COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Frank Argued at Salem, Virginia
INTERNATIONAL PAPER COMPANY MEMORANDUM OPINION * BY v. Record No. 2201-99-3 CHIEF JUDGE JOHANNA L. FITZPATRICK MAY 9, 2000 JAMES H. DeHART
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Christopher M. Kite (Tracy M. Benner; Frith, Anderson & Peake, P.C., on brief), for appellant.
No brief or argument for appellee.
International Paper Company ("employer") contends the
Workers' Compensation Commission ("commission") erred in
awarding medical benefits to James H. DeHart ("claimant"). The
sole issue is whether credible evidence supports the
commission's finding that claimant's injury arose out of his
employment. For the following reasons, we affirm.
I.
"On appeal, we view the evidence in the light most
favorable to the claimant, who prevailed before the commission."
Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d
335, 340 (1998) (citations omitted). "A question raised by
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. conflicting medical opinion is a question of fact." WLR Foods
v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997).
"'Decisions of the commission as to questions of fact, if
supported by credible evidence, are conclusive and binding on
this Court.'" Id. (quoting Manassas Ice & Fuel Co. v. Farrar,
13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991)). "'The fact
that there is contrary evidence in the record is of no
consequence.'" Id. (quoting Wagner Enters., Inc. v. Brooks, 12
Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)).
Claimant, a maintenance specialist for employer for over
twenty years, is six feet tall and weighs approximately 300
pounds. The evidence established that on July 20, 1998, he was
arranging forty-pound water bottles in a storage rack. Claimant
removed the empty bottles from the top rack, put them on the
floor and moved the full bottles to the top rack. Claimant,
working in a "crouched" position, rearranged approximately
fifteen bottles, which took five minutes. After completing this
activity, claimant "straightened up" from a squatting position
and felt a "burning sensation" in his "lower back toward [his]
hip area." Claimant described the onset of pain as follows:
Q. . . . Now explain what happened when you started feeling discomfort or pain.
A. Well, when I stood, up, straightened up, that is when I felt the pain.
Q. So it was after you had completed the job?
- 2 - A. Right.
Q. Completed what you were doing?
A. Right.
Q. Then you went to stand up from the squatting position?
Claimant was not lifting a water bottle when he experienced the
"burning sensation." He testified that the activity of
rearranging the water bottles "wasn't difficult at all" and
involved "mainly stretching and pulling."
Claimant immediately reported the incident to his
supervisor and continued to complete his shift that day.
However, for the next three days he was unable to work.
Claimant first sought medical treatment from Dr. Frank Pollock,
Jr., an orthopedist, on August 19, 1998. At that time, Dr.
Pollock noted that claimant's back became symptomatic while
"trying to lift a bottle at work." 1 Dr. Pollock diagnosed
claimant's condition as "degenerative disk disease" and
"bilateral sacroiliitis with degenerative changes in both
sacroiliac joints." In his September 16, 1998 medical report,
Dr. Pollock opined that claimant's injury was related to the
July 20, 1998 incident, stating the following:
1 At the hearing before the deputy commissioner, claimant admitted that Dr. Pollock's recorded history was inconsistent with the history of injury he had reported.
- 3 - I discussed again my belief that his injury was completely work related. He clearly had an acute exacerbation of pain in his sacroiliac joint after his injury which was not present prior to the injury.
Dr. Pollock saw claimant for follow-up treatment on October 14
and November 11, 1998, and thereafter released him to work
without restrictions.
Claimant filed a claim for benefits. Following a hearing,
a deputy commissioner denied his claim, concluding that
claimant's injury did not arise out of his employment. The
deputy commissioner found that "no workplace condition was
causative" and that he "became symptomatic while assuming an
upright position, a maneuver which he admitted was not made more
difficult by his immediate work environment."
Claimant appealed, and the commission reversed. The
commission concluded that claimant's injury was causally related
to his work because his "act of straightening and standing was
appurtenant to his performing work required as a condition of
his employment." It found that "the risk of this injury was
within the ambit of risks to which the claimant was exposed as a
result of the employment . . . ." Although the commission found
that claimant's injury arose out of his employment and that he
was entitled to medical benefits, it denied disability
compensation benefits because claimant "failed to establish that
- 4 - the period of his disability exceeded the [seven-day] statutory
waiting period." 2
II.
Employer contends the commission erred in finding that
claimant's injury arose out of his employment. Because claimant
testified that the work was not difficult or physically
demanding, employer contends the commission was bound by that
testimony and improperly found that claimant's injury was caused
by strenuous activity. Finally, employer argues that Dr.
Pollock's opinion regarding causation is insufficient because it
was not based upon an accurate understanding of claimant's
injury.
"An 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." Grove v. Allied Signal, Inc., 15 Va. App. 17, 19,
421 S.E.2d 32, 34 (1992) (citations omitted). "[T]he arising
out of test excludes 'an injury which comes from a hazard to
which the employee would have been equally exposed apart from
the employment. The causative danger must be peculiar to the
work, incidental to the character of the business, and not
independent of the master-servant relationship.'" County of
2 The commission affirmed the deputy commissioner's conclusion that claimant's back injury was not a compensable occupational disease under Code § 65.2-400.
