Dan River, Inc. v. Teresa G. Morrison

• Court: Court of Appeals of Virginia
• Decided: May 7, 2002
• Docket: 1899013
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Clements Argued at Salem, Virginia

DAN RIVER, INC. MEMORANDUM OPINION* BY v. Record No. 1899-01-3 JUDGE JEAN HARRISON CLEMENTS MAY 7, 2002 TERESA G. MORRISON

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

James A. L. Daniel (Elizabeth B. Carroll; Daniel, Vaughan, Medley & Smitherman, P.C., on brief), for appellant.

No brief or argument for appellee.

Dan River, Inc. (employer) appeals an award by the Workers'

Compensation Commission (commission) of medical benefits to

Teresa G. Morrison (claimant). On appeal, employer contends the

commission erred in concluding that claimant sustained a

compensable injury by accident arising out of and in the course

of her employment. For the reasons that follow, we reverse the

commission's award of benefits.

As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. proceedings as necessary to the parties' understanding of the

disposition of this appeal.

I. BACKGROUND

"By well established principles, we view the evidence in the

record in the light most favorable to the party prevailing before

the commission." Boys and Girls Club of Virginia v. Marshall, 37

Va. App. 83, 85, 554 S.E.2d 104, 105 (2001). So viewed, the

evidence established that, in June of 2000, claimant was working

for employer as a pillowcase folder. She had worked for employer

for twenty-one years, the last ten years folding pillowcases.

Normally, claimant used a folding machine to fold pillowcases,

but, in June of 2000, she began, on occasion, to also fold

pillowcases by hand.

Claimant, who is six feet one and one-half inches tall,

demonstrated the hand-folding process to the deputy commissioner

and described the process as follows: First, she removes the

pillowcase from a dolly and lays it flat on her table, which is

"about thirty-six inches high."1 She then "flip[s] the bottom

part up," "take[s] the side up to the other side," "take[s] from

one side to the next side and then back to the other side," and

flips the "bottom up to the top." On days she folded pillowcases

1 The deputy commissioner stated in his written opinion that the table claimant used to fold pillowcases by hand was "thirty-two inches from the floor." We find no evidence in the record to support this finding. Claimant herself explicitly testified that the table she used for hand-folding pillowcases was "about thirty-six inches high."

- 2 - by hand, claimant was expected to fold at least 2,295 king-size

pillowcases.

On the first day claimant folded pillowcases by hand in June

2000, she experienced a pain in her left arm "going up toward

[her] elbow." Claimant testified that she "first felt" the pain

when, in the course of folding a pillowcase by hand, she "flipped

the bottom [of the pillowcase] up to the top." Claimant reported

the discomfort to her supervisor but was able to keep working.

She continued to experience pain in her left arm throughout the

summer and fall of 2000 whenever she folded pillowcases by hand.

After complaining to her supervisor several times about the

pain in her arm, claimant was sent to employer's health clinic on

September 13, 2000. The clinic referred her to Piedmont

PrimeCare, where she was examined and treated by Dr. Ivan Lazo.

Noting that claimant's discomfort in her left arm was due to her

change of jobs, Dr. Lazo diagnosed claimant's condition as

tendonitis of the left elbow and prescribed Naprosyn to treat it.

Eventually, claimant was referred to Danville Orthopedic

Clinic, where Dr. Ronald Hodges examined her on November 30, 2000.

Noting that claimant's pain in her left arm began when she

switched to folding pillowcases by hand, Dr. Hodges opined that

claimant's ongoing condition was "a repetitive strength sprain

injury." "When she starts this repetitive motion of hand

folding," Dr. Hodges reported, "she gets enough muscle edema in

her forearm to cause a radial nerve compression." He gave her

- 3 - Vioxx to take when she folded pillowcases by hand and recommended

that her work station be ergonomically modified to prevent further

problems.

