OF APPEALS OF VIRGINIA


Present:    Chief Judge Fitzpatrick, Judge Humphreys and
            Senior Judge Overton


WILLIAM RAY HELFER
                                             MEMORANDUM OPINION*
v.   Record No. 3094-02-2                         PER CURIAM
                                                APRIL 15, 2003
VIRGINIA DEPARTMENT OF
 REHABILITATIVE SERVICES


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Robert L. Flax; Flax & Stout, on briefs),
             for appellant.

             (Jerry W. Kilgore, Attorney General; Judith
             Williams Jagdmann, Deputy Attorney General;
             Edward M. Macon, Senior Assistant Attorney
             General; Scott John Fitzgerald, Assistant
             Attorney General, on brief), for appellee.


     William R. Helfer contends the Workers' Compensation

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

sustained a sudden mechanical change in his body as a result of

an identifiable incident occurring at work on July 26, 1999; and

(2) the determination of the etiology of his groin pain was

necessary to support a finding of a compensable injury by

accident.     Upon reviewing 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.


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

evidence sustained his 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).

        Helfer, a partial quadriplegic since 1988, testified that

on July 26, 1999, while at work, he picked up a three-ring

binder and as he tried to hand it to a co-worker, he felt "a

tearing sensation in [his] groin area."     He dropped the binder

and leaned over in his wheelchair.      Helfer wears a brace, which

allows him to use a three-point finger pinch to pick up an item.

Helfer did not determine the weight of the binder and never

counted its pages.    Helfer testified that he still suffers from

severe groin pain, which he did not suffer from before July 26,

1999.    Helfer's co-worker called his supervisor, Dale Batten,

immediately after the incident.


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        Before July 26, 1999, Helfer had suffered from urinary

tract infections and bladder and bowel problems, as well as

other medical problems related to his 1988 spinal cord injury.

        Helfer's co-worker, Patricia Norton, described the binder

as a "small one" and as an "about a one inch folder," and

testified that it weighed "[p]robably a pound or two."

        Batten testified in her deposition that on July 26, 1999,

she was called to Helfer's office and saw him in his wheelchair

"in severe pain in the lower extremity area."    Helfer told her

he had lifted a binder and felt severe pain.    Batten described

the binder as "about 1 inch."

        On July 26, 1999, Helfer's treating physician, Dr. Gregory

Leghart, diagnosed Helfer as suffering from another urinary

tract infection, "but no other significant pathology."

Dr. Leghart noted that later medical treatment including "[a]n

exhaustive, thorough evaluation . . . never definitively

revealed the true etiology."    Although Dr. Leghart opined that

there was "no doubt in my mind that there was an injury at work

which caused [Helfer's] left groin pain," he did not explain how

the injury occurred nor did he identify any specific groin

injury or any location of any sudden structural or mechanical

change in Helfer's body.    He opined that Helfer sustained an

injury at work based solely upon Helfer's report of increased

pain.


                                - 3 -
     The commission ruled that Helfer failed to prove that his

groin condition was the result of any injury by accident arising

out of and in the course of his employment on July 26, 1999.   In

so ruling, the commission found as follows:

          Although Dr. Leghart opined that there was
          "no doubt" that [Helfer] injured his groin
          at work on July 26, 1999, he also was unable
          to diagnose [Helfer's] problem. We are not
          persuaded by Dr. Leghart's opinion, which
          only states that [Helfer] injured his groin
          but does not reasonably explain what the
          injury was or how it occurred. Although
          Dr. Leghart referred to [Helfer's] condition
          as a groin "strain," it was clear from the
          record that Dr. Leghart was approximating
          [Helfer's] condition based on the failure of
          medical treatment to find a cause for the
          condition.

               We recognize that the evidence was
          strong that [Helfer's] condition was severe
          and disabling. Before the employer is held
          responsible for his condition, however,
          [Helfer] was required to show that the
          condition was caused by an injury by
          accident. The evidence did not show what
          caused his accident, much less that it was
          caused by his employment. We do not believe
          the medical evidence established [Helfer's]
          work as the source of his groin condition.

     "Medical evidence is not necessarily conclusive, but is

subject to the commission's consideration and weighing."

Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401

S.E.2d 213, 215 (1991).   As fact finder, the commission weighed

Dr. Leghart's medical records and opinions, and concluded that

they did not provide sufficient evidence to prove by a

preponderance that Helfer's groin condition was caused by a

                              - 4 -
compensable injury by accident occurring at work on July 26,

1999.       In light of Dr. Leghart's failure to explain the nature

of Helfer's injury and how lifting the one-inch binder caused

the injury, the commission, as fact finder, was entitled to give

little probative weight to his opinion.      In light of the lack of

any persuasive medical evidence to establish that Helfer's groin

condition was caused by an injury by accident arising out of and

in the course of his employment on July 26, 1999, we cannot find

as a matter of law that Helfer sustained his burden of proof.

        In addition, in affirming the deputy commissioner's

decision, the commission necessarily affirmed his finding that

Helfer failed to prove that he sustained an injury by accident

arising out of his employment on July 26, 1999. 1

        Virginia uses the actual risk test to determine whether an

injury arises out of employment.       Vint v. Alleghany Reg'l Hosp.,

32 Va. App. 60, 63, 526 S.E.2d 295, 297 (2000).      "The mere

happening of an accident at the workplace, not caused by any

work related risk or significant work related exertion, is not

compensable."       Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App.


        1
       Helfer argues that by not specifically rejecting the
deputy commissioner's finding that Helfer failed to prove he
sustained an injury by accident arising out of his employment on
July 26, 1999, the full commission necessarily accepted Helfer's
contention. We disagree. Although not specifically addressing
the "arising out of" issue, the commission affirmed the deputy
commissioner's opinion in its entirety. Although Helfer did not
raise the "arising out of" issue as a separate question
presented in his brief, he addressed this issue in the
"Argument" section of his brief.
                              - 5 -
482, 484, 382 S.E.2d 305, 306 (1989).   A claimant must establish

"that the conditions of the workplace or . . . some significant

work related exertion caused the injury."   Id.   Thus, "the

arising out of test excludes 'an injury which comes from a

hazard to which the employee would have been equally exposed

apart from the employment.   The causative danger must be

peculiar to the work, incidental to the character of the

business, and not independent of the master-servant

relationship.'"   Johnson, 237 Va. at 183-84, 376 S.E.2d at 75

(citation omitted).   The commission's decision regarding this

question involves a mixed question of fact and law.    Southside

Virginia Training Ctr. v. Shell, 20 Va. App. 199, 202, 455

S.E.2d 761, 763 (1995).

     Here, no evidence showed that Helfer engaged in any

significant exertion, that his action of handing the one-inch

binder to his co-worker involved any awkward position, and/or

that any condition or hazard peculiar to his workplace caused

his injury.   Accordingly, we affirm the commission's finding

that Helfer failed to prove he sustained an injury by accident

arising out of his employment on July 26, 1999.

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

                                                            Affirmed.




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