                     COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and McClanahan
Argued at Chesapeake, Virginia


RUTH DEARD
                                        MEMORANDUM OPINION* BY
v.   Record No. 3276-02-1           JUDGE ELIZABETH A. McCLANAHAN
                                            AUGUST 12, 2003
RIVERSIDE REGIONAL MEDICAL CENTER AND
 RECIPROCAL OF AMERICA


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             W. Mark Broadwell (Forbes & Broadwell,
             on brief), for appellant.

             Karen A. Gould (Gould, Redmond & Russell,
             on brief), for appellees.


      Ruth Deard (claimant) appeals from a decision of the

Virginia Workers' Compensation Commission denying her claim for

benefits.    Claimant contends that the commission erred in

finding that she failed to prove the occurrence of an injury by

accident on September 18, 2000, October 19, 2000 or February 1,

2001. 1   For the reasons that follow, we affirm the decision of

the commission.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
      1
       The claim with regard to the September 18, 2000 date was
abandoned by claimant's counsel at hearing.
                           I.   BACKGROUND

       Claimant, who worked as a medical records clerk for

employer, had a longstanding history of asthma symptoms.     She

stated, however, that until 1998 she had only "moderate" asthma

symptoms, occurring approximately four times per year.   She

maintained that in 1998, she suffered a "severe asthma attack"

during the renovation of her workspace, resulting in treatment

at an emergency room.   Doctor's records show that claimant also

suffered attacks outside of work, including one incident after

walking her dog and another following a walk across a parking

lot.   Claimant smoked approximately 15 cigarettes per day from

age 25 to 50.

       Claimant alleged that exposure to specific substances at

employer's place of business exacerbated her symptoms.   One

incident occurred on October 19, 2000, when spray cleaner used

on a nearby desk caused claimant to have difficulty breathing,

tightening in her throat, shortness of breath, and a tightening

of her chest.   She subsequently received treatment at an

emergency room.

       Another incident, which occurred on February 1, 2001, took

place shortly after claimant arrived at work.   A brown substance

on the floor, that claimant later learned was ceiling tile dust,

caused her to wheeze and experience a tightening of the chest.

She received treatment at an emergency room and was admitted to

the hospital, where she was treated for five days.
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                              II.    ANALYSIS

     On appeal, the Court views 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).

Unless the Court can say as a matter of law that the claimant's

evidence sustained her burden of proof, the commission's

findings are binding and conclusive.      Tomko v. Michael's

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

"Factual findings by the commission that are supported by

credible evidence are conclusive and binding upon this Court on

appeal."    So. Iron Works, Inc. v. Wallace, 16 Va. App. 131, 134,

428 S.E.2d 32, 34 (1993).

     The Virginia Workers' Compensation Act sets forth the

circumstances under which a covered employee can receive

benefits.   The test of compensability is that the injury must

have arisen "by accident arising out of and in the course of the

employment . . . ."   Code § 65.2-101.    Thus, the analysis is one

of whether claimant sustained an "injury by accident" arising

out of her employment on the two occasions claimed.

     An accident requires some degree of unexpectedness and some

degree of time specificity as to the occurrence of the incident

that gives rise to the injury.      "The definition of accident

generally assented to is an event happening without any human

agency, or, if happening through human agency, an event which,


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under the circumstances, is unusual and not expected by the

person to whom it happens."    Vance on Insurance, 569 (cited in

Big Jack Overall Co. v. Bray, 161 Va. 446, 451-52, 171 S.E. 686,

687 (1933)).

               "The injury, to be regarded as 'by
          accident,' must be received . . . at a
          particular time and in a particular place
          and by a particular accident. And the
          accident must be something the date of which
          can be fixed. It is not enough that the
          injury shall make its appearance suddenly at
          a particular time and upon a particular
          occasion." In other words, the "incident,"
          the act done or condition encountered, "must
          be shown to have occurred at some reasonably
          definite time."
               On the other hand, . . . "injury of
          gradual growth, . . . not the result of some
          particular piece of work done or condition
          encountered on a definite occasion, but
          caused by the cumulative effect of many acts
          done or many exposures to conditions
          prevalent in the work, no one of which can
          be identified as the cause of the harm, is
          definitely excluded from compensation."

Aistrop v. Blue Diamond Coal Co., 181 Va. 287, 293, 24 S.E.2d

546, 548 (1943) (citation omitted).

