Riverside Regional Medical Ctr v. Tyree

• Court: Court of Appeals of Virginia
• Decided: March 24, 1998
• Docket: 2439971
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Baker and Bray Argued at Norfolk, Virginia

RIVERSIDE REGIONAL MEDICAL CENTER/ RIVERSIDE HEALTH SYSTEM AND HEALTHCARE PROVIDERS GROUP SELF-INSURANCE ASSOCIATION MEMORANDUM OPINION * BY v. Record No. 2439-97-1 CHIEF JUDGE JOHANNA L. FITZPATRICK MARCH 24, 1998 DOROTHY JEAN TYREE

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Linda M. Ziegler (Crews & Hancock, PLC, on briefs), for appellants.

Paul H. Wilson (Wilson & Wilson, P.C., on brief), for appellee.

Riverside Regional Medical Center/Riverside Health System

and Healthcare Providers Group Self-Insurance Association

("employer") appeal a decision of the Workers' Compensation

Commission awarding benefits to Dorothy Jean Tyree ("claimant").

Employer contends that the commission erred in: (1) finding

that claimant sustained an injury by accident arising out of her

employment on May 23, 1996; (2) refusing to allow Leo Cantor, an

expert witness, to testify regarding certain information related

to the condition of the doorway threshold where claimant tripped;

and (3) finding that claimant proved she sustained an injury to

her right knee caused by the May 23, 1996 tripping incident.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Finding no error, we affirm.

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).

The May 23, 1996 Incident

Claimant worked for employer as a phlebotomist. On May 23,

1996, during the course of her employment at approximately 3:15

p.m., claimant walked out of a doorway leading from the carpeted

office of Smith Kline onto the linoleum floor in the hallway. As

she did so, she caught her tennis shoe on a metal strip in the

doorway, which separated the carpeted area from the linoleum

floor, causing her to trip and twist her right knee. She did not

fall to the floor because she was able to catch herself using a

handle on the wall. She felt immediate pain in her knee and

could not put full pressure on the knee after she tripped. There

were no witnesses to the tripping incident. Claimant immediately

reported the injury to her supervisor. Based upon photographs of the metal strip taken by claimant

on May 24, 1996, she testified that the strip looked the same the

next day, except that it looked as if it had been hammered down

in the area that had been "sticking up" the day before. Claimant

came to this assumption based upon the appearance of dent marks

on the metal strip near the area where she tripped.

Leo J. Cantor, a professional engineer, testified on behalf

of employer as an expert witness. On August 27, 1996, Cantor

-2- examined and photographed the metal strip. Cantor measured the

lip of the metal strip, finding 5/16 of an inch differential

between the linoleum floor in the hallway and the carpeted floor

in Smith Kline. Cantor stated that the height differential from

inside the Smith Kline lab into the hallway, claimant's path

during the tripping incident, was so negligible that he could not

measure it without a micrometer.

Marilyn Scott, a phlebotomist employed by Smith Kline on May

23, 1996, saw claimant come into the Smith Kline lab at

approximately 3:15 p.m., retrieve a paper from the fax machine,

and exit the lab. Scott stated that claimant did not trip in the

doorway as she left the lab. Scott saw claimant walking down the

hallway approximately fifteen to twenty minutes later. At that

time, claimant was walking normally and did not limp. Felicia Wilkins, an employee of Smith Kline and Riverside,

testified that on May 23, 1996, she also saw claimant come into

the lab at 3:15 p.m. and leave the lab. Wilkins did not see

claimant trip in the doorway as she left. When Wilkins saw

claimant fifteen to twenty minutes later, claimant was walking

normally without a limp.

Medical Evidence

Dr. John Andrew Kona, an orthopedic surgeon, treated

claimant for knee problems before the May 23, 1996 incident.

