COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Bumgardner Argued at Salem, Virginia
GOODYEAR TIRE AND RUBBER COMPANY AND TRAVELERS INDEMNITY COMPANY OF ILLINOIS MEMORANDUM OPINION * BY v. Record No. 0071-99-3 JUDGE RUDOLPH BUMGARDNER, III AUGUST 3, 1999 RONALD WOOD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Martha White Medley (Daniel, Vaughan, Medley & Smitherman, P.C., on brief), for appellants.
(Henry G. Crider, on brief), for appellee. Appellee submitting on brief.
Goodyear Tire and Rubber Company and Travelers Indemnity
Company appeal the commission's award of benefits to Ronald
Wood. Goodyear argues that the commission erred in finding Wood
suffered a compensable injury by accident. Finding that Wood's
back injury arose out of and in the course of his employment
with Goodyear, we affirm the award.
We view the evidence in the light most favorable to Wood,
the prevailing party before the commission. See Crisp v.
Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339
S.E.2d 916, 916 (1986). So viewed, the evidence established
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. that Wood worked for twenty-six years as an aircraft repairman
for Goodyear. On June 23, 1997, while working his usual shift,
Wood injured his back. He was placing a fifty-four inch wide
aircraft tire on a forty-two inch wide table when he was
injured. Wood used an electric hoist to lift the tire and then
lower it onto the table. Wood testified that the tires are
"real slick and will try to slide off" the table. "[I]n the
process of letting the tire down I'm . . . twisting back and
forth, and I had a pain occur in my back." Wood testified he
had his left hand on the tire, right hand on the hoist, and that
his left knee was propping up the tire when he "turn[ed] back
around [and] had a pain in his back."
On June 25, 1997, Dr. Alton F. Gross, an orthopedic
surgeon, treated Wood and placed him on light duty for June 25
and June 26. On June 27, 1997, Dr. Gross diagnosed Wood with
degenerative joint disease and lumbosacral strain. Dr. Gross
was unable to determine if this diagnosis was due to the June
23, 1997 incident. On July 7, 1997, Dr. Thomas Connelly
diagnosed Wood's condition as "sprain, LS spine" arising out of
his employment on June 23, 1997 while putting an aircraft tire
on a table.
On an Associate Report of Incident form, Wood wrote
"working on a aircraft tire putting tire on repair table. When
I turn back around had a pain in back." He wrote that he hurt
himself "while . . . turning around." Wood also signed a
- 2 - Goodyear "Accident Investigation form" completed by his
supervisor and dated June 27, 1997. The "Unsafe Act" listed on
the form indicated that "associate should step before turning
his upper body." On June 23, 1997, Wood told a Travelers'
representative "I guess I just twisted wrong."
Wood's medical history included a 1982 back injury for
which he received extensive treatment. After 1987, however, he
received no treatment for this injury.
Goodyear sent Dr. Gross a questionnaire in September 1997
to which he was asked to either agree or disagree with the
statements contained therein. The fourth statement, to which
Dr. Gross agreed without comment, read as follows:
Assuming that Mr. Wood told his immediate supervisor on June 23, 1997 that his back had begun to bother him while he was merely turning to walk away from his work station and while he was not lifting or carrying any object, it is more likely than not that Mr. Wood experienced his back pain or strain as a result of the normal and everyday motion or activity of turning and walking, an experience which is not unusual given Mr. Wood's prior back problems and the condition of his spinal column (including the congenital anomaly of an extra vertebra in the spinal column.)
On November 24, 1997 the deputy commissioner denied Wood
benefits. The deputy found that Wood injured his back on June
23, 1997 when he "was turning or twisting around after he had
set the tire on the table . . . ." Given these facts and Wood's
history of back problems, the deputy relied heavily on Dr.
- 3 - Gross's affirmative response to Goodyear's statement number
four. Concluding "that the incident was a result of Wood's
extensive pre-existing back problems," the deputy ruled that he
failed to prove the necessary causal connection between the 1997
injury at work and his subsequent disability.
In its December 11, 1998 opinion, the commission relied on
the deputy's factual finding that the incident occurred after
Wood "placed the tire on the table and when he was turning or
twisting around." It concluded, however, that Wood had proven a
causal connection between the work incident and his disability
and awarded him benefits.
The commission found no causal connection between Wood's
1982 and 1997 back injuries. There was no evidence that the
1982 injury was treated after 1987. The "only medical evidence
which indicates that [Wood's] back complaints in 1997 are not
related to the June 23, 1997 accident" is Dr. Gross's response
to the questionnaire. This "summary response lacks probative
value" because it lacks an explanation and the facts do not
"accurately describe the relevant circumstances related to
[Wood's] injury." The commission awarded benefits on the ground
that Wood's act of turning around was associated with his
employment.
