Tultex Corporation v. Edward Santuk

• Court: Court of Appeals of Virginia
• Decided: February 27, 1996
• Docket: 1526952
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Coleman and Elder Argued at Richmond, Virginia

TULTEX CORPORATION MEMORANDUM OPINION * BY v. Record No. 1526-95-2 JUDGE LARRY G. ELDER FEBRUARY 27, 1996 EDWARD SANTUK

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Martha White Medley (Daniel, Vaughan, Medley & Smitherman, P.C., on brief), for appellant. Peter McIntosh (Michie, Hamlett, Lowry, Rasmussen & Tweel, P.C., on brief), for appellee.

Tultex Corporation (employer) appeals the commission's award

of benefits to Edward Santuk (claimant). Employer asserts that

claimant failed to prove that he suffered an injury by accident

which arose out of and in the course of his employment and which

was causally related to his disability. For the following

reasons, we affirm the commission's decision.

Employer employed claimant as a "dryer doffer," which

required him to stand behind a dryer and move "trucks" as they

filled with clothes. On May 31, 1994, claimant slipped on a

puddle of water while pushing a hand truck at his workplace. As

he slipped, claimant felt a "little jerk" in his right hip.

Claimant felt pain the next day and went to the company nurse for

pain medication and ointment. After returning to work from a

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. scheduled break from June 2, 1994 to June 4, 1994, claimant told

employer that his pain had increased.

Dr. Jacob Moll examined claimant on June 13, 1994. Dr. Moll

reported a history of increasing pain for two weeks after the

workplace incident, diagnosed a hip strain, and recommended light

duty work. Claimant returned to light duty work on June 13,

1994. Dr. Eric Korsch examined claimant on July 28, 1994,

diagnosed a recurrent disk problem on the right side at the L5-S1

level and ordered an MRI. After claimant's pain became disabling

in August 1994, an MRI performed by Dr. Korsch revealed

degenerative disease involving the L4-5 and L5-S1 levels, a large

herniated disk on the right at the L4-5 level, and a small

herniated disk at L5-S1, "which appears to be recurrent." On

September 20, 1994, Dr. David Kelly performed a lumbar

laminectomy with decompression of the nerve root on the right at

the L5-S1 level. On January 3, 1995, claimant returned to his

pre-injury job. Medical records and testimony reveal claimant had back

surgery in 1982 while employed by another employer. However,

from 1982 through the early 1990s, claimant performed full duty

work and missed no work due to back pain. After re-injuring his

back on September 25, 1992, while working for employer, doctors

diagnosed claimant with chronic low back pain. On December 3,

1992, Dr. Moll stated that claimant had returned to normal

strength and functioning and stated that the low back pain had

-2- been "resolved."

Claimant applied for temporary partial disability benefits

from June 23, 1994 to July 28, 1994, and temporary total benefits

from July 29, 1994 through December 30, 1994. The deputy

commissioner denied claimant benefits and found that claimant

failed to prove that he experienced an obvious, sudden mechanical

or structural change in the body and failed to prove a causal

connection between the incident claimed and the bodily change.

The full commission reversed the deputy commissioner's decision

and awarded temporary total benefits from July 29, 1994 through

December 30, 1994. When there is credible evidence to support the commission's

decision, we must affirm the decision on appeal. Rucker v.

Thrift Transf., Inc., 1 Va. App. 417, 419, 339 S.E.2d 561, 562

(1986). We construe the evidence in the light most favorable to

the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins,

10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Unless we can

say as a matter of law that claimant's evidence failed to sustain

his burden of proof, the commission's finding is binding and

conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va.

697, 699, 173 S.E.2d 833, 835 (1970).

In order to prove an injury by accident as required by Code

§ 65.2-101, a claimant must point to an "identifiable incident or

sudden precipitating event" that results "in an obvious sudden

mechanical or structural change in the body." Morris v. Morris,

-3- 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989); see Chesterfield

County v. Dunn, 9 Va. App. 475, 476, 389 S.E.2d 180, 181 (1990).

The commission found that claimant sustained an injury by

accident arising out of and in the course of his employment on

May 31, 1994, when he slipped in a puddle of water. Claimant's

testimony, which is largely corroborated by employer's personnel,

provides ample credible evidence to support the commission's

finding that an identifiable incident occurred at a definite time

and that he suffered a sudden mechanical or structural change in

his body. Dunn, 9 Va. App. at 476, 389 S.E.2d at 181. Thus,

that finding is conclusive on appeal. See James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

Furthermore, "[t]he 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). In this

case, the medical records and opinions of Doctors Korsch and Moll

provide credible evidence that link claimant's disk herniations,

surgery, and disability to the May 31, 1994 injury by accident.

As the commission found, the medical histories consistently

reported a history of increasing pain since the workplace

accident and also showed "a progressive deterioration of the

claimant's condition since the accident which ultimately required

surgical intervention."

Because we cannot say that the commission erred in finding

-4- that claimant sustained a compensable injury by accident, we

affirm the commission's decision.

Affirmed.

-5-