Farnaz Farnia v. Prime Receivable, LLC

• Court: Court of Appeals of Virginia
• Decided: November 7, 2000
• Docket: 0956004
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Frank and Clements

FARNAZ FARNIA MEMORANDUM OPINION* v. Record No. 0956-00-4 PER CURIAM NOVEMBER 7, 2000 PRIME RECEIVABLES, LLC AND FEDERAL INSURANCE COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Farnaz Farnia, pro se, on brief).

(William T. Kennard; Mell, Brownell & Baker, on brief), for appellees.

Farnaz Farnia (claimant) contends that the Workers'

Compensation Commission erred in finding that she failed to

prove she sustained an injury by accident arising out of her

employment on July 31, 1998, or in the alternative, a

compensable occupational disease involving her left wrist. Upon

reviewing the record and the briefs of the parties, we conclude

that this appeal is without 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). To

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. recover benefits, claimant must establish that she suffered an

"injury by accident arising out of and in the course of [her]

employment," Code § 65.2-101, and "that the conditions of the

workplace or 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 phrase arising 'out of'

refers to the origin or cause of the injury." County of

Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74

(1989). "Whether an injury arises out of the employment is a

mixed question of law and fact and is reviewable by the

appellate court." Plumb Rite, 8 Va. App. at 483, 382 S.E.2d at

305. However, unless we conclude that claimant proved, as a

matter of law, that her employment caused her injury, the

commission's finding is binding and conclusive upon us. See

Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d

833, 835 (1970).

Claimant's job required that she sit at a computer terminal

and constantly answer a telephone. In performing her job, she

grabbed the telephone receiver with her left hand and typed on

the computer with her right hand.

On July 31, 1998, she grabbed her telephone receiver and

her wrist twisted backwards. She stated that her telephone had

been moved on her desk from its normal location. Claimant

admitted that she did not know what caused her wrist to twist

- 2 - backwards. She described nothing unusual about the telephone

handset or cord, and she confirmed that the telephone did not

get caught on anything. She did not attribute her injury to the

weight of the telephone nor could she determine what caused her

injury. After July 31, 1998, the constant use of her left hand

to answer the telephone made her symptoms worse.

Claimant admitted that in a conversation with employer's

insurance adjuster, claimant denied that her injury was caused

by a specific event, but rather contended that it was due to

several events.

On November 3, 1998, Dr. Carlos Gonzales examined claimant.

Dr. Gonzales recorded a history of claimant experiencing left

wrist pain while grabbing a telephone at work three months

earlier. Dr. Gonzales also noted that claimant developed

complaints of left neck, arm, and upper back pain after she

helped to lift items when employer moved its business.

Dr. Stephen Pournaras, a hand specialist, examined claimant

on November 11, 1998. Dr. Pournaras noted that claimant first

began having left hand symptoms in July 1998 while at work "when

she was answering a lot more telephone calls." Claimant told

Dr. Pournaras that her wrist was being hyperextended on a

regular basis and that she developed left neck pain after she

started holding her telephone with her neck between her left

shoulder and her chin. Dr. Pournaras diagnosed degenerative

- 3 - arthritis of the cervical spine and tendinitis of the left

wrist. Dr. Pournaras indicated that he was uncertain as to

whether claimant's problems were related to her work.

On November 18, 1998, Dr. Lisa White-Hudgens examined

claimant. Dr. White-Hudgens noted that claimant suffered from

constant moderate left-sided neck and upper back pain and

intermittent left-sided wrist and arm pain. Dr. White-Hudgens

recorded a history of wrist pain beginning in July 1998 after

claimant answered telephones at work for an extended period of

time. Claimant told Dr. White-Hudgens that she exacerbated her

symptoms when she helped move items at work in September,

October, and November, 1998. Dr. White-Hudgens diagnosed

cervical and thoracic myofascial pain syndrome secondary to

cumulative trauma disorder most likely secondary to occupational

duties of answering telephones.

On January 25, 1999, Dr. White-Hudgens provided a revised

medical report upon claimant's request. In that report, Dr.

White-Hudgens indicated that claimant had brought to her

attention that an inaccuracy existed in Dr. White-Hudgens's

initial evaluation report. Claimant told Dr. White-Hudgens that

"she actually twisted her wrist on July 31, 1998 while answering

high volume telephones and then developed wrist pain with

radiation into the arm." As a result, Dr. White-Hudgens changed

her diagnosis to "cervical and thoracic segmental dysfunction

- 4 - and related myofascial pain syndrome secondary to trauma

secondary to occupational injury."

In ruling that claimant failed to prove that she sustained

an injury by accident arising out of her employment on July 31,

1998, the commission found as follows:

Although [claimant] contends that her telephone had been moved to a different location on her desk, the evidence fails to show that [claimant's] injury was caused by significant exertion, or that her movements were awkward or strenuous. The claimant denied that the weight of the telephone receiver caused her injury. In fact, the claimant candidly acknowledged that she could not determine what caused her wrist injury. The simple act of answering the telephone under these circumstances does not constitute an actual risk of the employment . . . .

The evidence established that claimant did not engage in

any significant exertion, that her simple act of picking up the

telephone receiver did not involve any significant exertion or

awkward position, and that no condition or hazard peculiar to

her workplace caused her injury, aside from the usual act of

answering the telephone. Therefore, we hold that claimant

failed to prove as a matter of law that her wrist injury arose

out of her employment.

Occupational Disease

Dr. White-Hudgens initially opined that claimant's

condition was caused by cumulative trauma, which is not

compensable under the Act as an occupational disease. See

- 5 - Stenrich Group v. Jemmott, 251 Va. 186, 199, 467 S.E.2d 795, 802

(1996). Dr. White-Hudgens later changed her opinion as a result

of a telephone conversation with claimant to reflect that

claimant's condition was caused by traumatic injury. However,

for the reasons stated above, claimant failed to prove that she

sustained an injury by accident arising out of her employment.

Furthermore, Dr. Pournaras, who diagnosed claimant as suffering

from degenerative arthritis and tendinitis, was not able to

causally relate these conditions to claimant's work. For an

occupational disease to be compensable under the Act, claimant

must prove "[a] direct causal connection between the conditions

under which work is performed and the occupational disease."

Code § 65.2-400(B)(1). Accordingly, the commission did not err

in finding that claimant failed to prove a compensable

occupational disease.

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

Affirmed.

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