J.H. Miles Seafood, etc. v. Carol A. Guyton ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
J.H. MILES SEAFOOD CO./J.H. MILES CO., INC.
AND FIDELITY & CASUALTY INSURANCE CO.
MEMORANDUM OPINION * BY
v. Record No. 2391-96-1 JUDGE RICHARD S. BRAY
APRIL 8, 1997
CAROL A. GUYTON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Bradford C. Jacob (William C. Walker; Taylor
& Walker, P.C., on brief), for appellants.
Kevin L. Hubbard for appellee.
J.H. Miles Seafood Co. and carrier, Fidelity & Casualty
Insurance Co., (collectively "employer") appeal from a decision
of the Virginia Workers' Compensation Commission awarding
benefits to Carol A. Guyton (claimant) for bilateral plantar
fascitis. On appeal, employer complains that the commission
erroneously concluded that claimant suffered from a compensable
occupational disease. We agree and reverse the decision of the
commission.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
A claimant seeking benefits under the Virginia Workers'
Compensation Act must prove either "an injury by accident or an
occupational disease 'arising out of and in the course of the
employment.'" Holly Farms Foods, Inc. v. Carter, 15 Va. App. 29,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
37, 422 S.E.2d 165, 169 (1992) (quoting Code § 65.2-101).
However, "job-related impairments resulting from cumulative
trauma . . . , however labeled or however defined, are, as a
matter of law, not compensable under the . . . Act." The
Stenrich Group v. Jemmott, 251 Va. 186, 199, 467 S.E.2d 795, 802
(1996). This principle applies to all "cumulative trauma
conditions, regardless of whether they are caused by repetitive
motion." Allied Fibers v. Rhodes, 23 Va. App. 101, 104, 474
S.E.2d 829, 830 (1996).
Claimant asserts that we are not controlled by Jemmott and
its progeny in this instance because her physicians diagnosed an
"occupational disease" and "there are no diagnoses by the
claimant's physician[s], nor any other evidence, that repetitive
motion or cumulative traumas were the cause and/or basis of her
present impairment." However, "just because a doctor opines that
a particular impairment is a disease does not necessarily make it
so," Jemmott, 251 Va. at 198, 467 S.E.2d at 801, and the evidence
clearly supported the commission's finding that claimant's malady
resulted from prolonged standing, a circumstance necessitated by
1
her occupation.
1
Dr. Molligan's notes reflect that claimant's employment
"require[d] her to stand for long periods of time on concrete,"
and claimant herself testified that Dr. Molligan "told [her] that
. . . [her condition] did come from [her] job from [her] doing a
lot of standing." She also testified that Dr. Gibbs advised that
her condition "came from [her] job, from [her] doing a lot of
standing on thin rubber mats, working on concrete all day long,
standing, only taking ten-minute breaks and not really taking
breaks like [she] should. . . . [J]ust constantly standing."
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In Rhodes, we applied Jemmott to conclude that hearing loss
caused by employment related noise exposure is a noncompensable
cumulative trauma injury. 23 Va. App. at 102-04, 474 S.E.2d at
830-31. We noted in Rhodes that hearing loss "does not fit the
classic definition of injury, namely a sudden event produced by
immediate trauma," but, nevertheless, "'belongs under the general
heading of traumatic injury because it is strictly a physical
force.'" Id. at 103, 474 S.E.2d at 830 (emphasis added) (quoting
Attorney's Textbook of Medicine § 84.65 (Roscoe N. Gray & Louise
Gordy, eds., 3d ed. 1995)). Similarly, the undisputed evidence
here makes clear that the prolonged physical force of the
concrete floor against claimant's feet gradually caused her
impairment, a noncompensable cumulative trauma.
Accordingly, we reverse the award.
Reversed and dismissed.
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