Revco Drug Stores v. Diane Bruening

• Court: Court of Appeals of Virginia
• Decided: November 19, 1996
• Docket: 0720963
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata Argued at Charlottesville, Virginia

REVCO DRUG STORES, INC. and LIBERTY MUTUAL FIRE INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No. 0720-96-3 JUDGE ROSEMARIE ANNUNZIATA NOVEMBER 19, 1996 DIANE BRUENING

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Beth M. Coyne (Fowler, Griffin, Coyne & Coyne, on briefs), for appellants.

Terry L. Armentrout (Roger Ritchie & Partners, on brief), for appellee.

Claimant, Diane Bruening, filed a claim for benefits,

alleging an injury by accident occurring February 2, 1994 and

arising out of and in the course of her employment with employer,

Revco Drug Stores, Inc. The deputy commissioner denied benefits,

and the full commission reversed. Employer appeals.

To be compensable, a claimant's disability must have been

caused by an injury by accident arising out of and in the course

of employment. See Southall v. Reams, Inc., 198 Va. 545, 548, 95

S.E.2d 145, 147 (1956); Ratliff v. Rocco Farm Foods, 16 Va. App.

234, 239, 429 S.E.2d 39, 42-43 (1993). To establish an "injury

by accident," a claimant must prove "an identifiable incident or

sudden precipitating event [that results] in an obvious sudden

mechanical or structural change in the body." E.g., Morris v. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989). To prove

an injury "arose out of" employment, a claimant must show that a

condition of the workplace either caused or contributed to the

accident. See, e.g., Southside Va. Training Center v. Shell, 20

Va. App. 199, 202, 455 S.E.2d 761, 763 (1995).

On appeal, we construe the evidence in the light most

favorable to claimant, the prevailing party below. See, e.g.,

R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390

S.E.2d 788, 788 (1990). We are bound by the commission's

findings of fact if they are supported by credible evidence. E.g., Continental Forest v. Wallace, 1 Va. App. 72, 73-74, 334

S.E.2d 149, 150 (1985). In light of these principles, we affirm

the decision of the commission.

There is no dispute that claimant has been disabled since

February 21, 1994. Prior to that time, claimant worked as a

clerk in employer's store. Claimant's unrebutted testimony

established that on February 2 she tripped and fell over the step

leading into the pharmacy area of employer's store. At the time,

claimant was carrying a two foot by one-and-one-half foot "tote,"

weighing approximately twenty pounds, which obstructed claimant's

view of the floor and her feet. The "tote" contained

pharmaceutical inventory that claimant intended to stock on the

pharmacy shelves. Pain developed in claimant's knee the

following day. The day after that, February 4, claimant felt a

"pop" in her knee as she descended the stairs from the office

- 2 - area of employer's store. Claimant reported both the February 2

trip and the February 4 incident to her treating physician, Dr.

Harrison, as well as to Dr. McCue to whom Dr. Harrison referred

her. Claimant also related both incidents to the claims

representative of employer's insurance carrier. A physical

therapy evaluation conducted the following Fall describes the

"pop" claimant felt in her knee as a symptom of the February 2

trip. Although Dr. Harrison initially opined that claimant's

injuries were proximately caused by her "tripping over the step

at work on February 4, 1994," he later stated that "the date of

injury should be February 2, 1994 when she tripped up the steps." Employer contends that claimant's injury occurred on

February 4. This contention is without merit. The evidence

clearly supports the commission's decision. The trip claimant

described as occurring on February 2 was unquestionably a sudden,

precipitating event. Although Dr. Harrison was not certain

whether the mechanical change to claimant's body occurred on

February 2 or 4, Dr. Harrison clearly identified claimant's trip

as the causative event, on whatever day the trip occurred.

Employer also contends that the February 4 event did not

"arise out of" claimant's employment. However, claimant does not

suggest that the February 4 event "arose out of" her employment.

Likewise, the commission did not find the February 4 event to be

a compensable injury by accident. Dr. Harrison's opinion, as

well as the reports of Dr. McCue and the physical therapist,

- 3 - clearly establish the causal link between claimant's injury by

accident on February 2 and her disability. Claimant's injury

clearly "arose out of" her employment; there can be no doubt that

the carrying of the "tote" on February 2 was a condition of

employment which at least contributed, if not caused, her

accident.

For the foregoing reasons, we affirm the decision of the

commission.

Affirmed.

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