Before May 23, 1996, claimant had undergone three surgical

reconstructions for a torn anterior cruciate ligament in her

-3- right knee. As of March 14, 1995, the date of Dr. Kona's last

examination of claimant's knees before her May 23, 1996 incident,

Dr. Kona concluded that claimant "had a little bit of laxity of

the ligament, but it was stable. She had a good exam for her

serviceable knee." Dr. Kona did not place claimant under any

physical restrictions at that time.

Dr. Kona examined claimant next on May 24, 1996, the day

after the tripping incident. Claimant gave Dr. Kona a history of

"slipp[ing] on the edge of a carpet that connects with the

linoleum in the work space and twist[ing] her right knee." At

that time, Dr. Kona found a small amount of laxity in the

anterior cruciate ligament, incomplete extension of the knee, and

some tenderness on the lateral side of the knee joint. A June 3,

1996 MRI did not indicate any new damage to claimant's knee. On June 21, 1996, claimant underwent arthroscopy, which

revealed a partial tear of the anterior cruciate ligament graft,

scar tissue that had been generated inside the knee, and

degenerative joint disease. Dr. Kona removed some scar tissue

during the procedure. Dr. Kona opined that the injury inside

claimant's knee was consistent with a traumatic event, such as

that described by claimant. While Dr. Kona acknowledged that the

stretching of the January 1994 graft and the fibers coming loose

in claimant's knee could be consistent with "use over time," he

believed that claimant's injury was more consistent with a

traumatic event. On July 8, 1996, Dr. Kona reported that

-4- claimant's knee was much better, and he released her to work

without restrictions.

Dr. M.J. Bosse, an orthopedic surgeon, who reviewed

claimant's medical records at employer's request, opined on

October 19, 1996, that the June 1996 arthroscopy demonstrated

that claimant's knee had not been injured by the tripping

incident. Dr. Bosse further opined that claimant's current

symptoms were related to her pre-May 23, 1996 condition. Dr. Kerry F. Nevins, an orthopedist who also reviewed

claimant's medical records for employer, opined on November 11,

1996 that the May 23, 1996 injury had little, if any, effect on

claimant's right knee condition. Dr. Nevins opined that "[a]t

best, it would be considered a minor aggravation of a

pre-existing condition."

Dr. Sheldon L. Cohn, an orthopedic surgeon, who examined

claimant on December 20, 1996 and reviewed the histories

contained in the other independent medical exam reports, opined

that when [claimant] slipped at work, she sustained a pivot shifting incident of her knee, which aggravated her arthritic condition, thereby causing her to undergo arthroscopic debridement of her knee. I believe that she recovered from that exacerbation on or about July 8, 1996. I do not believe any of her present impairment, symptoms or any restrictions are due to the injury at work on May 23, 1996. I do feel that the arthroscopic intervention and treatment for knee between May 23, 1996, and July 8, 1996, were due to the injury she sustained at work.

-5- I.

"A finding by the Commission that an injury [did or did not

arise] out of and in the course of employment is a mixed finding

of law and fact and is properly reviewable on appeal." Dublin

Garment Co., Inc. v. Jones, 2 Va. App. 165, 167, 342 S.E.2d 638,

638 (1986).

"To prove the 'arising out of' element, [claimant] must show

that a condition of the workplace either caused or contributed to

her fall." Southside Virginia Training Ctr. v. Shell, 20 Va.

App. 199, 202, 455 S.E.2d 761, 763 (1995). "[O]ur inquiry must

be whether credible evidence supports a finding that a defect in

the [doorway threshold] caused [claimant] to . . . [trip and

twist her knee]." Id. at 203, 455 S.E.2d at 763.

Here, claimant's undisputed testimony provides credible

evidence to support the commission's factual findings that

claimant caught her tennis shoe on a metal strip that was

"sticking up" from the floor, causing her to trip and injure her

knee. Based upon these findings, the commission could reasonably

infer that the defect in the metal strip caused claimant's

accident, which resulted in her injuries. "Where reasonable

inferences may be drawn from the evidence in support of the

commission's factual findings, they will not be disturbed by this

Court on appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App.

