Halmor Corp., etc., et al. v Robert Donald Kelley

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
HALMOR CORPORATION D/B/A
DR. PEPPER OF STAUNTON
AND
SELECTIVE INSURANCE COMPANY MEMORANDUM OPINION*
v. 	Record No. 2293-94-3 	PER CURIAM
MAY 30, 1995
ROBERT DONALD KELLEY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(G. Rodney Young, II; Wharton, Aldhizer & Weaver,
on brief), for appellants.
No brief for appellee.
Halmor Corporation d/b/a Dr. Pepper of Staunton and its
insurer (hereinafter collectively referred to as "employer")
contend that the Workers' Compensation Commission erred in
finding that Robert Donald Kelley sustained an injury by accident
arising out of and in the course of his employment. 	Upon
reviewing the record and opening brief, we conclude that this
appeal is without merit. 	Accordingly, we summarily affirm the
commission's decision. 	Rule 5A:27.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
"In order to carry his burden of proving an 'injury by
accident,' a claimant must prove that the cause of his 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

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858, 865 (1989).
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). 	We
must uphold the commission's findings of fact if they are
supported by credible evidence. 	James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
Kelley testified that on November 15, 1993, he lifted and
pulled the corner of a three-foot by four-foot pallet loaded with
drinks in an attempt to remove the plastic wrap. 	Kelley
testified that the plastic wrap would not come off and that he
had to lift and pull it several times to remove it from the
pallet. 	After removing the plastic wrap, Kelley loaded or moved
the pallet. 	Approximately five minutes later, he sat down in a
truck and felt a bulging pain. 	He examined himself in the
restroom and discovered that "things didn't look right." 	He
informed his co-worker that he had hurt himself. 	The co-worker
told him that he had sustained a hernia. 	The pain worsened as
Kelley continued to work. 	At 1:00 a.m. the next morning, Kelley
sought treatment at King's Daughter's Hospital emergency room.
The hospital emergency room report states that Kelley
"pulled something loose in LLQ, at work 8 pm tonight upon lifting
pallet of Dr. Pepper-noted swelling upon getting into truck."
Kelley was diagnosed with acute inguinal hernia. 	Dr. William L.
Faulkenberry's Attending Physician's Report relates a similar

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history and notes treatment for left inguinal hernia.
The commission awarded compensation, finding that Kelley's
left inguinal hernia was the result of a November 15, 1993,
identifiable incident that caused an obvious sudden mechanical or
structural change in Kelley's body. 	Kelley's testimony and the
medical evidence provides sufficient credible evidence to support
the commission's findings. 	Although Kelley did not experience
pain until five minutes after pulling and lifting the pallet, his
condition can be fairly traced to an identifiable incident
occurring at a specific time. 	"Where reasonable inferences may
be drawn from the evidence in support of the commission's factual
findings, they will not be disturbed on appeal." 	Hawks v.
Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698
(1988).
For the reasons stated, we affirm the commission's decision.
Affirmed.