KIRK JOHNSON
v.
DELTA AIR LINES, INC.
INDEMNITY INS CO OF N AMERICA (INA INS), Insurance Carrier
SEDGWICK CLAIMS MANAGEMENT SERVICES, INC, Claim Administrator
Jurisdiction Claim No. VA00001638552
Virginia Workers’ Compensation
Virginia In The Workers’ Compensation Commission
March 31, 2021
Date
of Injury: December 7, 2016.
Claim
Administrator File No. B966917201000101669.
Kirk
Johnson, Claimant, pro se.
Richard S. Sperbeck, Esquire1 For the Defendants.
REVIEW
on the record by Commissioner Marshall, Commissioner Newman,
and Commissioner Rapaport at Richmond, Virginia.
OPINION
RAPAPORT Commissioner.
The
claimant requests review of the Deputy Commissioner’s
November 23, 2020 Opinion finding that he did not meet his
burden of proving he sustained a compensable injury by
accident on December 7, 2016. After careful review, we
AFFIRM.
I.
Material Proceedings
On
April 10, 2020 and July 1, 2020, the claimant filed claims
alleging that he suffered a compensable injury by accident on
December 7, 2016. Deputy Commissioner Himmel conducted
evidentiary hearings on August 13, 2020 and October 8, 2020.
At the initial hearing, the claimant requested medical
benefits for a back injury, and temporary total disability
benefits beginning May 10, 2017, based on a pre-injury
average weekly wage of $600.
Pertinent
to our review, the defendants defended the claim on the basis
there was insufficient evidence to support the
claimant’s claim of a back injury caused by a work
accident.
Deputy
Commissioner Himmel held the claimant did not prove he
suffered an obvious sudden mechanical or structural bodily
change as required by the Virginia Workers’
Compensation Act. He also found there was a lack of medical
evidence to support the 2016 work accident materially
aggravated a pre-existing underlying condition. He based the
denial of the claimant’s claim on the lack of indicia
signaling an obvious sudden bodily change, the failure to
mention the work accident in the medical record, and the lack
of medical statement supporting causation.
The
claimant requests review of the decision.[2]
II.
Findings of Fact and Rulings of Law
The
burden is upon the claimant to prove by a preponderance of
the evidence that he sustained a compensable injury pursuant
to the Virginia Workers’ Compensation Act. Va.
Dep’t of Transp. v. Mosebrook, 13 Va.App. 536, 537
(1992) (citing Woody v. Mark Winkler Mgmt., Inc., 1
Va.App. 147, 150 (1985)). In order to prove an injury by
accident, a claimant must demonstrate by a preponderance of
the evidence (1) an identifiable incident; (2) that occurs at
some reasonably definite time; (3) an obvious sudden
mechanical or structural change in the body; and (4) a causal
connection between the incident...
