COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Humphreys and Senior Judge Overton
WILLIAM RAY HELFER MEMORANDUM OPINION* v. Record No. 3094-02-2 PER CURIAM APRIL 15, 2003 VIRGINIA DEPARTMENT OF REHABILITATIVE SERVICES
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert L. Flax; Flax & Stout, on briefs), for appellant.
(Jerry W. Kilgore, Attorney General; Judith Williams Jagdmann, Deputy Attorney General; Edward M. Macon, Senior Assistant Attorney General; Scott John Fitzgerald, Assistant Attorney General, on brief), for appellee.
William R. Helfer contends the Workers' Compensation
Commission erred in finding that (1) he failed to prove he
sustained a sudden mechanical change in his body as a result of
an identifiable incident occurring at work on July 26, 1999; and
(2) the determination of the etiology of his groin pain was
necessary to support a finding of a compensable injury by
accident. Upon reviewing the record and the parties' briefs, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 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). "In
order to carry [the] burden of proving an 'injury by accident,'
a claimant must prove that the cause of [the] injury was an
identifiable incident or sudden precipitating event and that it
resulted in an obvious sudden mechanical or structural change in
the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858,
865 (1989). Unless we can say as a matter of law that Helfer's
evidence sustained his burden of proof, the commission's
findings are binding and conclusive upon us. See Tomko v.
Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835
(1970).
Helfer, a partial quadriplegic since 1988, testified that
on July 26, 1999, while at work, he picked up a three-ring
binder and as he tried to hand it to a co-worker, he felt "a
tearing sensation in [his] groin area." He dropped the binder
and leaned over in his wheelchair. Helfer wears a brace, which
allows him to use a three-point finger pinch to pick up an item.
Helfer did not determine the weight of the binder and never
counted its pages. Helfer testified that he still suffers from
severe groin pain, which he did not suffer from before July 26,
1999. Helfer's co-worker called his supervisor, Dale Batten,
immediately after the incident.
- 2 - Before July 26, 1999, Helfer had suffered from urinary
tract infections and bladder and bowel problems, as well as
other medical problems related to his 1988 spinal cord injury.
Helfer's co-worker, Patricia Norton, described the binder
as a "small one" and as an "about a one inch folder," and
testified that it weighed "[p]robably a pound or two."
Batten testified in her deposition that on July 26, 1999,
she was called to Helfer's office and saw him in his wheelchair
"in severe pain in the lower extremity area." Helfer told her
he had lifted a binder and felt severe pain. Batten described
the binder as "about 1 inch."
On July 26, 1999, Helfer's treating physician, Dr. Gregory
Leghart, diagnosed Helfer as suffering from another urinary
tract infection, "but no other significant pathology."
Dr. Leghart noted that later medical treatment including "[a]n
exhaustive, thorough evaluation . . . never definitively
revealed the true etiology." Although Dr. Leghart opined that
there was "no doubt in my mind that there was an injury at work
which caused [Helfer's] left groin pain," he did not explain how
the injury occurred nor did he identify any specific groin
injury or any location of any sudden structural or mechanical
change in Helfer's body. He opined that Helfer sustained an
injury at work based solely upon Helfer's report of increased
pain.
- 3 - The commission ruled that Helfer failed to prove that his
groin condition was the result of any injury by accident arising
out of and in the course of his employment on July 26, 1999. In
so ruling, the commission found as follows:
Although Dr. Leghart opined that there was "no doubt" that [Helfer] injured his groin at work on July 26, 1999, he also was unable to diagnose [Helfer's] problem. We are not persuaded by Dr. Leghart's opinion, which only states that [Helfer] injured his groin but does not reasonably explain what the injury was or how it occurred. Although Dr. Leghart referred to [Helfer's] condition as a groin "strain," it was clear from the record that Dr. Leghart was approximating [Helfer's] condition based on the failure of medical treatment to find a cause for the condition.
We recognize that the evidence was strong that [Helfer's] condition was severe and disabling. Before the employer is held responsible for his condition, however, [Helfer] was required to show that the condition was caused by an injury by accident. The evidence did not show what caused his accident, much less that it was caused by his employment. We do not believe the medical evidence established [Helfer's] work as the source of his groin condition.
"Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing."
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 215 (1991). As fact finder, the commission weighed
Dr. Leghart's medical records and opinions, and concluded that
they did not provide sufficient evidence to prove by a
preponderance that Helfer's groin condition was caused by a
- 4 - compensable injury by accident occurring at work on July 26,
1999. In light of Dr. Leghart's failure to explain the nature
of Helfer's injury and how lifting the one-inch binder caused
the injury, the commission, as fact finder, was entitled to give
little probative weight to his opinion. In light of the lack of
any persuasive medical evidence to establish that Helfer's groin
condition was caused by an injury by accident arising out of and
in the course of his employment on July 26, 1999, we cannot find
as a matter of law that Helfer sustained his burden of proof.
In addition, in affirming the deputy commissioner's
decision, the commission necessarily affirmed his finding that
Helfer failed to prove that he sustained an injury by accident
arising out of his employment on July 26, 1999. 1
Virginia uses the actual risk test to determine whether an
injury arises out of employment. Vint v. Alleghany Reg'l Hosp.,
32 Va. App. 60, 63, 526 S.E.2d 295, 297 (2000). "The mere
happening of an accident at the workplace, not caused by any
work related risk or significant work related exertion, is not
compensable." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App.
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Humphreys and Senior Judge Overton
WILLIAM RAY HELFER MEMORANDUM OPINION* v. Record No. 3094-02-2 PER CURIAM APRIL 15, 2003 VIRGINIA DEPARTMENT OF REHABILITATIVE SERVICES
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert L. Flax; Flax & Stout, on briefs), for appellant.
(Jerry W. Kilgore, Attorney General; Judith Williams Jagdmann, Deputy Attorney General; Edward M. Macon, Senior Assistant Attorney General; Scott John Fitzgerald, Assistant Attorney General, on brief), for appellee.
William R. Helfer contends the Workers' Compensation
Commission erred in finding that (1) he failed to prove he
sustained a sudden mechanical change in his body as a result of
an identifiable incident occurring at work on July 26, 1999; and
(2) the determination of the etiology of his groin pain was
necessary to support a finding of a compensable injury by
accident. Upon reviewing the record and the parties' briefs, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 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). "In
order to carry [the] burden of proving an 'injury by accident,'
a claimant must prove that the cause of [the] injury was an
identifiable incident or sudden precipitating event and that it
resulted in an obvious sudden mechanical or structural change in
the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858,
865 (1989). Unless we can say as a matter of law that Helfer's
evidence sustained his burden of proof, the commission's
findings are binding and conclusive upon us. See Tomko v.
Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835
(1970).
Helfer, a partial quadriplegic since 1988, testified that
on July 26, 1999, while at work, he picked up a three-ring
binder and as he tried to hand it to a co-worker, he felt "a
tearing sensation in [his] groin area." He dropped the binder
and leaned over in his wheelchair. Helfer wears a brace, which
allows him to use a three-point finger pinch to pick up an item.
Helfer did not determine the weight of the binder and never
counted its pages. Helfer testified that he still suffers from
severe groin pain, which he did not suffer from before July 26,
1999. Helfer's co-worker called his supervisor, Dale Batten,
immediately after the incident.
- 2 - Before July 26, 1999, Helfer had suffered from urinary
tract infections and bladder and bowel problems, as well as
other medical problems related to his 1988 spinal cord injury.
Helfer's co-worker, Patricia Norton, described the binder
as a "small one" and as an "about a one inch folder," and
testified that it weighed "[p]robably a pound or two."
Batten testified in her deposition that on July 26, 1999,
she was called to Helfer's office and saw him in his wheelchair
"in severe pain in the lower extremity area." Helfer told her
he had lifted a binder and felt severe pain. Batten described
the binder as "about 1 inch."
On July 26, 1999, Helfer's treating physician, Dr. Gregory
Leghart, diagnosed Helfer as suffering from another urinary
tract infection, "but no other significant pathology."