     The employee must identify exactly what she was doing at

the time she was injured, identify that the action actually

caused her claimed injury at that reasonably definite time, and

that the injury itself occurred at a specific time.    Kraft Dairy

Group, Inc. v. Bernardini, 229 Va. 253, 329 S.E.2d 46 (1985).

Proof is required of an "accident, identifiable incident or

sudden precipitating event."    Lane Co. v. Saunders, 229 Va. 196,


                                - 4 -
199, 326 S.E.2d 702, 704 (1985).   See also Pro-Football, Inc. v.

Uhlenhake, 37 Va. App. 407, 558 S.E.2d 571 (2002) (holding

claimant's knee injury, which the evidence showed was the

cumulative result of playing football over many years, was not

compensable because it was not proven that the knee injury

resulted from a specific identifiable incident).

     The parties in this case stipulated that claimant suffered

from a pre-existing respiratory condition.   The fact that an

employee is predisposed to further injury as a result of a prior

injury will not ordinarily defeat a claim for compensation.     An

employer takes his employee as he finds him, with all of his

infirmities and pre-existing disabilities.   So. Iron Works, 16

Va. App. 131, 428 S.E.2d 32.   However, compensability in these

situations depends on evidence that the accidental injury

materially aggravated or accelerated the pre-existing condition

and, further, that the condition was the direct and immediate

cause of the disability.   Liberty Mut. Ins. Co. v. Money, 174

Va. 50, 4 S.E.2d 739 (1939); Pendleton v. Flippo Constr. Co., 1

Va. App. 381, 339 S.E.2d 210 (1986) (injuries due solely to the

natural progress of pre-existing diseases are not compensable);

Nolan v. Global One Communications, LLP, VWC File No. 191-93-58

(2001) (claimant must prove an identifiable incident caused a

sudden mechanical change or structural bodily change rather than

merely a gradual worsening over a period of time to qualify as


                               - 5 -
an injury by accident); cf. Russell Stover Candies v. Alexander,

30 Va. App. 812, 520 S.E.2d 404 (1999) (affirming the

commission's finding that claimant's benign, pre-existing asthma

was aggravated by exposure to bleach vapor and, therefore, such

aggravation was an injury by accident).   Therefore, the question

in this case is whether claimant met her burden of proof on

causation on the issue of whether she suffered injury by

accident.

     The commission analyzed the medical evidence concerning

each alleged incident, and found that claimant did not satisfy

the burden of proof that she suffered injury by accident on the

dates at issue.   The record shows that five days after the

alleged October 19, 2000 incident, claimant's doctor noted she

suffered an "asthma attack induced at work" sometime in the

previous week.    The commission concluded that claimant suffered

problems due to general environmental triggers and that the

medical evidence did not link claimant's symptoms to any

particular exposure.   Therefore, claimant did not meet the

burden of proof required to support an injury by accident.

     The medical evidence regarding the alleged February 1, 2001

incident includes contemporaneous notes from doctors who treated

claimant with language such as "possibly related," "possibly

associated," "some type of environmental allergen" and

"allergens of unknown etiology."   Such statements indicate that

there was not a clear causal connection between the ceiling dust
                              - 6 -
and claimant's attack.   Accordingly, the commission chose not to

believe the deposition of claimant's family physician,

Dr. Provenzano, who testified that exposures on the claimed

dates aggravated claimant's pre-existing condition and resulted

in a sudden mechanical or structural change to her body.

     The commission found that the facts of this case paralleled

the case of Nolan, VWC File No. 191-93-58, where the medical

evidence showed that the employee had numerous reactions during

the months that preceded the alleged exposure, and was treated

for asthma attacks for some time caused by a "sick building."

The evidence in this case showed that claimant's alleged

exposures in her workplace were not individual accidents, but

were effects of claimant's longstanding asthma, which was not

caused by her work.   The exposures to possible irritants at work

were not particularized any differently than exposures to

substances such as dust at claimant's own home, paint fumes at

her brother's home, exposure to heat and humidity, or dander

from her dog.   The evidence shows that claimant did not

experience an injury by accident by the alleged exposures at her

workplace such that she experienced a sudden mechanical change

or structural bodily change.   Claimant's situation was a

condition that worsened over a period of time, by various

exposures to irritants in different places and, thus, the

claimed exposures at her workplace did not qualify as

compensable injuries by accident.
                              - 7 -
     The commission's findings are supported by credible

evidence.   Therefore, those findings are conclusive and binding

upon this Court, and the Court affirms the commission.

                                                         Affirmed.




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