                       COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia


SOUTHSIDE VIRGINIA TRAINING CENTER/
 COMMONWEALTH OF VIRGINIA
                                          MEMORANDUM OPINION * BY
v.   Record No. 2898-98-2                 JUDGE DONALD W. LEMONS
                                             JANUARY 11, 2000
KIMBERLY RENEE JONES


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          (Mark L. Earley, Attorney General; Gregory E.
          Lucyk, Senior Assistant Attorney General;
          Edward M. Macon, Assistant Attorney General,
          on briefs), for appellant. Appellant
          submitting on briefs.

          (Zenobia J. Peoples, on brief), for appellee.



     Southside Virginia Training Center ("SVTC") appeals from an

award by the Worker's Compensation Commission granting

Kimberly R. Jones benefits for temporary partial disability and

temporary total disability.   SVTC contends:   (1) the commission

erroneously found that Jones' back injury was caused by a

work-related accident on May 29, 1996; and (2) the commission

failed to determine when SVTC received notice of the claimed

accident and whether SVTC is liable for medical expenses

incurred before June 13, 1996.


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     Jones was employed by SVTC as a human services care worker.

She testified before Deputy Commissioner Herring that on

May 29, 1996, while attempting to lift a patient from the

toilet, she experienced a sharp pain in her back.    Jones

testified that she could barely move the next morning, but went

to work anyway.   She stayed at work that day, after calling her

doctor for an appointment.    She was given June 11, 1996 as the

first available appointment date.    Jones' supervisor, Virginia

Vaughn, testified that Jones never complained of any back injury

or problems to her prior to June 13.     Jones claims she reported

the incident on the morning of May 30 to a supervisor, Ms.

Beckett.

     Before she saw her doctor on June 11, Jones was seen on

June 4 and June 7 at the Southside Regional Medical Center

Emergency Department.     During her June 4 visit, Jones complained

of "off/on" lower back pain, non-radiating, worse in the last

two days with "NKDA." 1   When discharged, she reported no acute

distress.

     During the June 7 visit, Jones complained of muscle aches

on both sides of her back.    Jones was diagnosed with

musculo-skeletal low back pain and it was noted that she had an


     1
       There is some confusion as to what "NKDA" means. In
appellant's opening brief and appellee's brief and in the
Commissioner's interim opinion, it is defined as "No Known Date
of Accident." However, appellant's reply brief suggests it may
mean "No Known Drug Allergy."


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appointment with Dr. Thigpen on June 10, 1996.    SVTC claims and

the deputy commissioner found that the doctor's notes of the

June 7 visit say, "does fair amt of lift @ work @ SVTC."

According to Jones and the full commission, the notes say, "does

[illegible] onset af[ter] lift @ work @ SVTC."    Both parties and

both the full commission and the deputy commissioner agree that

the notes immediately preceding that statement say, "recalls no

specific event or injury".

     On June 17, 1996, Dr. David Haines, an orthopedic surgeon,

examined Jones.   He recites the patient's history that she

"[w]as lifting a client off a toilet when she felt sudden severe

pain in the back . . . ."    A lumbosacral strain was diagnosed,

and continuing disability was noted.    Jones began physical

therapy on June 20, 1996 with Dr. Haines.    An Attending

Physician's Report of June 21, 1996 notes that the claimant's

back strain was caused by the history of injury while lifting a

client.   This report was typed after Jones filled out a form

that same day describing the event.     Jones was released to light

duty with a fifteen-pound lifting restriction on June 27, 1996,

and this continued until July 3, 1996.

     On July 18, 1996, Jones gave a recorded statement to

Kristie McClaren.   Jones claimed that the accident occurred on

June 3.   Jones was asked what time of day the incident occurred

since that was not filled in on the Report of Accident.     Jones

claimed it was after breakfast.   Jones also claimed that she had

                                - 3 -
been having problems with her back for months and that the pain

from her alleged accident was no different from what she had

experienced in the past.

     Dr. Haines, in his Attending Physician's Report of July 19,

1996, noted the lumbosacral strain and right arm and cervical

complaints, all of which he indicated were caused by the lifting

incident on June 3, 1996.    Jones' lifting restriction was

increased to twenty-five pounds on July 24, 1996.     On August 16,

1996, this lifting limit was decreased to fifteen pounds.

     At a hearing before Deputy Commission Herring on

November 22, 1996, Jones contended for the first time that her

accident occurred on May 29, and not on June 3.     When asked

about the discrepancy between the injury date of May 29 and

June 3, Jones first testified that she told McClaren the

accident did not happen on June 3.      She later testified that she

"assumed [McClaren] was going along with the date that was on

the incident form . . . ."

     Also at the November 22 hearing, Jones testified that the

alleged accident occurred before breakfast, again in

contradiction to her July 18 statement to McClaren.     Jones

testified further that she felt a similar tightness or pressure

in her back prior to the incident and that she was feeling the

strain each time she lifted.   However, Jones testified that,

when she put the client back on the toilet seat, the pain went



                                - 4 -
away and she thought this was the same pain or pressure she

experienced previously.