The sole issue on appeal is whether Wood's injury "arose
out of" his employment with Goodyear. While questions of fact
are conclusive and binding on appeal, whether a claimant has
- 4 - suffered a compensable injury is a mixed question of law and
fact reviewable on appeal. See Stenrich Group v. Jemmott, 251
Va. 186, 192, 467 S.E.2d 795, 798 (1996). Applying the "actual
risk" test, an employee's injury "arises out of" his employment
when "it is apparent to a rational mind, under all attending
circumstances, that a causal connection exists between the
conditions under which the work is required to be performed and
the resulting injury." Lipsey v. Case, 248 Va. 59, 61, 445
S.E.2d 105, 106 (1994) (dog-bite from co-worker's dog not
causally related to work) (citations omitted). See also Richard
E. Brown, Inc. v. Caporaletti, 12 Va. App. 242, 245, 402 S.E.2d
709, 711 (1991); Kemp v. Tidewater Kiewit, 7 Va. App. 360, 363,
373 S.E.2d 725, 726 (1988).
In reversing the deputy's decision, the commission relied
on Grove v. Allied Signal, Inc., 15 Va. App. 17, 421 S.E.2d 32
(1992). Grove, a pipe fitter, was working several feet off the
ground in a crouched position when he injured his back while
reaching for a pipe. Whether Grove was reaching for or had
lifted the pipe, the evidence was sufficient to prove that the
"'"causative danger . . . had its origin in a risk connected
with the employment, and . . .
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Bumgardner Argued at Salem, Virginia
GOODYEAR TIRE AND RUBBER COMPANY AND TRAVELERS INDEMNITY COMPANY OF ILLINOIS MEMORANDUM OPINION * BY v. Record No. 0071-99-3 JUDGE RUDOLPH BUMGARDNER, III AUGUST 3, 1999 RONALD WOOD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Martha White Medley (Daniel, Vaughan, Medley & Smitherman, P.C., on brief), for appellants.
(Henry G. Crider, on brief), for appellee. Appellee submitting on brief.
Goodyear Tire and Rubber Company and Travelers Indemnity
Company appeal the commission's award of benefits to Ronald
Wood. Goodyear argues that the commission erred in finding Wood
suffered a compensable injury by accident. Finding that Wood's
back injury arose out of and in the course of his employment
with Goodyear, we affirm the award.
We view the evidence in the light most favorable to Wood,
the prevailing party before the commission. See Crisp v.
Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339
S.E.2d 916, 916 (1986). So viewed, the evidence established
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. that Wood worked for twenty-six years as an aircraft repairman
for Goodyear. On June 23, 1997, while working his usual shift,
Wood injured his back. He was placing a fifty-four inch wide
aircraft tire on a forty-two inch wide table when he was
injured. Wood used an electric hoist to lift the tire and then
lower it onto the table. Wood testified that the tires are
"real slick and will try to slide off" the table. "[I]n the
process of letting the tire down I'm . . . twisting back and
forth, and I had a pain occur in my back." Wood testified he
had his left hand on the tire, right hand on the hoist, and that
his left knee was propping up the tire when he "turn[ed] back
around [and] had a pain in his back."
On June 25, 1997, Dr. Alton F. Gross, an orthopedic
surgeon, treated Wood and placed him on light duty for June 25
and June 26. On June 27, 1997, Dr. Gross diagnosed Wood with
degenerative joint disease and lumbosacral strain. Dr. Gross
was unable to determine if this diagnosis was due to the June
23, 1997 incident. On July 7, 1997, Dr. Thomas Connelly
diagnosed Wood's condition as "sprain, LS spine" arising out of
his employment on June 23, 1997 while putting an aircraft tire
on a table.
On an Associate Report of Incident form, Wood wrote
"working on a aircraft tire putting tire on repair table. When
I turn back around had a pain in back." He wrote that he hurt
himself "while . . . turning around." Wood also signed a
- 2 - Goodyear "Accident Investigation form" completed by his
supervisor and dated June 27, 1997. The "Unsafe Act" listed on
the form indicated that "associate should step before turning
his upper body." On June 23, 1997, Wood told a Travelers'
representative "I guess I just twisted wrong."
Wood's medical history included a 1982 back injury for
which he received extensive treatment. After 1987, however, he
received no treatment for this injury.
