Carpet Palace, Inc. v. Paul L. Salehi , 26 Va. App. 357 ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judge Elder and
Senior Judge Duff
Argued at Alexandria, Virginia
CARPET PALACE, INC. AND NATIONWIDE
MUTUAL INSURANCE COMPANY
OPINION BY
v. Record No. 0706-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 20, 1998
PAUL L. SALEHI
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Benjamin J. Trichilo (Trichilo, Bancroft,
McGavin, Horvath & Judkins, on brief), for
appellants.
No brief or argument for appellee.
Carpet Palace, Inc. and Nationwide Mutual Insurance Company
(collectively "employer") appeal the Workers' Compensation
Commission's decision awarding benefits to Paul L. Salehi
("claimant"). Employer argues the commission erroneously
concluded that: (1) claimant's back injury was compensable
despite his repeated failure to comply with lifting restrictions;
and (2) claimant adequately marketed his residual work capacity.
For the following reasons, we reverse the commission's decision.
I.
"[W]e review the evidence in the light most favorable to the
prevailing party." R.G. Moore Bldg. Corp. v. Mullins, 10 Va.
App. 211, 212, 390 S.E.2d 788, 788 (1990). "Factual findings of
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
the . . . [c]ommission will be upheld on appeal if supported by
credible evidence." James v. Capitol Steel Constr. Co., 8 Va.
App. 512, 515, 382 S.E.2d 487, 488 (1989).
Claimant has been the owner and president of Carpet Palace,
Inc. since 1976. On November 14, 1977, he lifted a heavy roll of
carpeting and suffered a compensable back injury, which
ultimately resulted in a settlement of $20,000 plus lifetime
medical benefits. From 1977 through 1993, claimant sought
medical treatment on eight occasions for back pain following
heavy lifting at work. He was hospitalized at least four times
for treatment of his back pain, and doctors performed at least
two surgical procedures. After the first surgery in 1979,
claimant's doctors imposed restrictions on repetitive bending and
lifting over twenty-five pounds.
On October 3, 1994, claimant moved a "large box of carpet
samples" and immediately felt pain in his back and into his right
leg. In response to questions about this incident, claimant
acknowledged the restrictions:
Q. Did you have restrictions on your
activities prior to October of 1994?
A. Yes, I was told, you know, not to lift
more than 20, 25 pounds, Sir.
Q. So you weren't following your doctor's
advice on the day of this incident?
A. It says try not to lift more than 20, 25
and unfortunately I did that.
When asked about his history of back pain following heavy
lifting, claimant explained: "Unfortunately I do the same thing
expecting different results." Claimant's primary work
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obligations were bill paying and administrative jobs. Lifting
boxes was outside the scope of his normal duties.
Dr. Anthony Debs, the treating physician, opined that the
October 3, 1994 incident "aggravated a pre-existing condition."
Dr. Debs also expressed his view that "at this stage the
persevering symptoms are most probably related to the chronic
condition that he has been suffering from for the past 15-16
years." Although Dr. Debs told claimant he could work eight
hours per day, claimant indicated that working more than four to
six hours a day aggravated his back. As a result, claimant
testified that he was unable to work full duty and had to hire
another employee to perform part of his work. Thus, his income
was decreased.
On March 8, 1995, claimant was involved in an automobile
accident. He sought treatment for back pain from Dr. G.R.
Mahryar, and he failed to tell Dr. Debs about this incident.
On April 3, 1995, claimant filed his request for benefits
related to the October 3, 1994 incident. After a hearing, the
deputy commissioner found that because Dr. Debs was unaware of
the car accident, "Dr. Debs' finding of disability is based upon
inaccurate and incomplete information provided to him by the
claimant." He concluded "the claimant has failed to sustain his
burden of proof that any disability after the claimant's March 8,
1995 motor vehicle accident was causally related to the
claimant's compensable accident or aggravation of his
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pre-existing condition." The deputy commissioner awarded
claimant medical benefits related to the incident, temporary
total disability benefits beginning October 28 through December
4, 1994, and temporary partial disability benefits from December
5, 1994 through March 7, 1995. Claimant did not contest
termination of disability benefits as of March 7, 1995.
On review, a majority of the commission affirmed the award,
finding: (1) "claimant sustained a compensable injury by
accident on October 3, 1994," (2) "claimant adequately marketed
his residual capacity," and (3) "employer continues to be
responsible for medical treatment which is proven to be causally
related to the industrial accident."
II.
Employer argues that claimant did not sustain a compensable
injury by accident because his injury predictably resulted from
his failure to comply with ongoing medical restrictions. We
agree.
A worker may receive benefits related to an "injury by
accident arising out of and in the course of the employment."