     Based on medical histories of June 4 and 7 inconsistent

with her testimony and prior statements, and the history of back

pain dating several months before the date of this alleged

accident, the deputy commissioner found no compensable injury

and declined to issue an award, finding that the "bulk of the

credible evidence does not support the claim."   The deputy

commissioner explained that injury resulting from cumulative

trauma caused by physical exertion inherent in the employee's

work is not "an injury by accident" compensable under the

Workers' Compensation Act.

     Jones appealed the deputy commissioner's decision to the

full commission.   In an "interim" decision, the commission found

that Jones' "credible testimony, recorded statement, and medical

histories [were] all consistent commencing with June 17, 1996,"

and that the evidence established an injury by accident

occurring on May 29, 1996 that resulted in total disability from

June 3 through June 30, 1996.   The commission remanded the case

to the hearing docket for the taking of evidence regarding

Jones' efforts to find light work within her medical

restrictions after June 30, 1996.   Upon remand, the deputy

commissioner concluded that Jones had reasonably marketed her

residual work capacity and entered an award.



                                - 5 -
     SVTC appealed the decision to the full commission, again

claiming that Jones did not sustain an injury by accident

arising out of and in the course of employment.   In an opinion

dated December 8, 1998, the commission concluded that its

July 9, 1997 interim opinion was correct stating, "We therefore

AFFIRM that opinion, and adopt it as our own."    From this

decision and award SVTC appeals.

     To establish a prima facie claim for compensation for an

"injury by accident" arising out of and in the course of the

employment, the claimant must prove, by a preponderance of the

evidence, (1) an identifiable incident, (2) that occurred at

some reasonably definite time, (3) with an obvious, sudden

mechanical or structural change in the body, and (4) a causal

connection between the incident and the bodily change.    See Code

§ 65.2-101; Chesterfield County v. Dunn, 9 Va. App. 475, 476,

389 S.E.2d 180, 181 (1990); Aistrop v. Blue Diamond Coal Co.,

Inc., 181 Va. 287, 293, 24 S.E.2d 546, 548 (1943).    "[A]n injury

resulting from cumulative trauma caused by physical exertions

inherent in the employee's normal work is not an 'injury by

accident,' compensable under the Worker's Compensation Act."

Kraft Dairy Group, Inc. v. Bernardini, 229 Va. 253, 256, 329

S.E.2d 46, 48 (1985).

     The commission erroneously states that the medical records

commence with June 7, 1996.   The record clearly reveals that the

claimant visited the emergency room at Southside Regional

                               - 6 -
Medical Center on June 4, 1996, and the report of the visit was

before the commission.   In the notes, which appear to be a

partial history, there is no recitation of any incident,

accident or event which the patient claims serves as the basis

for her physical complaints.   Additionally, there is a notation,

"NKDA" which SVTC and the deputy commissioner contend means "no

known date of accident."   The majority opinion made no reference

to the notation, presumably because it was ignored entirely, a

fact confirmed by the majority's conclusion that the medical

records commence with June 7, 1996, obviously excluding the June

4, 1996 record.

     Additionally, the majority opinion finds that the medical

records of June 7, 1996 are "ambiguous" and interprets the

doctor's notes as saying the claimant "recalls no specific event

or injury -- does [illegible] onset af[ter] lift @ work @

SVTC. . . ."   The record is before us in the same form in which

it was received by the commission.     A determination of what the

record says was not augmented by any other evidence.    We find

nothing ambiguous about the words "recalls no specific event or

injury."   Furthermore, we find that the note says "recalls no

specific event or injury -- does fair amt. of lift @ work @

SVTC."

     As we have previously stated . . a patient's medical

history:



                               - 7 -
             [I]s admissible to explain the basis of the
             doctor's opinion, or to impeach (as with a
             prior inconsistent statement), or to
             corroborate (as with a prior consistent
             statement) the claimant's testimony. Also,
             if a claimant has given a history that
             negates the hearing proof of a compensable
             injury, then such history would constitute
             an admission by a party, admissible when
             offered by an adverse party as an exception
             to the hearsay rule.

McMurphy Coal Co. v. Miller, 20 Va. App. 57, 59, 455 S.E.2d 265,

266 (1995) (citation omitted).

     As in McMurphy, the commission in this case "should have

considered the medical histories . . . because the histories

contradicted [Jones'] hearing testimony of how the accident

occurred."     Id. at 59, 455 S.E.2d at 267.   As in McMurphy, "[b]y

failing to consider these statements, the commission ignored

relevant evidence that supported the appellant['s] position and,

when coupled with other evidence, this action may have affected

the outcome of this case."     Id. at 60, 455 S.E.2d 267 (emphasis

in original).

     For this reason, we remand this case for review by the

commission so it may properly consider all relevant evidence

necessary to determine whether Jones proved by a preponderance

of evidence that she sustained a compensable injury.       Upon

remand, if the commission finds upon review of all of the

evidence that the injury is compensable, the commission is

directed to make findings concerning notice to employer of the



                                 - 8 -
claimed accident and whether employer is responsible for all of

the claimed medical expenses.

                                           Reversed and remanded.




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