Southern Express v. Clara Louise Green , 26 Va. App. 439 ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia
SOUTHERN EXPRESS AND HARLEYSVILLE
MUTUAL INSURANCE COMPANY
OPINION BY
v. Record No. 1316-97-2 JUDGE JAMES W. BENTON, JR.
FEBRUARY 3, 1998
CLARA LOUISE GREEN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
S. Vernon Priddy, III (William B. Judkins;
Sands, Anderson, Marks & Miller, on brief),
for appellants.
No brief or argument for appellee.
Southern Express contends the Workers' Compensation
Commission erred by awarding benefits to Clara Louise Green for
injuries she sustained while working in a refrigerated room at a
Southern Express convenience store. Relying upon Morris v.
Morris, 238 Va. 578, 385 S.E.2d 858 (1989), and The Stenrich
Group v. Jemmott, 251 Va. 186, 467 S.E.2d 795 (1996), Southern
Express argues that Green's injury was not an "injury by
accident" within the meaning of Code § 65.2-101 because it was a
gradually incurred injury or a cumulative trauma condition. We
disagree, and we affirm the commission's award.
I.
The evidence proved that on June 22, 1996, Green was working
at a Southern Express convenience store stacking beer and soft
drinks in a refrigerated room. Green worked in the refrigerated
room from 2:00 a.m. until 6:00 a.m. wearing only a short-sleeved
shirt and no gloves. She testified that she was unable to leave
the room because she could not get the door open. She further
testified that when she came out of the refrigerated room at the
end of her work shift, she was cold and shivering. She testified
that her "hands had gotten all balled up and [her] face had begun
to -- had sores on it." Later that day, she went to the
hospital.
The store manager testified that Green had undergone a
thirty to forty-five minute training session in the refrigerated
room because Green had not previously worked in the refrigerated
room. After the training session, Green worked in the
refrigerated room between two and three hours shelving
merchandise. The manager testified that the door to the
refrigerated room had no lock on it and that Green came out of
the area while she was working "a minimum of once, probably
twice." He said Green did not complain to him after she
completed her work.
According to the medical records, Green went to the hospital
several hours after her work shift ended, complaining of pain in
her fingers, hands, left elbow and left forearm. The doctor
diagnosed "superficial frostbite of fingers." The medical
reports indicated that Green, an insulin dependent diabetic, was
treated for frostbite in both hands and advised to wear gloves if
exposed to the cold again. A podiatrist diagnosed Green with
chilblains caused by long-term exposure to cold temperature. A
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dermatologist concurred that Green's history indicated a "cold
injury consistent with chilblains."
Green filed a workers' compensation claim, alleging injuries
resulting from her exposure to the cold at work. The commission
found that Green sustained chilblains from cold exposure at work.
Citing Byrd v. Stonega Coke & Coal Co., 182 Va. 212, 28 S.E.2d
725 (1944), the commission ruled that the testimony and medical
reports established an "injury by accident" arising out of and in
the course of Green's employment. Southern Express appeals from
the decision awarding Green the reasonable costs of her medical
care.
II.
"[G]enerally it has been held that the term 'injury,'
'personal injury,' or 'personal injury by accident,' caused by
excessive heat [or] cold . . . is embraced within the meaning of
the [Act]." Id. at 215, 28 S.E.2d at 727. In 1944, when the
Supreme Court applied that rule to uphold an award to an employee
in Byrd, the Act required an employee who sought compensation for
an injury to prove an "injury by accident arising out of and in
the course of the employment." 182 Va. at 215, 28 S.E.2d at 727.
The current version of the Act has the identical language. See
Code § 65.2-101.
In Byrd, an employee worked for ten hours around coke ovens
that reached a temperature of 2,500 degrees. 182 Va. at 214-15,
28 S.E.2d at 726-27. While the employee was breaking coke and
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pulling it from the ovens, he collapsed and died. Noting that
"[a]s an original proposition, it would seem logical to hold that
the facts as related, do not disclose an 'accident,'" id., the
Court held, however, that "if the injury or death results from,
or is hastened by, conditions of employment exposing the employee
to hazards to a degree beyond that of the public at large, the
injury or death is construed to be accidental within the meaning
of the statute." Id. at 216, 28 S.E.2d at 727. In holding that
the employee had made out a prima facie case for compensation,
the Court noted that the employee's exposure to extreme heat was
the cause of the employee's death because "it is a matter of
common knowledge that frequently persons apparently normal
collapse from exposure to extreme heat or cold." Id. at 217, 28
S.E.2d at 727.