Dr. Leghart noted that later medical treatment including "[a]n
exhaustive, thorough evaluation . . . never definitively
revealed the true etiology." Although Dr. Leghart opined that
there was "no doubt in my mind that there was an injury at work
which caused [Helfer's] left groin pain," he did not explain how
the injury occurred nor did he identify any specific groin
injury or any location of any sudden structural or mechanical
change in Helfer's body. He opined that Helfer sustained an
injury at work based solely upon Helfer's report of increased
pain.
- 3 - The commission ruled that Helfer failed to prove that his
groin condition was the result of any injury by accident arising
out of and in the course of his employment on July 26, 1999. In
so ruling, the commission found as follows:
Although Dr. Leghart opined that there was "no doubt" that [Helfer] injured his groin at work on July 26, 1999, he also was unable to diagnose [Helfer's] problem. We are not persuaded by Dr. Leghart's opinion, which only states that [Helfer] injured his groin but does not reasonably explain what the injury was or how it occurred. Although Dr. Leghart referred to [Helfer's] condition as a groin "strain," it was clear from the record that Dr. Leghart was approximating [Helfer's] condition based on the failure of medical treatment to find a cause for the condition.
We recognize that the evidence was strong that [Helfer's] condition was severe and disabling. Before the employer is held responsible for his condition, however, [Helfer] was required to show that the condition was caused by an injury by accident. The evidence did not show what caused his accident, much less that it was caused by his employment. We do not believe the medical evidence established [Helfer's] work as the source of his groin condition.
"Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing."
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 215 (1991). As fact finder, the commission weighed
Dr. Leghart's medical records and opinions, and concluded that
they did not provide sufficient evidence to prove by a
preponderance that Helfer's groin condition was caused by a
- 4 - compensable injury by accident occurring at work on July 26,
1999. In light of Dr. Leghart's failure to explain the nature
of Helfer's injury and how lifting the one-inch binder caused
the injury, the commission, as fact finder, was entitled to give
little probative weight to his opinion. In light of the lack of
any persuasive medical evidence to establish that Helfer's groin
condition was caused by an injury by accident arising out of and
in the course of his employment on July 26, 1999, we cannot find
as a matter of law that Helfer sustained his burden of proof.
In addition, in affirming the deputy commissioner's
decision, the commission necessarily affirmed his finding that
Helfer failed to prove that he sustained an injury by accident
arising out of his employment on July 26, 1999. 1
Virginia uses the actual risk test to determine whether an
injury arises out of employment. Vint v. Alleghany Reg'l Hosp.,
32 Va. App. 60, 63, 526 S.E.2d 295, 297 (2000). "The mere
happening of an accident at the workplace, not caused by any
work related risk or significant work related exertion, is not
compensable." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App.
1 Helfer argues that by not specifically rejecting the deputy commissioner's finding that Helfer failed to prove he sustained an injury by accident arising out of his employment on July 26, 1999, the full commission necessarily accepted Helfer's contention. We disagree. Although not specifically addressing the "arising out of" issue, the commission affirmed the deputy commissioner's opinion in its entirety. Although Helfer did not raise the "arising out of" issue as a separate question presented in his brief, he addressed this issue in the "Argument" section of his brief. - 5 - 482, 484, 382 S.E.2d 305, 306 (1989). A claimant must establish
"that the conditions of the workplace or . . . some significant
work related exertion caused the injury." Id. Thus, "the
arising out of test excludes 'an injury which comes from a
hazard to which the employee would have been equally exposed
apart from the employment. The causative danger must be
peculiar to the work, incidental to the character of the
business, and not independent of the master-servant
relationship.'" Johnson, 237 Va. at 183-84, 376 S.E.2d at 75
(citation omitted). The commission's decision regarding this
question involves a mixed question of fact and law. Southside
Virginia Training Ctr. v. Shell, 20 Va. App. 199, 202, 455
S.E.2d 761, 763 (1995).
Here, no evidence showed that Helfer engaged in any
significant exertion, that his action of handing the one-inch
binder to his co-worker involved any awkward position, and/or
that any condition or hazard peculiar to his workplace caused
his injury. Accordingly, we affirm the commission's finding
that Helfer failed to prove he sustained an injury by accident
arising out of his employment on July 26, 1999.
For these reasons, we affirm the commission's decision.
Affirmed.
- 6 -