COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Annunziata Argued at Alexandria, Virginia
SUPER FRESH/GREAT ATLANTIC & PACIFIC TEA COMPANY MEMORANDUM OPINION * BY v. Record No. 0924-96-4 JUDGE ROSEMARIE ANNUNZIATA OCTOBER 29, 1996 HILDA T. ROBINSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Mark M. Caldwell, III (Ralph L. Whitt, Jr; Sands, Anderson, Marks & Miller, on brief), for appellant.
Craig A. Brown (James F. Green; Ashcraft & Gerel, on brief), for appellee.
This matter came before the commission on the application of
claimant, Hilda T. Robinson, seeking temporary total disability
benefits as the result of an alleged injury by accident arising
out of and in the course of her employment with employer, Super
Fresh Food Markets, Inc. The deputy commissioner entered an
award in behalf of claimant, which the full commission affirmed.
Employer appeals, contending the commission erred in finding
claimant suffered a compensable injury by accident. We disagree
and affirm.
I.
Claimant testified as follows. Claimant worked as a cashier
in employer's store. Between 1:00 p.m. and 3:00 p.m. on August
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. 9, 1994, claimant used her right arm to transfer a "suitcase" of
beer from the register area to a customer's shopping cart. In so
doing, claimant felt pain shoot quickly up her arm, across her
shoulder, up her neck, and to the top of her head. Claimant
completed her shift, working another sixty to ninety minutes and,
for the rest of the day, found she had to use her left arm to
support her right arm when she transferred heavy items into the
carts. Before she left work, claimant told Joanne Cochran,
employer's office personnel manager, she hurt her arm "[l]ifting
heavy containers and putting them into the cart." Claimant did
not know whether she told Cochran she injured her shoulder
lifting a particular container or whether she referred to
containers in general. Claimant phoned Cochran the following day
to tell Cochran her arm was still hurting and she would not be
coming to work. Cochran suggested that claimant see a doctor,
and she told claimant she would report the incident to Keith
Rankin, employer's safety supervisor. Rankin is the person to
whom work-related injuries are reported. On August 12, 1994,
claimant saw Dr. Frederick Griffith who directed claimant not to
return to work. Dr. Griffith referred claimant to Dr. James T.
Gable. Claimant related this information to employer who asked
claimant to report to them anything she learned from the doctors.
In response to inquiry from both doctors concerning what
happened, claimant stated that she was "lifting whatever the
customer buys to put into the cart."
- 2 - Employer's First Report of Accident reflects that claimant
sustained an injury on August 9, 1994 at 3:00 p.m. that was
reported August 11, 1994.
Dr. Griffith's August 12, 1994 office note states, in part: Mrs. Robinson developed a headache and while at work and doing a lot of lifting developed pain in her shoulder. Now it hurts to move her arm and has pain up in her neck. She has not had this problem before. . . . Has not had shoulder problems before. Doesn't remember any one specific injury.
Dr. Griffith's August 22, 1994 note states, in part: Continues to have pain in her shoulder. . . . She has never had problems before until it started bothering her that day at work when she was carrying things, although she doesn't remember traumatic incident with [sic] precipitated this.
In both an "Attending Physician's Report" and an August 30, 1994
letter to Dr. Griffith, Dr. Gable notes that claimant's injury
occurred while lifting cases at work.
On cross-examination, claimant testified that one specific
act caused her injury. She told Dr. Griffith she was lifting
heavy items in the course of her normal job duties and developed
pain. She could not recall whether she mentioned to Dr. Griffith
the particular "suitcase" of beer, although she thought she had
mentioned it. However, she admitted that if Dr. Griffith wrote
that she did not remember a specific injury, then she guessed she
told him that. She also admitted that she must have told Dr.
Griffith she did not remember a traumatic incident because that
is what he wrote. Claimant could not remember whether she told
- 3 - Dr. Griffith about a particular case of beer; however, her
present recollection was that she thought she had told him.
Joanne Cochran testified as follows. Claimant did not
report the incident on August 9, 1994. Claimant contacted
Cochran the next morning and told her she would not be at work
because her shoulder hurt. Claimant told Cochran she thought she
had slept on her shoulder wrong. Cochran asked if claimant's
condition was work-related, and claimant responded that it was
not. Claimant never told Cochran about a "suitcase" of beer and
never described a specific injury to Cochran. Cochran suggested
that claimant seek treatment because of her concern for claimant.
After claimant saw Dr. Griffith, she phoned Cochran and told her
the doctor said her condition was not work-related and that she
had not contacted Rankin because claimant thought her condition
was not job-related. Nonetheless, Cochran related claimant's
report to Rankin because Cochran was concerned the issue might
come up later. About two weeks later, claimant phoned Cochran
and told her the doctor said her condition was work-related. Rankin testified as follows. On August 11, Cochran told
Rankin that claimant was not coming to work because her shoulder
hurt but that her condition was not job-related. The following
day, claimant presented Rankin a bill from Dr. Griffith.
Claimant told Rankin that Dr. Griffith could not say whether her
condition was job-related, and claimant did not identify any
job-related incident. Nonetheless, Rankin kept the bill on file
- 4 - and discussed the incident with the store manager and regional
safety manager, who together decided not to file an accident
report.
"Upon viewing the claimant at the hearing," the deputy
commissioner found claimant's description of the accident
credible. The deputy commissioner noted that inconsistencies in
both the medical histories and in claimant's own explanations of
her condition existed because claimant often referred to "cases"
in addition to the one "pain-producing case." The deputy
commissioner also found claimant's submission of Dr. Griffith's
medical bill to Rankin contradicted Cochran's testimony that
claimant only reported she slept on her arm the wrong way and
that she was not advised of a potential work-related injury until
August 22. The deputy commissioner also found that Rankin would
not have consulted so extensively with the store manager and
regional manager about filing an accident report had employer
thought claimant's condition was not work-related. The deputy
commissioner found claimant suffered a compensable injury by
accident which resulted in her temporary total disability. The full commission affirmed the award. The commission
found the evidence demonstrates that claimant associated her
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COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Annunziata Argued at Alexandria, Virginia
SUPER FRESH/GREAT ATLANTIC & PACIFIC TEA COMPANY MEMORANDUM OPINION * BY v. Record No. 0924-96-4 JUDGE ROSEMARIE ANNUNZIATA OCTOBER 29, 1996 HILDA T. ROBINSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Mark M. Caldwell, III (Ralph L. Whitt, Jr; Sands, Anderson, Marks & Miller, on brief), for appellant.
Craig A. Brown (James F. Green; Ashcraft & Gerel, on brief), for appellee.
This matter came before the commission on the application of
claimant, Hilda T. Robinson, seeking temporary total disability
benefits as the result of an alleged injury by accident arising
out of and in the course of her employment with employer, Super
Fresh Food Markets, Inc. The deputy commissioner entered an
award in behalf of claimant, which the full commission affirmed.
Employer appeals, contending the commission erred in finding
claimant suffered a compensable injury by accident. We disagree
and affirm.
I.
Claimant testified as follows. Claimant worked as a cashier
in employer's store. Between 1:00 p.m. and 3:00 p.m. on August
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. 9, 1994, claimant used her right arm to transfer a "suitcase" of
beer from the register area to a customer's shopping cart. In so
doing, claimant felt pain shoot quickly up her arm, across her
shoulder, up her neck, and to the top of her head. Claimant
completed her shift, working another sixty to ninety minutes and,
for the rest of the day, found she had to use her left arm to
support her right arm when she transferred heavy items into the
carts. Before she left work, claimant told Joanne Cochran,
employer's office personnel manager, she hurt her arm "[l]ifting
heavy containers and putting them into the cart." Claimant did
not know whether she told Cochran she injured her shoulder
lifting a particular container or whether she referred to
containers in general. Claimant phoned Cochran the following day
to tell Cochran her arm was still hurting and she would not be
coming to work. Cochran suggested that claimant see a doctor,
and she told claimant she would report the incident to Keith
Rankin, employer's safety supervisor. Rankin is the person to
whom work-related injuries are reported. On August 12, 1994,
claimant saw Dr. Frederick Griffith who directed claimant not to
return to work. Dr. Griffith referred claimant to Dr. James T.
Gable. Claimant related this information to employer who asked
claimant to report to them anything she learned from the doctors.
In response to inquiry from both doctors concerning what
happened, claimant stated that she was "lifting whatever the
customer buys to put into the cart."
- 2 - Employer's First Report of Accident reflects that claimant
sustained an injury on August 9, 1994 at 3:00 p.m. that was
reported August 11, 1994.
Dr. Griffith's August 12, 1994 office note states, in part: Mrs. Robinson developed a headache and while at work and doing a lot of lifting developed pain in her shoulder. Now it hurts to move her arm and has pain up in her neck. She has not had this problem before. . . . Has not had shoulder problems before. Doesn't remember any one specific injury.
Dr. Griffith's August 22, 1994 note states, in part: Continues to have pain in her shoulder. . . . She has never had problems before until it started bothering her that day at work when she was carrying things, although she doesn't remember traumatic incident with [sic] precipitated this.
In both an "Attending Physician's Report" and an August 30, 1994
letter to Dr. Griffith, Dr. Gable notes that claimant's injury
occurred while lifting cases at work.
On cross-examination, claimant testified that one specific
act caused her injury. She told Dr. Griffith she was lifting
heavy items in the course of her normal job duties and developed
pain. She could not recall whether she mentioned to Dr. Griffith
the particular "suitcase" of beer, although she thought she had
mentioned it. However, she admitted that if Dr. Griffith wrote
that she did not remember a specific injury, then she guessed she
told him that. She also admitted that she must have told Dr.
Griffith she did not remember a traumatic incident because that
is what he wrote. Claimant could not remember whether she told
- 3 - Dr. Griffith about a particular case of beer; however, her
present recollection was that she thought she had told him.
Joanne Cochran testified as follows. Claimant did not
report the incident on August 9, 1994. Claimant contacted
Cochran the next morning and told her she would not be at work
because her shoulder hurt. Claimant told Cochran she thought she
had slept on her shoulder wrong. Cochran asked if claimant's
condition was work-related, and claimant responded that it was
not. Claimant never told Cochran about a "suitcase" of beer and
never described a specific injury to Cochran. Cochran suggested
that claimant seek treatment because of her concern for claimant.
After claimant saw Dr. Griffith, she phoned Cochran and told her
the doctor said her condition was not work-related and that she
had not contacted Rankin because claimant thought her condition
was not job-related. Nonetheless, Cochran related claimant's
report to Rankin because Cochran was concerned the issue might
come up later. About two weeks later, claimant phoned Cochran
and told her the doctor said her condition was work-related. Rankin testified as follows. On August 11, Cochran told
Rankin that claimant was not coming to work because her shoulder
hurt but that her condition was not job-related. The following
day, claimant presented Rankin a bill from Dr. Griffith.
Claimant told Rankin that Dr. Griffith could not say whether her
condition was job-related, and claimant did not identify any
job-related incident. Nonetheless, Rankin kept the bill on file
- 4 - and discussed the incident with the store manager and regional
safety manager, who together decided not to file an accident
report.
"Upon viewing the claimant at the hearing," the deputy
commissioner found claimant's description of the accident
credible. The deputy commissioner noted that inconsistencies in
both the medical histories and in claimant's own explanations of
her condition existed because claimant often referred to "cases"
in addition to the one "pain-producing case." The deputy
commissioner also found claimant's submission of Dr. Griffith's
medical bill to Rankin contradicted Cochran's testimony that
claimant only reported she slept on her arm the wrong way and
that she was not advised of a potential work-related injury until
August 22. The deputy commissioner also found that Rankin would
not have consulted so extensively with the store manager and
regional manager about filing an accident report had employer
thought claimant's condition was not work-related. The deputy
commissioner found claimant suffered a compensable injury by
accident which resulted in her temporary total disability. The full commission affirmed the award. The commission
found the evidence demonstrates that claimant associated her
problem with work activities. It refused to place determinative
reliance on the medical reports and, instead, deferred to the
deputy commissioner's resolution of what it considered to be a
credibility matter.
- 5 - II.
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. Morris, 238 Va. 578, 589, 385 S.E.2d
858, 865 (1989). A gradually incurred injury is not an "injury
by accident" within the meaning of the Act. Middlekauff v.
Allstate Ins. Co., 247 Va. 150, 154, 439 S.E.2d 394, 397 (1994).
Thus, where the evidence demonstrates that a condition resulted
from cumulative trauma rather than an identifiable event, the
condition is not an "injury by accident." See, e.g., The Lane
Co., Inc. v. Saunders, 229 Va. 196, 199-200, 326 S.E.2d 702,
703-04 (1985). Furthermore, to be compensable, a claimant's
disability must have been caused by the "injury by accident."
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).
Here, employer contends that the commission's finding that
claimant experienced "an identifiable incident or sudden
precipitating event" is not supported by credible evidence.
Employer also assails the commission's findings of causation at
both levels. It argues the evidence fails to support the finding
that the work-related event resulted in "an obvious sudden
mechanical or structural change in [claimant's] body." It also
argues the evidence fails to support the finding that the
- 6 - work-related event caused her disability.
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. A.