In a later case, Robinette v. Kayo Oil Co., 210 Va. 376, 171
S.E.2d 172 (1969), the Court denied compensation to an employee
who contracted pneumonia after working for several days "without
boots, overshoes or raincoat in rainy, snowy and cold weather
during which there was standing water around the gasoline pumps"
where the employee worked. Id. at 377, 171 S.E.2d at 173.
Ruling that the employee did not prove an injury by accident, the
Court noted the following:
In the present case [the employee] contracted
pneumonia from exposure to the elements in
the regular course of his employment. He was
engaged in carrying out the duties for which
he had been employed for some six months.
There was nothing catastrophic or
extraordinary in his exposure, nor did it
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arise under emergency conditions. His
exposure was neither unexpected nor
unforeseen but was intentional, deliberate
and protracted. There is nothing to
distinguish his activities from those of
other service station attendants or other
workers who are required to do outside work
in all kinds of weather.
Id. at 381, 171 S.E.2d at 176.
Recently, this Court discussed these "exposure" decisions in
Imperial Trash Service v. Dotson, 18 Va. App. 600, 445 S.E.2d 716
(1994), and held that the more recent Supreme Court case of
Morris v. Morris, 238 Va. 578, 385 S.E.2d 858 (1989), did not
preclude recovery when the evidence proved that the employee
suffered a heatstroke while working in warm weather. The
evidence in Dotson proved the employee suffered an embolism from
heatstroke from the following activity:
On July 10, 1990, . . . Dotson drove the
truck with the windows down. It was not air
conditioned. After Dotson and Mickelson had
picked up material, weighing fifteen to
thirty pounds, at over seven hundred houses
in 86 degree temperature, Dotson became
confused and began losing his balance.
Dotson said, "this heat has gotten to me."
Mickelson, who realized that Dotson was in
some distress, placed Dotson in the shade of
a tree and finished the route alone. When
Mickelson returned to the tree, Dotson was in
critical condition. Within minutes, Dotson
was taken to the hospital, unconscious, with
a body temperature of 110 degrees.
18 Va. App. at 602, 445 S.E.2d at 717.
In Dotson, this Court ruled that the conditions of
employment caused the heatstroke because the employee was
"work[ing] in hot, humid conditions over a period of time, a
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situation to which the general public is not regularly exposed."
Id. at 605, 445 S.E.2d at 719. Furthermore, this Court held
that "[t]he fact that [the employee] lifted containers over a
brief period does not make the heatstroke [the employee] suffered
a 'gradually incurred' injury, as the employer contends." Id.
After our Dotson decision, the Supreme Court in The Stenrich
Group v. Jemmott, 251 Va. 186, 199, 467 S.E.2d 795, 802 (1996),
and Middlekauff v. Allstate Ins. Co., 247 Va. 150, 154, 439
S.E.2d 394, 397 (1994), reiterated the view that a gradually
incurred injury is not an injury by accident within the meaning
of the Act. Both Jemmott and Middlekauff cite Morris, which
states that "injuries resulting from repetitive trauma,
continuing mental or physical stress, or other cumulative events,
as well as injuries sustained at an unknown time, are not
'injuries by accident' within the meaning of Code § 65.1-7." 238
Va. at 589, 385 S.E.2d at 865. See Allied Fibers v. Rhodes, 23
Va. App. 101, 104, 474 S.E.2d 829, 830 (1996) (hearing loss
resulting from prolonged exposure to industrial noise is
noncompensable gradually incurred injury). But see Code
§ 65.2-400(C) (amended in 1997 to state that "[h]earing loss and
the condition of carpal tunnel syndrome are not occupational
diseases but are ordinary diseases of life as defined in [Code]
§ 65.2-401").
