Goodyear Tire, etc. v. Larry D. Lanum ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Salem, Virginia
GOODYEAR TIRE & RUBBER CO., INC., ET AL.
v. Record No. 1350-95-3 MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
LARRY D. LANUM JUNE 18, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Martha White Medley (Daniel, Vaughan, Medley
& Smitherman, P.C., on brief), for
appellants.
No brief or argument for appellee.
Employer, Goodyear Tire & Rubber Co., Inc., appeals the
decision of the Virginia Workers' Compensation Commission,
awarding medical benefits to claimant, Larry D. Lanum. The
commission found claimant suffered a compensable injury by
accident arising out of and in the course of his employment.
Employer contends claimant's injury did not "arise out of" his
employment. Finding no error, we affirm.
Claimant's job duties included filing three-by-seven inch
aperture cards in the bottom drawer of a knee-high cabinet for
1
approximately ten to fifteen minutes each day. In conducting
this task, claimant bent at the waist, at approximately forty-
five degrees, and tilted his head back to see through his
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
An aperture card is a small negative of a drawing.
bifocals. Claimant testified that on July 15, 1994 he
experienced a sudden pain in his neck while in this position. He
stated that the pain grew progressively worse the next day and
through the summer and fall. Claimant's medical records also
indicate that claimant's pain gradually intensified.
Following his injury, claimant continued to work and perform
his usual tasks. Claimant first sought medical attention for his
condition on August 10 from the plant dispensary where he
complained of neck pain and numbness and tingling in his right
shoulder. In September, Dr. Lawrence F. Cohen, claimant's
attending physician, diagnosed claimant with a C3-4 herniated
disk. Dr. Cohen's "Attending Physician's Report" notes that
claimant's condition resulted from a hyperextension of his neck
at work on July 15. Claimant subsequently underwent surgery.
The deputy commissioner found claimant suffered a
compensable injury by accident arising out of and in the course
of his employment. The deputy commissioner made specific
findings that claimant was injured at work and that the injury
was not a pre-existing condition. However, the deputy
commissioner did not make a specific finding with respect to
whether claimant's injury arose out of and in the course of
employment.
The full commission affirmed. It found the evidence
sufficient to establish the specific time and place of claimant's
injury and further found that claimant's employment required him
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to file the cards and required the work be performed in an
unusual or awkward position. The ability to do the filing in a
different manner was found to be of no consequence.
I.
"Injury by accident" is defined, within the context of the
Workers' Compensation Act as "an identifiable incident or sudden
precipitating event [that results] in an obvious sudden
mechanical or structural change in the body." Morris v. Morris,
238 Va. 578, 589, 385 S.E.2d 858, 865 (1989). By contrast, a
gradually incurred injury is not an injury by accident within the
meaning of the Act. Middlekauff v. Allstate Insurance Co., 247
Va. 150, 154, 439 S.E.2d 394, 397 (1994). Though an injury by
accident must be "``bounded with rigid temporal precision,' . . .
[a]n injury need not occur within a specific number of seconds or
minutes . . . but instead, must occur within a ``reasonably
definite time.'" Brown v. Caporaletti, 12 Va. App. 242, 243-44,
402 S.E.2d 709, 710 (1991) (quoting Morris, 238 Va. at 589, 385
S.E.2d at 865 (1989)).
On appeal, this Court construes the evidence in the light
most favorable to the party prevailing below. R.G. Moore Bldg.
Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). The commission's findings of fact will be upheld if
supported by credible evidence. James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
We find credible evidence to support the commission's
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finding that claimant suffered an "injury by accident." Claimant
testified to a "sudden" pull in his neck, occurring during a ten
to fifteen minute period on a specific date. Moreover, the
medical report of claimant's treating physician notes that the
condition was due to claimant hyperextending his neck at work on
that date.
II.
To be compensable, an injury by accident must "aris[e] out
of and in the course of employment." Code § 65.2-101; County of
Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74
(1989). 2 The claimant bears the burden of proving his injury
arose out of his employment. Marketing Profiles, Inc. v. Hill,
17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993). The issue of
whether an injury arose out of employment is a mixed question of
law and fact, reviewable on appeal. Southside Training Center v.
Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995).
However, the commission's underlying findings of fact will not be
disturbed on review if credible evidence supports them. See
Hill, 17 Va. App. at 435, 437 S.E.2d at 729-30; Ogden Allied
Aviation v. Shuck, 17 Va. App. 53, 55, 434 S.E.2d 921, 922
(1993), aff'd on reh'g, 18 Va. App. 756, 446 S.E.2d 898 (1994).
The phrase "arising out of" refers to the origin or cause of
the injury. Johnson, 237 Va. at 183, 376 S.E.2d at 74 (comparing
2
Employer does not contend that claimant's injury did not
arise in the course of his employment; the issue is solely
whether his injury arose out of his employment.
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phrase "arising in the course of," which refers to time, place,
and circumstances under which accident occurred); Marion
Correctional Center v. Henderson, 20 Va. App. 477, 479, 458
S.E.2d 301, 303 (1995). As employer argues, Virginia has
rejected the "positional risk" test in favor of the "actual risk"
test. E.g., Johnson, 237 Va. at 185, 376 S.E.2d at 75-76. In
Virginia, "[t]he mere happening of an accident at the workplace,
not caused by any work related risk or significant work related
exertion, is not compensable." Shuck, 17 Va. App. at 54, 434
S.E.2d at 922 (quoting Plumb Rite Plumbing Service v. Barbour, 8
Va. App. 482, 484, 382 S.E.2d 305, 306 (1989)). The "actual
risk" test "``requires only that the employment expose the workman
to a particular danger from which he was injured, notwithstanding
the exposure of the public generally to like risks.'" Henderson,
20 Va. App. at 480, 458 S.E.2d at 303 (quoting Olsten v.
Leftwich, 230 Va. 317, 319, 336 S.E.2d 893, 894 (1985)). