MD & VA Milk Produce v. Rena A. Parker ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
MARYLAND & VIRGINIA MILK PRODUCE AND
LUMBERMENS MUTUAL CASUALTY COMPANY
MEMORANDUM OPINION *
v. Record No. 2418-96-1 PER CURIAM
FEBRUARY 25, 1997
RENA A. PARKER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William W. Nexsen; William W. Tunner;
Stackhouse, Smith & Nexsen, on brief), for
appellants.
(Richard W. Hudgins, on brief), for appellee.
Maryland & Virginia Milk Produce and its insurer
(hereinafter collectively referred to as "employer") contend that
the Workers' Compensation Commission erred in finding that Rena
A. Parker proved that she sustained an injury by accident arising
out of her employment on November 20, 1995. Upon reviewing the
record and the briefs of the parties, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
commission's decision. Rule 5A:27.
"Whether an injury arises out of the employment is a mixed
question of law and fact and is reviewable by the appellate
court." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482,
483, 382 S.E.2d 305, 305 (1989). Factual findings made by the
commission will be upheld on appeal if supported by credible
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512,
515, 382 S.E.2d 487, 488 (1989).
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). So
viewed, the evidence established that, on November 20, 1995,
Parker was repairing a company truck she had painted the previous
day. Four of Parker's co-workers assisted her by placing the
truck bed onto the chassis. In order to insert bolts to hold the
truck bed in place, Parker had to align the truck bed on the
chassis. While in a squatting and bending position and while
holding the 100 to 150 pound truck bed in her left hand, Parker
moved, pulled, jerked, and lifted the truck bed in order to
realign the bolts to the holes. It took several minutes to
complete this task. Once Parker realigned the bolts, she stood
up and felt back pain. Her back pain worsened during that day.
Histories of the incident contained in the medical records
corroborated Parker's testimony. Parker's physicians diagnosed a
herniated disc, which eventually required surgical treatment.
The commission found that Parker's employment caused her to
assume "[t]he awkward physical movement of squatting, lifting the
heavy truck bed and placing the bolts" and that those activities
caused her back injury. These findings are supported by credible
evidence, including Parker's testimony and the medical records.
Therefore, they will not be disturbed on appeal.
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This case is controlled by our decision in Richard E. Brown,
Inc. v. Caporaletti, 12 Va. App. 242, 402 S.E.2d 709 (1991). In
Caporaletti, the claimant "was installing a 100 pound furnace
. . . when he injured himself. Caporaletti lowered the furnace
to its side and then leaned over it for approximately four to
five minutes, cutting and fitting the furnace into place. He
then attempted to stand up but was unable to do so." Id. at 243,
402 S.E.2d at 710. In Caporaletti, we recognized that the
gradual lowering of the 100 pound furnace and the accompanying
work activities in a bent over position over the course of
several minutes precipitated Caporaletti's back injury. Id. at
244, 402 S.E.2d at 710. We held that the "identifiable incident
of straightening up after working in a bent over position
resulted in [the claimant's injury]." Id. We also held that
Caporaletti's lowering of the 100 pound furnace and his working
in a bent over position involved risks peculiar to the conditions
of his employment. Id. at 245, 402 S.E.2d at 711.
In this case, as in Caporaletti, the evidence proved that
the conditions of Parker's employment required that she maneuver
a heavy item while in an awkward squatting/bending position over
a period of several minutes. Upon rising from this position, she
felt back pain. As in Caporaletti, Parker "was not simply
bending over in a normal manner with no other contributing
factors." Id. at 245, 402 S.E.2d at 711. Rather, Parker, like
Caporaletti, maneuvered a heavy object in a bent over position
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over the course of several minutes. Parker's work involved
significant exertion while in an awkward position. Therefore, we
agree with the commission's finding that a causal connection
existed between the conditions under which employer required
Parker to perform her work and her resulting back injury.
Employer cites Barbour and United Parcel Serv. v. Fetterman,
230 Va. 257, 336 S.E.2d 892 (1985), in support of its argument.
However, in Barbour and Fetterman, unlike this case, there was no
evidence that the conditions of the claimants' workplace
contributed to cause their injuries. Barbour simply bent over to
pick up a piece of plastic pipe after working for one hour.
Barbour, 8 Va. App. at 483, 382 S.E.2d at 305. Fetterman merely
bent over to tie his shoe and felt acute back pain. Fetterman,
230 Va. at 258, 336 S.E.2d at 892.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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