Goodyear sent Dr. Gross a questionnaire in September 1997
to which he was asked to either agree or disagree with the
statements contained therein. The fourth statement, to which
Dr. Gross agreed without comment, read as follows:
Assuming that Mr. Wood told his immediate supervisor on June 23, 1997 that his back had begun to bother him while he was merely turning to walk away from his work station and while he was not lifting or carrying any object, it is more likely than not that Mr. Wood experienced his back pain or strain as a result of the normal and everyday motion or activity of turning and walking, an experience which is not unusual given Mr. Wood's prior back problems and the condition of his spinal column (including the congenital anomaly of an extra vertebra in the spinal column.)
On November 24, 1997 the deputy commissioner denied Wood
benefits. The deputy found that Wood injured his back on June
23, 1997 when he "was turning or twisting around after he had
set the tire on the table . . . ." Given these facts and Wood's
history of back problems, the deputy relied heavily on Dr.
- 3 - Gross's affirmative response to Goodyear's statement number
four. Concluding "that the incident was a result of Wood's
extensive pre-existing back problems," the deputy ruled that he
failed to prove the necessary causal connection between the 1997
injury at work and his subsequent disability.
In its December 11, 1998 opinion, the commission relied on
the deputy's factual finding that the incident occurred after
Wood "placed the tire on the table and when he was turning or
twisting around." It concluded, however, that Wood had proven a
causal connection between the work incident and his disability
and awarded him benefits.
The commission found no causal connection between Wood's
1982 and 1997 back injuries. There was no evidence that the
1982 injury was treated after 1987. The "only medical evidence
which indicates that [Wood's] back complaints in 1997 are not
related to the June 23, 1997 accident" is Dr. Gross's response
to the questionnaire. This "summary response lacks probative
value" because it lacks an explanation and the facts do not
"accurately describe the relevant circumstances related to
[Wood's] injury." The commission awarded benefits on the ground
that Wood's act of turning around was associated with his
employment.
The sole issue on appeal is whether Wood's injury "arose
out of" his employment with Goodyear. While questions of fact
are conclusive and binding on appeal, whether a claimant has
- 4 - suffered a compensable injury is a mixed question of law and
fact reviewable on appeal. See Stenrich Group v. Jemmott, 251
Va. 186, 192, 467 S.E.2d 795, 798 (1996). Applying the "actual
risk" test, an employee's injury "arises out of" his employment
when "it is apparent to a rational mind, under all attending
circumstances, that a causal connection exists between the
conditions under which the work is required to be performed and
the resulting injury." Lipsey v. Case, 248 Va. 59, 61, 445
S.E.2d 105, 106 (1994) (dog-bite from co-worker's dog not
causally related to work) (citations omitted). See also Richard
E. Brown, Inc. v. Caporaletti, 12 Va. App. 242, 245, 402 S.E.2d
709, 711 (1991); Kemp v. Tidewater Kiewit, 7 Va. App. 360, 363,
373 S.E.2d 725, 726 (1988).
In reversing the deputy's decision, the commission relied
on Grove v. Allied Signal, Inc., 15 Va. App. 17, 421 S.E.2d 32
(1992). Grove, a pipe fitter, was working several feet off the
ground in a crouched position when he injured his back while
reaching for a pipe. Whether Grove was reaching for or had
lifted the pipe, the evidence was sufficient to prove that the
"'"causative danger . . . had its origin in a risk connected
with the employment, and . . . flowed from that source as a
rational consequence."'" Id. at 22, 421 S.E.2d at 34 (quoting
R&T Investments, Ltd. v. Johns, 228 Va. 249, 253, 321 S.E.2d
287, 289 (1984) (quoting Bradshaw v. Aronovitch, 170 Va. 329,
335, 196 S.E. 684, 686 (1938))).
- 5 - The commission agreed with the deputy that Wood's injury
occurred after the tire was placed on the repair table. It
ruled, however, that a causal connection existed between the
work incident and Wood's disability. Wood's "act of turning was
associated with the task of lowering an aircraft tire onto a
repair table." This was not a simple case of turning. Wood was
required to twist back and forth to balance the slick tire on
the smaller table. After setting the tire down, he felt "pain
while turning away which was directly connected to the more
strenuous activity." Clearly, Wood's job, which required
manipulating large aircraft tires onto repair tables, exposed
him to "hazards to which he would not have been equally exposed
apart from the conditions of the employment." Caporaletti, 12
Va. App. at 245, 402 S.E.2d at 711 (citations omitted).
We conclude that there was sufficient evidence in the
record to establish a compensable claim arising out of Wood's
employment. Accordingly, we affirm the commission's award of
benefits.
Affirmed.
- 6 -