                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Coleman, Annunziata and Senior Judge Cole


JAMES H. MEADOWS
                                             MEMORANDUM OPINION*
v.   Record No. 1306-00-3                         PER CURIAM
                                               OCTOBER 10, 2000
BEAR RIDGE MINING, INC.,
 LIBERTY MUTUAL INSURANCE COMPANY, AND
 AMERICAN INTERNATIONAL SOUTH INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Gerald F. Sharp, on brief), for appellant.

             (John C. Johnson; Catherine I. Henritze;
             Frith, Anderson & Peake, P.C., on brief), for
             appellees Bear Ridge Mining, Inc. and
             Liberty Mutual Insurance Company.

             (S. Vernon Priddy, III; Sands, Anderson,
             Marks & Miller, on brief), for appellees
             Bear Ridge Mining, Inc. and American
             International South Insurance Company.


     James H. Meadows (claimant) contends that the Workers'

Compensation Commission erred in finding that he failed to prove

that he sustained an injury by accident arising out of and in

the course of his employment on September 15, 1998, or in the

alternative, that he sustained a change-in-condition on

September 15, 1998 causally related to his compensable March 26,

1997 injury by accident.     Upon reviewing the record and the

briefs of the parties, we conclude that this appeal is without

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
merit.   Accordingly, we summarily affirm the commission's

decision.     See Rule 5A:27.

                          Injury by Accident

     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 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).

     The commission ruled that claimant's evidence failed to

prove that he sustained an obvious sudden mechanical or

structural change in his body as a result of the September 15,

1998 incident.    In so ruling, the commission found as follows:

                  The only evidence tending to establish
             that the claimant suffered a sudden
             mechanical or structural change on September
             15, 1998, is the claimant's testimony that
             he was "jerked" by the rub rail when it came
             of [sic] its hinges, that it "hurt" him in
             his back and that he felt different
             afterwards, with increasing pain.


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               The medical evidence does not support
          the claimant's testimony, however. As to
          direct evidence of a sudden structural or
          mechanical change we have only Dr. [Alain]
          Desy's opinion. Dr. Desy clearly and
          unequivocally opines that the claimant did
          not suffer a structural or mechanical change
          as a result of the incident on September 15,
          1998. Dr. Desy based his opinion largely
          upon the fact that imaging of the claimant's
          lumbar spine has remained unchanged since
          his 1994 accident, and the lack of objective
          evidence to support the claimant's ongoing
          claim of disability.

               Dr. [Emile] Khuri did not directly
          address the question of structural or
          mechanical change, and seems to attribute
          the claimant's medical disability to an
          aggravation of undetermined preexisting back
          problems. Dr. Khuri opined that the
          claimant's current disability was related to
          the September 15, 1998, injury, as it "most
          probably" aggravated his "back situation."
          Dr. Khuri noted that claimant's unspecified
          previous back pain and injury, and opined
          that lifting the rub rail "could have"
          aggravated his back problem.

               The medical evidence, taken as a whole,
          does not suggest that the claimant suffered
          a sudden structural or mechanical change
          either. The claimant has undergone
          extensive radiographic and MRI imaging since
          at least 1994, when he was treated for
          another low back injury. Since that time,
          each successive set of images has been
          compared to the previous set in an attempt
          to determine what is causing the claimant's
          condition. Without dispute, each of the
          claimant's physicians has noted that the
          claimant's lumbar spine has shown no change
          during the intervening period.

     In light of the opinions of Drs. Desy and Khuri, coupled

with the lack of any objective medical evidence establishing a

mechanical or structural change in claimant's back after the

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September 15, 1998 incident, the commission, as fact finder, was

entitled to weigh the medical evidence against claimant's

testimony and to conclude that claimant failed to prove he

sustained a new injury by accident on September 15, 1998.      Based

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

claimant's evidence sustained his burden of proof.

                         Change-in-Condition

     "General principles of workman's compensation law provide

that '[i]n an application for review of any award on the ground of

change in condition, the burden is on the party alleging such

change to prove his allegations by a preponderance of the

evidence.'"    Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459,

464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight Carriers,

Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572

(1986)).   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.     See Tomko, 210 Va. at 699,

173 S.E.2d at 835.

     The commission ruled that although claimant had proven a

change in his capacity to work after the September 15, 1998

incident, he failed to prove that such change resulted from a

condition causally related to his March 26, 1997 compensable

back injury.    In so ruling, the commission found as follows:

           [Claimant] has suffered low back pain since
           1987, and has required treatment for such
           problems in 1987, 1989, 1991, and 1994,

                                - 4 -
           prior to his March 26, 1997, accident.
           Since March 26, 1997, but prior to the
           alleged aggravation on September 15, 1998,
           the claimant has had at least one other low
           back injury that required treatment and the
           imposition of medical restrictions. The
           claimant himself testified that he has had
           ongoing problems with his back, and that
           working in the mines gives you back trouble
           "most of the time."

                . . . Dr. Khuri opined that the
           claimant's injury was related to the
           September 15, 1998, accident. However, he
           qualified his opinion by stating that the
           September, 1998, injury "most probably"
           aggravated "his back situation" from
           "previous back injuries." He also stated
           that lifting the rub rail "could have"
           aggravated the claimant's back problem.
           Despite being given the opportunity to do
           so, Dr. Khuri did not directly attribute the
           claimant's disability to the March 26, 1997,
           accident. Considering the claimant's
           extensive history of prior back problems,
           Dr. Khuri's vague opinion that the September
           15, 1998, injury "could have" aggravated his
           "back situation" or "previous back
           injuries," clearly encompasses any previous
           low back injuries, both compensable and
           non-compensable, from 1987 to 1998.

                Though Dr. Desy opined that the
           claimant's low back problems were "more
           probably" related to the March 26, 1997,
           injury, he qualified his opinion by stating
           that the claimant's problems could have been
           related to his accident in 1994, or an
           aggravation of a pre-existing condition of
           unknown origin. He believed that the
           claimant's problems stemmed from "repeated
           injury" at work, and stated that it was
           "impossible to determine" which event was
           the initial injury.

     The commission's findings are amply supported by the

record.   In light of the lack of any persuasive medical opinion



                               - 5 -
directly linking claimant's change in his capacity to work after

September 15, 1998 to his compensable March 26, 1997 injury by

accident, we cannot find as a matter of law that claimant's

evidence sustained his burden of proof.

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

                                                        Affirmed.




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