398, 404, 374 S.E.2d 695, 698 (1988). Here, the evidence

supported an inference that a condition of the workplace either

-6- caused or contributed to claimant's injuries.

"In determining whether credible evidence exists, the

appellate court does not retry the facts, reweigh the

preponderance of the evidence, or make its own determination of

the credibility of the witnesses." Wagner Enters., Inc. v.

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). As fact

finder, the commission was entitled to accept claimant's

testimony and to reject the testimony of Scott and Wilkins.

Moreover, the commission was entitled to give little probative

weight to Cantor's testimony. He did not examine the metal strip

until August 1996, almost three months after claimant's tripping

incident. No evidence showed that the metal strip was in the

same condition in August 1996 as it was at the time of claimant's

tripping incident. In fact, claimant testified, without

contradiction, that when she photographed the metal strip the day

after the accident, it appeared to have been hammered down in the

area where she tripped. Because credible evidence supports the commission's finding

that a condition of claimant's workplace either caused or

contributed to her injury, we will not disturb the commission's

decision holding that claimant's injury arose out of her

employment.

II.

"The standard of review on appeal where the admissibility of

expert testimony is challenged is whether the trial court abused

-7- its discretion." Kern v. Commonwealth, 2 Va. App. 84, 86, 341

S.E.2d 397, 398 (1986).

The pertinent issue in this case was whether the condition

of the doorway threshold on May 23, 1996, at the time of the

tripping incident, created an employment-related hazard which

caused claimant's injuries. Cantor's excluded testimony about

whether the threshold complied with applicable codes when he

examined it in August 1996, three months after the accident, was

irrelevant to this issue, especially in light of claimant's

testimony that the metal strip was not in the same condition the

day after her accident as it had been at the time of her injury. See Runyon v. Geldner, 237 Va. 460, 463-64, 377 S.E.2d 456,

458-59 (1989) (trial court should refuse to admit expert

testimony absent proof of similarity of conditions existing at

time of expert's tests and at time relevant to facts in issue).

In addition, Cantor's excluded testimony that the metal

strip posed a risk that was common to the general public and did

not pose a risk arising out of claimant's employment expressed

opinions as to the "ultimate issues" to be decided by the

commission, and, therefore, was inadmissible. See Davis v.

Commonwealth, 12 Va. App. 728, 731, 406 S.E.2d 922, 923 (1991).

See generally Code § 8.01-401.1 (opinion testimony of experts).

Accordingly, the commission did not abuse its discretion in

excluding Cantor's testimony.

III.

-8- "The actual determination of causation is a factual finding

that will not be disturbed on appeal if there is credible

evidence to support the finding." Ingersoll-Rand Co. v. Musick,

7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989). "Questions

raised by conflicting medical opinions must be decided by the

commission." Penley v. Island Creek Coal Co., 8 Va. App. 310,

318, 381 S.E.2d 231, 236 (1989).

In finding that claimant sustained her burden of proving

that the tripping incident caused an injury to her right knee,

the commission accepted the opinion of the treating physician,

Dr. Kona. Dr. Kona conceded that claimant's knee problems could

have arisen from degenerative changes. However, he believed that

claimant's injuries were more consistent with a traumatic event,

such as the May 23, 1996 incident she described. Dr. Cohn agreed

with Dr. Kona's opinions. The opinions and medical records of

Drs. Kona and Cohn, coupled with the undisputed evidence that

claimant had not sought medical treatment for any right knee

problems between March 1995 and the date of the accident, provide

credible evidence to support the commission's decision. "The

fact that there is contrary evidence in the record is of no

consequence if there is credible evidence to support the

commission's finding." Wagner, 12 Va. App. at 894, 407 S.E.2d at

35.

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

Affirmed.

-9-