Claimant sought compensation for her medical expenses related

to the injury to her left arm. Relying on claimant's "credibl[e]"

and "unrebutted" testimony and the fact that claimant's testimony

was "consistent with the medical record," the deputy commissioner

ruled that claimant suffered a compensable industrial injury to

her left arm on June 1, 2000, and awarded her the medical expenses

directly related to that injury and the resulting tendonitis.

On review, although one commissioner believed the evidence

failed to prove claimant's injury arose out of her employment, the

majority of the commission affirmed the deputy commissioner's

finding and award. Based on claimant's unrebutted testimony

"concerning the sudden onset of her symptoms" and Dr. Lazo's

report corroborating that testimony, the majority concluded that

the deputy commissioner correctly found that claimant proved an

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

employment.

This appeal by employer followed.

II. ANALYSIS

To recover benefits under the Workers' Compensation Act, the

employee must prove "by a preponderance of the evidence that [she]

suffered an injury by accident 'arising out of and in the course

of [her] employment.'" Falls Church Const. Corp. v. Valle, 21 Va.

- 4 - App. 351, 359-60, 464 S.E.2d 517, 522 (1995) (quoting Code

§ 65.2-101). Employer argues, on appeal, that claimant is not

entitled to medical benefits because she failed to prove her

injury arose out of her employment. We agree.

"Factual findings by the commission that are supported by

credible evidence are conclusive and binding upon this Court on

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

134, 428 S.E.2d 32, 34 (1993). However, "[b]ecause the finding of

whether an injury 'arose out' of the employment is a mixed

question of law and fact, we must determine whether the facts

presented are sufficient as a matter of law to justify the

[c]ommission's finding." Hercules, Inc. v. Stump, 2 Va. App. 77,

78, 341 S.E.2d 394, 395 (1986).

"The phrase 'arising out of' pertains to the origin or cause

of an injury." Combs v. Virginia Elec. & Power Co., 259 Va. 503,

508, 525 S.E.2d 278, 281 (2000). To determine whether an injury

arose out of employment, "we apply an 'actual risk test,' meaning

that the employment must expose the employee to the particular

danger causing the injury, notwithstanding the public's exposure

generally to similar risks." Id. at 510, 525 S.E.2d at 282.

Accordingly,

[a] claimant's injury arises out of the employment if the manner in which the employer requires the work to be performed is causally related to the resulting injury. See Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). An injury does not arise out of the employment when it "cannot

- 5 - fairly be traced to the employment as a contributing proximate cause and . . . comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood." Id. (emphasis added) (citation omitted).

Vint v. Alleghany Regional Hosp., 32 Va. App. 60, 63-64, 526

S.E.2d 295, 297 (2000).

Here, claimant presented no evidence that a condition

peculiar to her employment caused her injury. In describing how

she sustained the injury, claimant simply testified that she first

felt the pain in her left arm when, while folding a pillowcase by

hand, she "flipped the bottom [of the pillowcase] up to the top."

Claimant did not testify, and the deputy commissioner, having

observed claimant's hand-folding demonstration, did not find, that

claimant had to make any significant exertion or awkwardly bend,

twist, or otherwise move or contort her body or left arm to fold

the pillowcase. Likewise, claimant did not testify to any defect

or deformity in the particular pillowcase she was folding when

injured that made it any more difficult to fold than any other

pillowcase.

Indeed, claimant made no mention of any possible causal

connection between the injury and the manner in which she was

required to perform her job. Although she testified that she was

six feet one and one-half inches tall and that the table upon

which she folded the pillowcase was thirty-six inches high, she

- 6 - neither asserted any connection between such a discrepancy in

heights and her injury nor presented any evidence to suggest that

such a connection existed. Additionally, no medical evidence

established that the manner in which the employer required

claimant to perform her job was causally related to the resulting

injury to her left arm. 2

Furthermore, folding pillowcases is a common household chore.

Thus, as the dissenting commissioner noted, "[t]he hazards

associated with folding [a single] pillowcase are hazards to which

the claimant would have been equally exposed apart from her

employment."

Consequently, claimant failed "to show that the conditions of

the workplace or that some significant work related exertion

caused the injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va.

App. 482, 484, 382 S.E.2d 305, 306 (1989). "The mere happening of

an accident at the workplace, not caused by any work related risk

or significant work related exertion, is not compensable." Id.

2 Dr. Hodges did opine generally that claimant's "repetitive strength sprain injury" was "probably related to the fact that her job station [was] not set up ergonomically for her," but, as the commission noted, "Dr. Hodges's opinion did not indicate that he was [even] aware of the sudden onset [of claimant's symptoms], as he did not begin treating the claimant until six months after her symptoms began." We conclude, therefore, that Dr. Hodges's opinion was in reference to claimant's ongoing condition rather than to her initial injury, which is the subject of this analysis. Thus, that opinion is an insufficient basis to find that the manner in which employer required claimant to perform her job was causally related to her injury.

- 7 - We hold, therefore, that claimant failed to sustain her

burden of proving that her injury arose out of her employment.

Hence, the evidence presented in this case was insufficient as a

matter of law to justify the commission's award of compensation

benefits. Accordingly, we reverse the commission's award. 3

Reversed.

3 Employer also argues on appeal that claimant did not suffer a compensable injury by accident and that the commission failed to give proper consideration to claimant's medical records. Because we reverse on the ground that claimant's injury did not arise out of her employment, we do not address employer's additional arguments.

- 8 - Benton, J., dissenting.

"An [injury by] accident arises out of the employment if

there is a causal connection between the claimant's injury and

the conditions under which the employer requires the work to be

performed." R & T Investments Ltd. v. Johns, 228 Va. 249, 252,

321 S.E.2d 287, 289 (1984).

"To constitute injury by accident it is not necessary that there should be an extraordinary occurrence in or about the work engaged in." The evidence is sufficient to establish an injury by accident "even though the degree of exertion is usual and ordinary and 'the workman had some predisposing physical weakness.'"

Grove v. Allied Signal, Inc., 15 Va. App. 17, 22, 421 S.E.2d 32,

35 (1992) (quoting Kemp v. Tidewater Kiewit, 7 Va. App. 360,

363, 373 S.E.2d 725, 726 (1988)) (citations omitted).

The evidence proved Morrison is six feet one and one-half

inches tall. At the evidentiary hearing, Morrison demonstrated

the manner in which she performed her job when she first felt

pain. Although she testified that the table where she had to

stand to perform her work tasks was "about thirty-six inches

high," she stood and demonstrated how she performed those tasks

at her work station. The deputy commissioner found that her

work station was "about thirty-two inches from the floor." The

deputy commissioner expressly found her "to be a credible

witness" and found that the onset of her pain, as she had

attested, was the point in time when she first manually folded a

- 9 - pillowcase. Although the deputy commissioner rejected

Dr. Hodges' diagnosis of a repetitive injury, he accepted

Dr. Hodges' opinion that Morrison's work station was not

ergonomically designed for a person of her stature. The deputy

commissioner also found credible Dr. Ivan E. Lazo's attending

physician report, which diagnosed Morrison's tendonitis injury

to be a result of the folding incident. The commission affirmed

those findings and in particular, found the injury was of

"sudden onset" and caused by the work activity. The commission

also rejected the employer's contention that "the medical

evidence showed a cumulative-trauma injury."

