B&F Contracting Corp v. Joseph F. Beitler ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Bray
Argued at Norfolk, Virginia
B & F CONTRACTING CORPORATION and
ROYAL INSURANCE COMPANY OF AMERICA
v. Record No. 1762-94-1 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
JOSEPH F. BEITLER JUNE 13, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
W. Glover Garner, Jr. (Marshall, Blalock & Garner,
on briefs), for appellants.
William M. McKee (Timothy T. Blank; Lowell A. Stanley,
on brief), for appellee.
B & F Contracting Corporation and Royal Insurance Company of
America (together "employer") challenge the commission's finding
that Joseph F. Beitler (claimant) suffered a compensable injury,
arguing that the evidence was insufficient to support the award.
We disagree and affirm the decision of the commission.
The parties are fully conversant with the record in this
case, and we recite only those facts necessary to explain our
holding. Under familiar principles, we must consider the
evidence in the light most favorable to the prevailing party
below, claimant in this instance. Crisp v. Brown's Tysons Corner
Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).
"In order to recover on a workers' compensation claim, a
claimant must prove: (1) an injury by accident, (2) arising out
of and (3) in the course of his employment." Kane Plumbing, Inc.
v. Small, 7 Va. App. 132, 135, 371 S.E.2d 828, 830 (1988); see
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Code § 65.2-101. An "injury by accident" requires "(1) an
identifiable incident; (2) that occurs at some reasonably
definite time; (3) an obvious sudden mechanical or structural
change in the body; and (4) a causal connection between the
incident and the bodily change." Chesterfield County v. Dunn, 9
Va. App. 475, 476, 389 S.E.2d 180, 181 (1990). "The phrase
arising 'in the course of' refers to the time, place, and
circumstances under which the accident occurred," while "arising
'out of' refers to the origin or cause of the injury." County of
Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74
(1989).
Thus, 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. 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. "The actual determination of causation is a factual finding
that will not be disturbed on appeal," if supported by credible
evidence. Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376
S.E.2d 814, 817 (1989); Code § 65.2-706. However, "[w]hether an
injury arises out of and in the course of employment is a mixed
question of law and fact . . . , reviewable on appeal." Jones v.
Colonial Williamsburg Found., 8 Va. App. 432, 434, 382 S.E.2d
300, 301 (1989).
Here, claimant was clearing "trash" and "weeds" from
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employer's "yard compound" in accordance with instructions. At
1:10 p.m., claimant moved a "large barrel," weighing
"approximately 100 pounds," in order to access and remove
surrounding weeds. Although claimant recalled no discomfort or
other sensation incidental to this effort, his neck began
"burning and feeling stiff" at "about" 2:30 p.m. Within an hour,
claimant reported these symptoms to two supervisors, explaining
to each that "he hurt himself moving the barrel." This evidence
was corroborated by both superintendents in testimony before the
commission.
Although claimant was initially diagnosed with "acute neck
strain," a subsequent MRI revealed "a right sided disc herniation
at the C5-6 level," with "a mildly bulging disc at the C3-4
level." In later correspondence, Dr. Richard McAdam, the
treating neurosurgeon, opined that this pathology was "causally
related" to the "lifting incident" with the barrel and consistent
with the delayed onset of claimant's attendant symptoms.
Therefore, the testimony of claimant, his supervisors and
Dr. McAdam, together with the other evidence before the
commission, established that claimant suffered a sudden
structural change in his cervical spine, while moving a weighty
barrel on the premises of his employer incidental to his duties
of employment. See Pence Nissan Oldsmobile v. Oliver, ___ Va.
App. ___, ___, ___ S.E.2d ___, ___ (1995). Such evidence
supported the commission's finding of compensable injury by
accident and the related award.
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Accordingly, we affirm the decision of the commission.
Affirmed.
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MOON, C.J., dissenting.
I respectfully dissent because claimant's testimony at
hearing did not describe an identifiable incident that
constituted an "accident" within the meaning of that term in
workers' compensation law. See Morris v. Morris, 238 Va. 578,
385 S.E.2d 858 (1989). He testified that he moved a barrel out
of the way in order to cut weeds and that he then moved the
barrel back into place. He testified "I reached down, I grabbed
the barrel, moved one side and then moved the other side, then
cut the weeds down and then moved the barrel back in place." He
said that he felt "nothing." This was at 1:00 p.m. He continued
to use the weed-eater. He "got back to Newsome Park at 2:30
p.m." He got ready to sit down and his neck "was burning" and
got "real stiff." He figured it was just a "stiff neck . . .
from sleeping on it wrong." He does not describe any "lifting"
incident to support the doctor's conclusion that he sustained an
injury by accident while lifting a barrel. Because no credible
evidence supports the commission's award, I would reverse it.
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