Philip Morris USA v. Vickie Lawson ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Cole
Argued at Richmond, Virginia
PHILIP MORRIS USA AND
LUMBERMENS MUTUAL CASUALTY COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1783-97-2 JUDGE JAMES W. BENTON, JR.
FEBRUARY 3, 1998
VICKIE R. LAWSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Thomas J. Mitchell (Hunton & Williams, on
brief), for appellants.
William R. Keown (Beddow, Marley &
Associates, on brief), for appellee.
Philip Morris appeals the decision of the Workers'
Compensation Commission awarding temporary total disability
benefits and medical benefits to Vickie R. Lawson. Philip Morris
argues that Lawson's injury was not an injury by accident but was
a gradually incurred, repetitive use injury. We affirm the
commission's award.
I.
The evidence proved that on July 22, 1996, Vickie Lawson was
assigned to a work shift at a Philip Morris facility that
required her to pin "hogsheads." The work activity of "pinning
hogsheads" involves sealing large tobacco casks, called
hogsheads, by pulling clips together, inserting pins to secure a
lid, and then pounding the pins with a hammer to hold the casks
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
together. This was Lawson's first time pinning hogsheads.
Lawson testified that she felt a sudden, sharp, shooting
pain in her right arm when she "tried to beat a head down into
the hogshead." She had done "no more than two" hogsheads and
made "no more than two or three" hits on the pins when she felt
the pain. Lawson reported the injury to her supervisor when he
arrived at her work station about thirty to forty minutes after
it happened. Lawson finished her shift on July 22 and continued
to work for the rest of the week. However, she did not hammer
any more hogsheads.
Robert Hartsell, Lawson's co-worker, testified that he was
working on the same shift with Lawson pinning hogsheads. About
fifteen to twenty minutes into the shift, after they had pinned
two hogsheads, Lawson told him that she hurt her arm. When
Lawson made the complaint, she had taken no more than two or
three hits. Hartsell testified that Lawson did not pin any more
hogsheads after her injury and that he and another co-worker
completed the tasks. Lawson's production superintendent
testified that he was informed of the incident the day it
happened.
On July 31, Lawson sought medical attention from Dr. David
Compton, Philip Morris' Director of Occupational Health Services.
Lawson testified that she had never had any problems or medical
treatment to her right arm, elbow, or wrist before this incident.
She also testified that she told Dr. Compton "that I had gotten
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hurt on the 22nd of July, trying to beat a lid into a hogshead,
and that it was a sudden sharp pain that went through my right
arm."
Dr. Compton reported the following:
Employee presents for evaluation of right forearm
and elbow pain. States that arm began hurting
after several shifts in her new job on packing
line #3 at P500. The specific activity that is
problematic is closing and pinning hogsheads. She
does not report an incident of injury.
Dr. Compton testified in his deposition that Lawson told him
that she first noticed the onset of pain on July 22 but did not
tell him she had sharp shooting pain on July 22. He also
testified as follows:
[Lawson] came up and told me that her elbow
had started hurting after working on the
pinning of the hogs' heads, basically
describing that, as she was trying to close
the hogs' heads, she started having elbow
pain and she couldn't close them any
longer. . . . She told me [the pain] begun
gradually over the last several days on the
shift and that she had had assistance during
that time because it had finally gotten to a
point where she could not work any longer,
and that's what prompted her to seek medical
attention.
Dr. Compton diagnosed Lawson with lateral epicondylitis. He
testified that epicondylitis is "recurrent small tears" in the
tendon that usually develop "over a period of time." Dr. Compton
also testified, however, that he was aware of one case where
epicondylitis was caused by trauma when a person fell and struck
his elbow.
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Lawson went to the Chippenham Medical Center on August 2,
1996. The triage nursing notes indicated that Lawson hurt her
arm at work last week, that her pain increased yesterday, with
numbness and tingling from the shoulder to the hand and fingers,
and that Lawson had received a prior diagnosis of epicondylitis.
Dr. Brian Kelleher examined Lawson and recorded her history as
follows:
Patient complains of having increasing dull
aching right forearm/elbow pain for
approximately 1-2 weeks prior to arrival.
She says that the discomfort has been called
"epicondylitis" by the physician at Philip
Morris where she works. It is attributed to
the heavy labor involved in sealing large
tobacco casks called "hogsheads."
Dr. Kelleher diagnosed a strain of the right elbow.
Lawson was next treated by Dr. Samuel Jessee, an orthopedic
surgeon. He reported that Lawson "complain[ed] of a sharp pain
in the right arm [that] . . . began to bother her on 7/22 when
she was beating a hog's head lid on with a hammer." Dr. Jessee
diagnosed Lawson with lateral epicondylitis and tendinitis and
treated Lawson with medication, injections, physical therapy and
a soft cast. He released her to return to work on October 17.