In determining whether credible evidence supports these

findings, we are not at liberty to ignore the evidence in the

record that Morrison's work station was not ergonomically

configured for a person of her height. Because "[e]rgonomics is

the study of the relationship between people and the equipment

or systems they use," Norfolk Southern Ry v. Bowles, 261 Va. 21,

25, 539 S.E.2d 727, 729 (2001), the commission could rely upon

the doctor's conclusion that Morrison's injury probably flowed

from the inappropriate height of her work station. In First

Federal Sav. & Loan Ass'n v. Gryder, 9 Va. App. 60, 65, 383

S.E.2d 755, 759 (1989), we held that a "contortion of the body"

that is necessary to perform a job task is a hazard of the

workplace. Likewise, we held in Bassett-Walker Inc. v. Wyatt,

26 Va. App. 87, 93-94, 493 S.E.2d 384, 387-88 (1997) (en banc),

- 10 - that an employee who was required to squat or bend her knees at

a knitting machine was engaged in a risk peculiar to the

employment. We also noted that "[t]he mere fact that an unusual

movement required by one's employment is occasionally done

outside the workplace does not necessarily make a resulting

workplace injury non-compensable." Id. at 94, 493 S.E.2d at 88.

Similarly, Morrison's employment exposed her to the

peculiar risk of folding pillowcases at a work table that was

not ergonomically suitable for her height. Dr. Hodges' opinion

supports the conclusion that an improper ergonomic job station

caused an injury. In addition to folding pillowcases, which may

have been an everyday chore, Morrison's job required that she do

so rapidly and on a table only thirty-two inches from the floor.

"That the activity was usual, and did not require exertion, and

that the injury was not 'foreseen or expected' are irrelevant."

Grove, 15 Va. App. at 22, 421 S.E.2d at 35. The "'causative

danger . . . had its origin in a risk connected with the

employment, and . . . flowed from that source as a rational

consequence.'" Johns, 228 Va. at 253, 321 S.E.2d at 289

(quoting Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684,

686 (1938)). Thus, I would hold that credible evidence proved

that the manner in which the employer required Morrison to

perform her job created a hazard of the workplace that caused

the injury.

- 11 - I would also hold that the commission properly credited

Morrison's testimony and the report of Dr. Lazo in concluding

that Morrison experienced a sudden injury that had its genesis

in the initial folding incident. In Dollar General Store v.

Cridlin, 22 Va. App. 171, 177, 468 S.E.2d 152, 155 (1996), we

held that "the commission was free to credit claimant's

testimony . . . as a basis for its finding of causation."

Morrison testified that she had participated in sports and that

she had never had any injuries prior to changing to this job,

which required her to manually fold pillowcases at this table.

Morrison explained that on the first day of hand-folding she

immediately informed her supervisor of the pain. Although she

initially thought the pain would subside once she became

accustomed to the new job, it did not. Accepting her testimony,

the deputy commissioner noted that Morrison's supervisor was

present at the hearing and did not testify or refute Morrison's

testimony about the reporting of the onset of pain.

In addition, Dr. Hodges' report indicated that Morrison's

work station probably caused her injury and recommended a

modification of Morrison's work station. Rejecting the view

that Morrison suffered a cumulative trauma injury, the

commission found that Dr. Hodges "did not indicate he was aware

of the sudden onset" of Morrison's injury and that he did not

begin treating her until six months after the event. Finding

that the medical evidence essentially corroborated Morrison's

- 12 - testimony, the commission accepted, as did the deputy

commissioner, that her tendonitis injury was caused by her job

station, which was ergonomically inappropriate for her.

Moreover, Dr. Lazo opined that the incident reported by Morrison

caused her injury. As in Ogden Aviation Services v. Saghy, 32

Va. App. 89, 102-03, 526 S.E.2d 756, 762 (2000), "the evidence

in the instant case proved that [Morrison's injury] was not an

injury of gradual growth or the result of cumulative trauma

. . . [but, rather,] occurred while performing a single act." I

believe credible evidence supports the commission's holding that

Morrison's ergonomically inappropriate work station caused her

injury.

For these reasons, I would hold that the commission's

decision is supported by credible evidence establishing that

Morrison's injury occurred when she first hand-folded the

pillowcase, that she was working at a station not suitable for a

person of her height, and that her injury resulted from

performing a task required by her employment. Therefore, I

dissent.

- 13 -