Ruth Deard v. Riverside Regional Med Center ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and McClanahan
Argued at Chesapeake, Virginia
RUTH DEARD
MEMORANDUM OPINION* BY
v. Record No. 3276-02-1 JUDGE ELIZABETH A. McCLANAHAN
AUGUST 12, 2003
RIVERSIDE REGIONAL MEDICAL CENTER AND
RECIPROCAL OF AMERICA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
W. Mark Broadwell (Forbes & Broadwell,
on brief), for appellant.
Karen A. Gould (Gould, Redmond & Russell,
on brief), for appellees.
Ruth Deard (claimant) appeals from a decision of the
Virginia Workers' Compensation Commission denying her claim for
benefits. Claimant contends that the commission erred in
finding that she failed to prove the occurrence of an injury by
accident on September 18, 2000, October 19, 2000 or February 1,
2001. 1 For the reasons that follow, we affirm the decision of
the commission.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
The claim with regard to the September 18, 2000 date was
abandoned by claimant's counsel at hearing.
I. BACKGROUND
Claimant, who worked as a medical records clerk for
employer, had a longstanding history of asthma symptoms. She
stated, however, that until 1998 she had only "moderate" asthma
symptoms, occurring approximately four times per year. She
maintained that in 1998, she suffered a "severe asthma attack"
during the renovation of her workspace, resulting in treatment
at an emergency room. Doctor's records show that claimant also
suffered attacks outside of work, including one incident after
walking her dog and another following a walk across a parking
lot. Claimant smoked approximately 15 cigarettes per day from
age 25 to 50.
Claimant alleged that exposure to specific substances at
employer's place of business exacerbated her symptoms. One
incident occurred on October 19, 2000, when spray cleaner used
on a nearby desk caused claimant to have difficulty breathing,
tightening in her throat, shortness of breath, and a tightening
of her chest. She subsequently received treatment at an
emergency room.
Another incident, which occurred on February 1, 2001, took
place shortly after claimant arrived at work. A brown substance
on the floor, that claimant later learned was ceiling tile dust,
caused her to wheeze and experience a tightening of the chest.
She received treatment at an emergency room and was admitted to
the hospital, where she was treated for five days.
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II. ANALYSIS
On appeal, the Court views 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).
Unless the Court can say as a matter of law that the claimant's
evidence sustained her burden of proof, the commission's
findings are binding and conclusive. Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
"Factual findings by the commission that are supported by
credible evidence are conclusive and binding upon this Court on
appeal." So. Iron Works, Inc. v. Wallace, 16 Va. App. 131, 134,
428 S.E.2d 32, 34 (1993).
The Virginia Workers' Compensation Act sets forth the
circumstances under which a covered employee can receive
benefits. The test of compensability is that the injury must
have arisen "by accident arising out of and in the course of the
employment . . . ." Code § 65.2-101. Thus, the analysis is one
of whether claimant sustained an "injury by accident" arising
out of her employment on the two occasions claimed.
An accident requires some degree of unexpectedness and some
degree of time specificity as to the occurrence of the incident
that gives rise to the injury. "The definition of accident
generally assented to is an event happening without any human
agency, or, if happening through human agency, an event which,
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under the circumstances, is unusual and not expected by the
person to whom it happens." Vance on Insurance, 569 (cited in
Big Jack Overall Co. v. Bray, 161 Va. 446, 451-52, 171 S.E. 686,
687 (1933)).
"The injury, to be regarded as 'by
accident,' must be received . . . at a
particular time and in a particular place
and by a particular accident. And the
accident must be something the date of which
can be fixed. It is not enough that the
injury shall make its appearance suddenly at
a particular time and upon a particular
occasion." In other words, the "incident,"
the act done or condition encountered, "must
be shown to have occurred at some reasonably
definite time."
On the other hand, . . . "injury of
gradual growth, . . . not the result of some
particular piece of work done or condition
encountered on a definite occasion, but
caused by the cumulative effect of many acts
done or many exposures to conditions
prevalent in the work, no one of which can
be identified as the cause of the harm, is
definitely excluded from compensation."
Aistrop v. Blue Diamond Coal Co., 181 Va. 287, 293, 24 S.E.2d
546, 548 (1943) (citation omitted).