Code § 65.2-101. However, "[a]n injury by accident must be
unexpected to be compensable." Dollar Gen. Store v. Cridlin, 22
Va. App. 171, 178, 468 S.E.2d 152, 155 (1996) (shoulder injury
was not expected result of deviation from restriction related to
breast cancer surgery). "The basic and indispensable ingredient
of 'accident' is unexpectedness." 2 Arthur Larson, Workers'
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Compensation Law § 37.20 (1997). "The definition of accident
generally assented to is . . . an event which, under the
circumstances, is unusual and not expected by the person to whom
it happens." Reserve Life Ins. Co. v. Hosey, 208 Va. 568,
570-71, 159 S.E.2d 633, 635 (1968) (citation omitted) (knee
injury during door-to-door survey was unexpected). Cf. L.B.
Priester & Son v. McGee, 106 So. 2d 394, 398 (Miss. 1958)
(claimant's "expectation of a probable second heart attack [was
not] so strong as to strip the occurrence of its accidental
character").
Additionally, "[a]n accident is an event which creates an
effect which is not the natural or probable consequence of the
means employed and is not intended, designed, or reasonably
anticipated." Lynchburg Foundry Co. v. Irvin, 178 Va. 265, 271,
16 S.E.2d 646, 648 (1941) (citation omitted) (toe ulceration from
work shoe and resultant foot amputation were unexpected).
Although "few people intentionally persist in a line of conduct
that expectedly results in personal injury . . . such cases can
be found." Larson, supra § 38.83(f). See Capers v. Flautt, 407
S.E.2d 660, 662 (S.C. Ct. App. 1991) (claimant's contact
dermatitis was "an event which [claimant] could anticipate given
his past experience" and was not a compensable injury by
accident); Ernest Waters Constr. Co. v. Mills, 51 So. 2d 180, 181
(Fla. 1951) (claimant's dermatitis was not compensable where it
was "activated [three times] by neglect on his part to obey his
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doctor's instructions").
In the instant case, claimant testified that he expected he
would not hurt his back when he lifted the heavy box of carpet
samples on October 3, 1994. However, on at least eight prior
occasions, claimant had required treatment for back pain after
lifting heavy items at work. Despite his experience, he did "the
same thing expecting different results." Additionally, claimant
knew that his doctor had restricted him from lifting more than
twenty-five pounds, and he knew that the lifting restriction was
intended to prevent exactly the type of injury that occurred. He
chose to ignore his doctor's orders and lifted a heavy box. The
resultant back injury was a predictable consequence of claimant's
voluntary defiance of the lifting restriction.
The Workers' Compensation Act does not contemplate benefits
for injuries voluntarily inflicted. Claimant's injury was the
expected result of an activity that violated the doctor's
specific restrictions and does not constitute an injury by
accident. 1 For this reason we hold that claimant's October 3,
1
The Workers' Compensation Commission has denied
compensation to workers whose disregard of medical restrictions
resulted in predictable injuries. "[C]laimant should have
reasonably anticipated the result that her strenuous work would
cause. We conclude that her [back] injury is the result of that
work, which was done in specific violation of restrictions placed
upon her by her doctor. . . . [C]laimant incurred no injury by
accident." Taylor v. Independent Home Health Care, File No.
1701061 (Workers' Comp. Comm'n Oct. 13, 1995). Accord Ellis v.
City of Norfolk, 68 O.I.C. 47, 52 (1989) (claimant ignored
doctor's post-hospitalization orders and "should have reasonably
anticipated the result . . . . As a consequence, [his]
application must be . . . denied"); Miller v. Dixon Lumber Co.,
67 O.I.C. 71, 74 (1988) ("claimant returned to a type of work
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1994 back injury was not compensable, and we reverse the
commission's award. 2
Reversed.
which the attending psychiatrist had advised him not to do and
. . . he predictably experienced an aggravation of his
post-traumatic stress disorder. . . . [S]ince this was the
expected result of the employee's activity . . . the incident is
not accidental in nature"); Bragg v. Buchanan Gen. Hosp., 59
O.I.C. 30, 32-33 (1980) (claimant "chose to ignore" doctors'
instructions to stay off her leg, and she "clearly did not
sustain an accidental injury . . . since the results of the
activity engaged in were the expected results of that activity");
Dobbins v. Contractors Equip. & Supply Co., 58 O.I.C. 104, 106
(1979) ("the resulting [back] strain was the expected result of
the activity engaged in and as such did not constitute an injury
by accident as that term is defined in the compensation law").
See also Brewer v. Westmoreland Coal Co., 70 O.I.C. 112 (1991)
(doctor's suggestion that claimant seek employment outside the
coal mine area was not a medical order, and claimant's back
injury was not a predictable result of claimant's continued
employment in a coal mine).
2
Because we reverse on the issue of injury by accident, we
do not reach employer's additional arguments.
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