Awarding Green medical treatment for her injuries, the
commission cited Byrd and noted that "[i]t is well established
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that exposure to cold or hot temperatures resulting in conditions
such as frostbite or heatstroke may constitute an injury by
accident." Indeed, that is precisely the holding in Byrd. See
182 Va. at 217, 28 S.E.2d at 727. Because the Supreme Court has
not expressly overruled Byrd, we are unable to conclude that the
unequivocal rule in Byrd has been overruled sub silento by the
current line of decisions represented by Morris, Jemmott and
Middlekauff. Those cases did not change the elements of injury
by accident as explained in Byrd. 1 Accordingly, we hold that the
commission did not err when it concluded that a condition
resulting from exposure to extreme temperatures may still
constitute an "injury by accident."
III.
Factual findings by the commission are conclusive and
binding on appeal where credible evidence exists to support these
1
We note that other states have held that injury caused by
exposure to extremes of heat or cold constitute an exception to
the "gradually incurred" injury rule. For example, the Alabama
courts hold that the "concept of accident contemplates a
reasonably definite period of time during which the accident
manifests itself, rather than a gradual disintegration or
deterioration." Buchanan Lumber Co. v. Edwards, 531 So. 2d 1, 2
(Ala. Civ. App. 1988). However, the Alabama Supreme Court has
also held that an employee's death was caused by an "accident"
within the meaning of the workers' compensation statute when the
employee suffered an injury and died from "severe heat
exhaustion." See Ex parte Neal, 423 So. 2d 850, 853 (Ala. 1982).
"Other jurisdictions hold, with virtual unanimity, that when
the conditions of employment expose the claimant to extreme heat
or cold, injuries such as heatstroke, heat exhaustion, heat
prostration, sunstroke, freezing, and frostbite are considered
accidental." Dillingham v. Yeargin Constr. Co., 358 S.E.2d 380,
382 (N.C. 1987). See also Holley v. Owens Corning Fiberglas
Corp., 392 S.E.2d 804 (S.C. App. 1990).
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findings. Classic Floors, Inc. v. Guy, 9 Va. App. 90, 95, 383
S.E.2d 761, 764 (1989). The commission found that Green worked
in a refrigerated room for two to four hours and that Green
contracted chilblains from the cold exposure in the refrigerated
room. Credible evidence in the record supports this finding.
Green's testimony established that she was without any relief
from the cold temperatures because she was unable to open the
door. This was Green's first and only day working in the
refrigerated room, and she did not have any protective clothing.
Green was wearing a short-sleeved shirt and no gloves when she
was assigned to work in the refrigerated room for four hours.
Thus, the facts in evidence prove an extraordinary exposure that
distinguishes this case from Robinette and prove Green was
subjected to a greater hazard in the refrigerated room than she
otherwise would have been exposed. The harmful exposure that
Green experienced was due to a particular and specific work
event, as in Byrd, and was not the result of a series of events,
as in Robinette.
In addition, the commission's finding that Green contracted
chilblains from the cold exposure in the refrigerated room is
supported by credible medical evidence. Reports from the doctors
diagnosed chilblains and related it to Green's exposure to the
cold temperature in the refrigerated room. Chilblains is a
"localized erythema and doughy subcutaneous swelling caused by
exposure to the cold associated with dampness, . . . usually
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involving the hands, feet, ears, and face in children, the legs
and toes in women, and the hands and fingers in men." Dorland's
Illustrated Medical Dictionary 331 (28th ed.). 2 The medical
evidence also proved that Green suffered superficial frostbite.
"Superficial frostbite . . . may be manifested as simple
erythema." Dorland's Illustrated Medical Dictionary 665 (28th
ed.). Both conditions were the result of sudden mechanical or
structural changes in the body which occurred when Green's body
reached a critical point of chilling.
The testimony and medical evidence provide credible evidence
to support the commission's decision that Green suffered an
"injury by accident." Accordingly, we affirm the commission's
award of the reasonable cost of Green's medical treatment for her
injury.
Affirmed.
2
"Women are more often affected than men." Dr. Evans L.
Lloyd, Hypothermia and Cold Stress (1996).
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