Based on this evidence, the deputy commissioner denied
Lawson's claim, finding that Lawson presented no medical evidence
to prove that her condition was the result of a specific
incident. The commission reversed that decision, holding that
Lawson's injury "was related to a single, identifiable incident"
and qualifies as an "injury by accident" and that "the record as
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a whole establishes the occurrence of a particular injury and a
sudden mechanical change."
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II.
Philip Morris contends that Lawson presented no credible
evidence to prove her condition arose suddenly as a result of a
single identifiable incident. Philip Morris argues that Dr.
Compton and Dr. Jessee both noted a history of a gradually
occurring injury and diagnosed her as suffering from a repetitive
use injury.
The principle is fundamental that this Court will uphold
factual findings of the commission if those findings are
supported by credible evidence. See Code § 65.2-706; James v.
Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487,
488 (1989). "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). "'Medical
evidence is not necessarily conclusive, but is subject to the
commission's consideration and weighing.'" Dollar General Store
v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996)
(citation omitted).
[E]ven though great weight should be given to
the evidence of an attending physician, his
opinion is not binding on the Commission.
The probative weight to be accorded such
evidence is for the Commission to decide; and
if it is in conflict with other medical
evidence, the Commission is free to adopt
that view "which is most consistent with
reason and justice."
C.D.S. Constr. Services v. Petrock, 218 Va. 1064, 1071, 243
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S.E.2d 236, 240 (1978) (citation omitted).
The commission clearly considered the medical evidence and
made findings concerning the reports of Dr. Compton and Dr.
Jessee. Indeed, the commission stated:
We do not find it fatal to the claim that Dr.
Compton did not record a sudden incident, as
medical personnel are generally more
interested in assessing and treating a
problem than in recording the precise details
of its genesis. Dr. Compton did, however,
note that the pain originated on July 22 and
that a co-worker had been doing the "actual"
work since then.
The commission also found that "Dr. Jessee's notes record that
[Lawson's] problem began 'on 7/22 when she was beating a hog's
head lid on with a hammer.'" These findings are supported by
credible evidence.
Although Dr. Compton did not record a sudden event, he did
note that Lawson's pain originated on July 22. He also testified
that although Lawson continued to work her shift, she could no
longer close the hogsheads after the injury. Lawson told him
that she "had someone working with her, and she said they were
actually doing it and she was putting the pins in, at that time."
Dr. Jessee's records precisely state that Lawson's problem
began on July 22 and had its origin in her activity of "beating a
hog's head lid on with a hammer." His August 6, 1996 report
"[b]asically [describes] her job" but it contains no suggestion
that her injury results from repetitive activity.
Furthermore, the testimony of an employee may also be
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considered in determining causation. See Dollar General, 22 Va.
App. at 176, 468 S.E.2d at 154. Philip Morris, however, argues
that Lawson's testimony that she suffered a sudden injury and
that she did not engage in repetitive work activities is not
credible because it is inconsistent with the histories she
provided the doctors.
Viewed in the light most favorable to Lawson, see R.G. Moore
Bldg. Corp. v. Mullins, 10 Va. App. 212, 212, 390 S.E.2d 788, 788
(1990), the medical evidence, Lawson's testimony, the testimony
of Lawson's co-worker, and the testimony of the production
superintendent provide credible evidence to support the
commission's finding that Lawson suffered an injury by accident.
Lawson testified that she had no elbow problem prior to July 22.
She also had never before hammered a hogshead pin. Fifteen to
twenty minutes into her first shift pinning hogsheads, after
pining no more than two hogsheads, Lawson felt a sudden, sharp
pain in her elbow as she hammered a pin. She immediately stopped
hammering and did not resume hammering. For the remainder of her
work shift, she simply held the pins while her co-workers did the
actual hammering. "[T]he commission was free to credit
[Lawson's] testimony at the hearing as a basis for its finding of
causation. 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.'" Dollar General, 22 Va. App.
at 177, 468 S.E.2d at 155 (citation omitted).
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Lawson's testimony was corroborated by her co-worker.
Furthermore, Lawson reported her injury to her supervisor and the
superintendent on the day the incident occurred. The
superintendent agreed that Lawson had never hit a hogshead before
her July 22 shift. This evidence and Dr. Jessee's history of the
injury support the commission's findings.
Accordingly, we hold that credible evidence in the record
supports the commission's award of benefits, and we affirm the
award.
Affirmed.
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