Claimant's testimony clearly points to "an identifiable
incident or sudden precipitating event." She associates the
onset of her condition with her transfer of a particular
"suitcase" of beer to the shopping cart of a particular customer.
commissioner found claimant's description of the accident
credible. We agree with employer that the record contains other
evidence which would support a finding that claimant never
identified the lifting of a particular case of beer. However,
the fact that contrary evidence may appear in the record "is of
no consequence if there is credible evidence to support the
commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va.
App. 890, 894, 407 S.E.2d 32, 35 (1991).
We agree with employer that the commission was not
necessarily bound by the deputy commissioner's finding that
- 7 - claimant's testimony was credible. Indeed, the commission could
have reversed that finding of credibility if it articulated a
reasonable basis for doing so. See, e.g., Goodyear Tire & Rubber
v. Pierce, 9 Va. App. 120, 123, 384 S.E.2d 333, 335 (1989). The
commission, however, affirmed the deputy commissioner's finding.
We find no basis to conclude that the commission erred by
not reversing the deputy commissioner's credibility finding. The
deputy commissioner not only found claimant credible, it found
employer's witnesses incredible based on inconsistencies in their
testimony and inconsistencies in the actions they took at the
time of the incident. Furthermore, although the histories
reflected in claimant's medical records do not disclose a
specific lifting incident, that fact alone is not sufficient to
support the conclusion that claimant's hearing testimony was
inherently incredible as a matter of law. Cf. Dollar General
Store v. Cridlin, 22 Va. App. 171, 177, 468 S.E.2d 152, 155
(1996) (medical reports reflect results of physical examination
and do not purport to establish cause of injury).
In short, the commission's finding that claimant experienced
an "identifiable incident or sudden precipitating event" is
supported by credible evidence. Accordingly, we affirm that
finding.
B.
Relying, in part, on Reserve Life Ins. Co. v. Hosey, 208 Va.
568, 159 S.E.2d 633 (1968), employer argues that the commission
- 8 - must rely on medical evidence to determine whether the
"identifiable incident" resulted in a "an obvious sudden
mechanical or structural change in the body" and whether, if it
did, the "injury by accident" caused the disability. We
disagree. Hosey does not support employer's assertion. See
Cridlin, 22 Va. App. at 176, 468 S.E.2d at 154. Moreover, as
this Court stated in Cridlin,
"To appraise the true degree of
indispensability which should be accorded
medical testimony, it is first necessary to
dispel the misconception that valid awards
can stand only if accompanied by a definite
medical diagnosis. True, in many instances
it may be impossible to form a judgment on
the relation of the employment to the injury,
or relation of the injury to the disability,
without analyzing in medical terms what the
injury or disease is. But this is not
invariably so. In appropriate circumstances,
awards may be made when medical evidence on
these matters is inconclusive, indecisive,
fragmentary, inconsistent, or even
nonexistent." Id. at 177, 468 S.E.2d at 154-55 (quoting A. Larson, The Law of Workmen's Compensation § 79.51(c) (1995) (citations omitted)).
- 9 - Here, claimant's testimony clearly points to "an obvious
sudden mechanical or structural change in the body." Claimant
testified that, upon lifting the "suitcase" of beer, she felt
pain shoot quickly up her arm, across her shoulder, up her neck,
and to the top of her head. We find no evidence in the record to
suggest claimant had merely exacerbated a preexisting condition.
On the contrary, claimant's medical reports support a finding
that claimant had "never had problems before until . . . that day
at work." Employer argues the absence of evidence in the medical
reports demonstrating an "identifiable incident" shows claimant
did not suffer "an obvious sudden mechanical or structural change
in [her] body." However, our finding that credible evidence
supports the commission's finding that an identifiable incident
occurred disposes of this argument.
In short, the commission's finding that the identifiable
incident resulted in "an obvious sudden mechanical or structural
change in [claimant's] body" is supported by credible evidence.
Accordingly, we affirm that finding.
C.
Finally, the commission's finding that claimant's "injury by
accident" caused her disability is supported by credible
evidence. Claimant's medical records provide clear evidence that
the disability for which her physicians treated her was caused by
the work-related event. Cf. Hosey, 208 Va. at 570, 159 S.E.2d at
- 10 - 634 ("While the doctors' reports do not specifically spell out in
so many words that claimant's work activity was the producing
cause of the injury, their responses to the questions asked on
the forms made it very plain that such was their opinion").
Indeed, there is no evidence in the record to support a contrary
finding that some other event caused claimant's disability.
For the foregoing reasons, the award of the commission is
affirmed.
- 11 -