MD & VA Milk Produce v. Rena A. Parker

• Court: Court of Appeals of Virginia
• Decided: February 25, 1997
• Docket: 2418961
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

MARYLAND & VIRGINIA MILK PRODUCE AND LUMBERMENS MUTUAL CASUALTY COMPANY MEMORANDUM OPINION * v. Record No. 2418-96-1 PER CURIAM FEBRUARY 25, 1997 RENA A. PARKER

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(William W. Nexsen; William W. Tunner; Stackhouse, Smith & Nexsen, on brief), for appellants. (Richard W. Hudgins, on brief), for appellee.

Maryland & Virginia Milk Produce and its insurer

(hereinafter collectively referred to as "employer") contend that

the Workers' Compensation Commission erred in finding that Rena

A. Parker proved that she sustained an injury by accident arising

out of her employment on November 20, 1995. 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. Rule 5A:27.

"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 Plumbing Serv. v. Barbour, 8 Va. App. 482,

483, 382 S.E.2d 305, 305 (1989). Factual findings made by the

commission will be upheld on appeal if supported by credible

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512,

515, 382 S.E.2d 487, 488 (1989).

On appeal, we view the evidence in the light most favorable

to the prevailing party below. R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So

viewed, the evidence established that, on November 20, 1995,

Parker was repairing a company truck she had painted the previous

day. Four of Parker's co-workers assisted her by placing the

truck bed onto the chassis. In order to insert bolts to hold the

truck bed in place, Parker had to align the truck bed on the

chassis. While in a squatting and bending position and while

holding the 100 to 150 pound truck bed in her left hand, Parker

moved, pulled, jerked, and lifted the truck bed in order to

realign the bolts to the holes. It took several minutes to

complete this task. Once Parker realigned the bolts, she stood

up and felt back pain. Her back pain worsened during that day. Histories of the incident contained in the medical records

corroborated Parker's testimony. Parker's physicians diagnosed a

herniated disc, which eventually required surgical treatment.

The commission found that Parker's employment caused her to

assume "[t]he awkward physical movement of squatting, lifting the

heavy truck bed and placing the bolts" and that those activities

caused her back injury. These findings are supported by credible

evidence, including Parker's testimony and the medical records.

Therefore, they will not be disturbed on appeal.

- 2 - This case is controlled by our decision in Richard E. Brown,

Inc. v. Caporaletti, 12 Va. App. 242, 402 S.E.2d 709 (1991). In

Caporaletti, the claimant "was installing a 100 pound furnace

. . . when he injured himself. Caporaletti lowered the furnace

to its side and then leaned over it for approximately four to

five minutes, cutting and fitting the furnace into place. He

then attempted to stand up but was unable to do so." Id. at 243,

402 S.E.2d at 710. In Caporaletti, we recognized that the

gradual lowering of the 100 pound furnace and the accompanying

work activities in a bent over position over the course of

several minutes precipitated Caporaletti's back injury. Id. at

244, 402 S.E.2d at 710. We held that the "identifiable incident

of straightening up after working in a bent over position

resulted in [the claimant's injury]." Id. We also held that

Caporaletti's lowering of the 100 pound furnace and his working

in a bent over position involved risks peculiar to the conditions

of his employment. Id. at 245, 402 S.E.2d at 711.

In this case, as in Caporaletti, the evidence proved that the conditions of Parker's employment required that she maneuver

a heavy item while in an awkward squatting/bending position over

a period of several minutes. Upon rising from this position, she

felt back pain. As in Caporaletti, Parker "was not simply

bending over in a normal manner with no other contributing

factors." Id. at 245, 402 S.E.2d at 711. Rather, Parker, like

Caporaletti, maneuvered a heavy object in a bent over position

- 3 - over the course of several minutes. Parker's work involved

significant exertion while in an awkward position. Therefore, we

agree with the commission's finding that a causal connection

existed between the conditions under which employer required

Parker to perform her work and her resulting back injury.

Employer cites Barbour and United Parcel Serv. v. Fetterman,

230 Va. 257, 336 S.E.2d 892 (1985), in support of its argument.

However, in Barbour and Fetterman, unlike this case, there was no

evidence that the conditions of the claimants' workplace

contributed to cause their injuries. Barbour simply bent over to

pick up a piece of plastic pipe after working for one hour. Barbour, 8 Va. App. at 483, 382 S.E.2d at 305. Fetterman merely

bent over to tie his shoe and felt acute back pain. Fetterman,

230 Va. at 258, 336 S.E.2d at 892.

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

Affirmed.

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