- 5 - Chesterfield v. Johnson, 237 Va. 180, 183-84, 376 S.E.2d 73, 75
(1989) (quoting United Parcel Serv. v. Fetterman, 230 Va. 257,
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Frank Argued at Salem, Virginia
INTERNATIONAL PAPER COMPANY MEMORANDUM OPINION * BY v. Record No. 2201-99-3 CHIEF JUDGE JOHANNA L. FITZPATRICK MAY 9, 2000 JAMES H. DeHART
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Christopher M. Kite (Tracy M. Benner; Frith, Anderson & Peake, P.C., on brief), for appellant.
No brief or argument for appellee.
International Paper Company ("employer") contends the
Workers' Compensation Commission ("commission") erred in
awarding medical benefits to James H. DeHart ("claimant"). The
sole issue is whether credible evidence supports the
commission's finding that claimant's injury arose out of his
employment. For the following reasons, we affirm.
I.
"On appeal, we view the evidence in the light most
favorable to the claimant, who prevailed before the commission."
Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d
335, 340 (1998) (citations omitted). "A question raised by
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. conflicting medical opinion is a question of fact." WLR Foods
v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997).
"'Decisions of the commission as to questions of fact, if
supported by credible evidence, are conclusive and binding on
this Court.'" Id. (quoting Manassas Ice & Fuel Co. v. Farrar,
13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991)). "'The fact
that there is contrary evidence in the record is of no
consequence.'" Id. (quoting Wagner Enters., Inc. v. Brooks, 12
Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)).
Claimant, a maintenance specialist for employer for over
twenty years, is six feet tall and weighs approximately 300
pounds. The evidence established that on July 20, 1998, he was
arranging forty-pound water bottles in a storage rack. Claimant
removed the empty bottles from the top rack, put them on the
floor and moved the full bottles to the top rack. Claimant,
working in a "crouched" position, rearranged approximately
fifteen bottles, which took five minutes. After completing this
activity, claimant "straightened up" from a squatting position
and felt a "burning sensation" in his "lower back toward [his]
hip area." Claimant described the onset of pain as follows:
Q. . . . Now explain what happened when you started feeling discomfort or pain.
A. Well, when I stood, up, straightened up, that is when I felt the pain.
Q. So it was after you had completed the job?
- 2 - A. Right.
Q. Completed what you were doing?
A. Right.
Q. Then you went to stand up from the squatting position?
Claimant was not lifting a water bottle when he experienced the
"burning sensation." He testified that the activity of
rearranging the water bottles "wasn't difficult at all" and
involved "mainly stretching and pulling."
Claimant immediately reported the incident to his
supervisor and continued to complete his shift that day.
However, for the next three days he was unable to work.
Claimant first sought medical treatment from Dr. Frank Pollock,
Jr., an orthopedist, on August 19, 1998. At that time, Dr.
Pollock noted that claimant's back became symptomatic while
"trying to lift a bottle at work." 1 Dr. Pollock diagnosed
claimant's condition as "degenerative disk disease" and
"bilateral sacroiliitis with degenerative changes in both
sacroiliac joints." In his September 16, 1998 medical report,
Dr. Pollock opined that claimant's injury was related to the
July 20, 1998 incident, stating the following:
1 At the hearing before the deputy commissioner, claimant admitted that Dr. Pollock's recorded history was inconsistent with the history of injury he had reported.
- 3 - I discussed again my belief that his injury was completely work related. He clearly had an acute exacerbation of pain in his sacroiliac joint after his injury which was not present prior to the injury.
Dr. Pollock saw claimant for follow-up treatment on October 14
and November 11, 1998, and thereafter released him to work
without restrictions.
Claimant filed a claim for benefits. Following a hearing,
a deputy commissioner denied his claim, concluding that
claimant's injury did not arise out of his employment. The
deputy commissioner found that "no workplace condition was
causative" and that he "became symptomatic while assuming an
upright position, a maneuver which he admitted was not made more
difficult by his immediate work environment."
Claimant appealed, and the commission reversed. The
commission concluded that claimant's injury was causally related
to his work because his "act of straightening and standing was
appurtenant to his performing work required as a condition of
his employment." It found that "the risk of this injury was
within the ambit of risks to which the claimant was exposed as a
result of the employment . . . ." Although the commission found
that claimant's injury arose out of his employment and that he
was entitled to medical benefits, it denied disability
compensation benefits because claimant "failed to establish that
- 4 - the period of his disability exceeded the [seven-day] statutory
waiting period." 2
II.
Employer contends the commission erred in finding that
claimant's injury arose out of his employment. Because claimant
testified that the work was not difficult or physically
demanding, employer contends the commission was bound by that
testimony and improperly found that claimant's injury was caused
by strenuous activity. Finally, employer argues that Dr.
Pollock's opinion regarding causation is insufficient because it
was not based upon an accurate understanding of claimant's
injury.