The employee must identify exactly what she was doing at
the time she was injured, identify that the action actually
caused her claimed injury at that reasonably definite time, and
that the injury itself occurred at a specific time. Kraft Dairy
Group, Inc. v. Bernardini, 229 Va. 253, 329 S.E.2d 46 (1985).
Proof is required of an "accident, identifiable incident or
sudden precipitating event." Lane Co. v. Saunders, 229 Va. 196,
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199, 326 S.E.2d 702, 704 (1985). See also Pro-Football, Inc. v.
Uhlenhake, 37 Va. App. 407, 558 S.E.2d 571 (2002) (holding
claimant's knee injury, which the evidence showed was the
cumulative result of playing football over many years, was not
compensable because it was not proven that the knee injury
resulted from a specific identifiable incident).
The parties in this case stipulated that claimant suffered
from a pre-existing respiratory condition. The fact that an
employee is predisposed to further injury as a result of a prior
injury will not ordinarily defeat a claim for compensation. An
employer takes his employee as he finds him, with all of his
infirmities and pre-existing disabilities. So. Iron Works, 16
Va. App. 131, 428 S.E.2d 32. However, compensability in these
situations depends on evidence that the accidental injury
materially aggravated or accelerated the pre-existing condition
and, further, that the condition was the direct and immediate
cause of the disability. Liberty Mut. Ins. Co. v. Money, 174
Va. 50, 4 S.E.2d 739 (1939); Pendleton v. Flippo Constr. Co., 1
Va. App. 381, 339 S.E.2d 210 (1986) (injuries due solely to the
natural progress of pre-existing diseases are not compensable);
Nolan v. Global One Communications, LLP, VWC File No. 191-93-58
(2001) (claimant must prove an identifiable incident caused a
sudden mechanical change or structural bodily change rather than
merely a gradual worsening over a period of time to qualify as
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an injury by accident); cf. Russell Stover Candies v. Alexander,
30 Va. App. 812, 520 S.E.2d 404 (1999) (affirming the
commission's finding that claimant's benign, pre-existing asthma
was aggravated by exposure to bleach vapor and, therefore, such
aggravation was an injury by accident). Therefore, the question
in this case is whether claimant met her burden of proof on
causation on the issue of whether she suffered injury by
accident.
The commission analyzed the medical evidence concerning
each alleged incident, and found that claimant did not satisfy
the burden of proof that she suffered injury by accident on the
dates at issue. The record shows that five days after the
alleged October 19, 2000 incident, claimant's doctor noted she
suffered an "asthma attack induced at work" sometime in the
previous week. The commission concluded that claimant suffered
problems due to general environmental triggers and that the
medical evidence did not link claimant's symptoms to any
particular exposure. Therefore, claimant did not meet the
burden of proof required to support an injury by accident.
The medical evidence regarding the alleged February 1, 2001
incident includes contemporaneous notes from doctors who treated
claimant with language such as "possibly related," "possibly
associated," "some type of environmental allergen" and
"allergens of unknown etiology." Such statements indicate that
there was not a clear causal connection between the ceiling dust
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and claimant's attack. Accordingly, the commission chose not to
believe the deposition of claimant's family physician,
Dr. Provenzano, who testified that exposures on the claimed
dates aggravated claimant's pre-existing condition and resulted
in a sudden mechanical or structural change to her body.
The commission found that the facts of this case paralleled
the case of Nolan, VWC File No. 191-93-58, where the medical
evidence showed that the employee had numerous reactions during
the months that preceded the alleged exposure, and was treated
for asthma attacks for some time caused by a "sick building."
The evidence in this case showed that claimant's alleged
exposures in her workplace were not individual accidents, but
were effects of claimant's longstanding asthma, which was not
caused by her work. The exposures to possible irritants at work
were not particularized any differently than exposures to
substances such as dust at claimant's own home, paint fumes at
her brother's home, exposure to heat and humidity, or dander
from her dog. The evidence shows that claimant did not
experience an injury by accident by the alleged exposures at her
workplace such that she experienced a sudden mechanical change
or structural bodily change. Claimant's situation was a
condition that worsened over a period of time, by various
exposures to irritants in different places and, thus, the
claimed exposures at her workplace did not qualify as
compensable injuries by accident.
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The commission's findings are supported by credible
evidence. Therefore, those findings are conclusive and binding
upon this Court, and the Court affirms the commission.
Affirmed.
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