"An 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." Grove v. Allied Signal, Inc., 15 Va. App. 17, 19,
421 S.E.2d 32, 34 (1992) (citations omitted). "[T]he arising
out of test excludes 'an injury which comes from a hazard to
which the employee would have been equally exposed apart from
the employment. The causative danger must be peculiar to the
work, incidental to the character of the business, and not
independent of the master-servant relationship.'" County of
2 The commission affirmed the deputy commissioner's conclusion that claimant's back injury was not a compensable occupational disease under Code § 65.2-400.
- 5 - Chesterfield v. Johnson, 237 Va. 180, 183-84, 376 S.E.2d 73, 75
(1989) (quoting United Parcel Serv. v. Fetterman, 230 Va. 257,
258-59, 336 S.E.2d 892, 893 (1985)).
This case is controlled by our decision in Richard E.
Brown, Inc. v. Caporaletti, 12 Va. App. 242, 402 S.E.2d 709
(1991). There, the claimant sustained an acute lumbosacral
strain while "straightening up after working in a bent over
position . . . ." Id. at 244, 402 S.E.2d at 710. We held that
the claimant's need to work in the bent over position and to
extract himself from that position was a "'hazard to which [the
claimant] would not have been equally exposed apart from the
conditions of the employment.'" Id. at 245, 402 S.E.2d at 711
(quoting First Federal Savings & Loan v. Gryder, 9 Va. App. 60,
65, 383 S.E.2d 755, 759 (1989)).
In the instant case, the evidence established that claimant
was working in a "crouched" position, arranging forty-pound
water bottles. After completing this activity, claimant
"straightened up" from the squatting position and felt a
"burning sensation" in his "lower back toward [his] hip area."
The commission found that "the claimant's act of straightening
and standing was appurtenant to his performing work required as
a condition of his employment." Because credible evidence
supports this finding, we affirm the commission's decision that
the workplace conditions constituted a hazard that was peculiar
to claimant's work.
- 6 - Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 382
S.E.2d 305 (1989), cited by employer, does not mandate a
different conclusion. In Barbour, we held that a claimant is
required "to show that the conditions of the workplace or that
some significant work related exertion caused the injury." Id.
at 484, 382 S.E.2d at 306. "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.
Virginia has rejected the "positional risk" doctrine which
compensates employees who are injured on the job regardless of
whether the injury was caused by a risk or condition of the
workplace. See Johnson, 237 Va. at 185, 376 S.E.2d at 75-76.
To the contrary, the commission in the present case
concluded that "the risk of [claimant's] injury was within the
ambit of risks to which the claimant was exposed as a result of
the employment . . . ." Significantly, the commission found
that claimant's "testimony describing the task reasonably
suggests strenuous activity immediately preceding his attempt to
stand." Unlike the situation in Barbour, where the claimant was
injured while bending down to pick up a piece of plastic pipe,
credible evidence supports the commission's finding that
claimant's injury was "caused by [the] work related risk" of
repeatedly bending and lifting the water bottles. Barbour, 8
Va. App. at 484, 382 S.E.2d at 306.
- 7 - Nevertheless, employer urges us to reverse the decision on
the ground that claimant was bound by his uncontradicted
testimony that the work "wasn't difficult at all." In support
of this error, employer relies upon Massie v. Firmstone, 134 Va.
450, 462, 114 S.E. 652, 655-56 (1922), where the Supreme Court
stated that a claimant's "case can rise no higher than [his]
uncontradicted testimony." However, the Massie doctrine applies
only to a party litigant's statements of fact and does not apply
to "mere expressions of opinion." Braden v. Isabell K. Horsley
Real Estate, Ltd., 245 Va. 11, 16, 425 S.E.2d 481, 484 (1993).
Here, claimant's statements that he thought the work was
not "difficult" or "hard" were mere expressions of opinion, and
the Massie rule does not apply in this context. See, e.g.,
Ravenwood Towers, Inc. v. Woodyard, 244 Va. 51, 55, 419 S.E.2d
627, 629-30 (1992) (plaintiff's testimony that she thought "she
could have seen" was "no more than an impression--an expression
of opinion"); Ford Motor Co. v. Bartholomew, 224 Va. 421, 431,
297 S.E.2d 675, 680 (1982) (plaintiff's testimony that she
thought the car was "in park" was simply her "impression" or
opinion). Additionally, the rule does not apply to "an adverse
statement standing in isolation from the litigant's testimony as
a whole" which explains the facts. Baines v. Parker and
Gladding, 217 Va. 100, 105, 225 S.E.2d 403, 407 (1976).
Considering claimant's testimony in its entirety and in
context with all the other evidence before the commission, we
- 8 - cannot say the commission erred in finding that claimant's
injury arose out of his employment. 3 Accordingly, we affirm.
Affirmed.
3 Employer's argument that the medical evidence regarding causation was insufficient because Dr. Pollack's opinion was not based upon an accurate understanding of claimant's injury is without merit. Claimant admitted that Dr. Pollack's recorded history was inconsistent with the history he reported, and the commission made note of this "misunderstanding." In his September 16, 1998 medical report, Dr. Pollack reiterated his opinion that the "injury was completely work related" and that claimant suffered pain in his joint "after his injury which was not present prior to the injury." Thus, credible evidence supports the commission's finding that the medical documentation established causation.
- 9 -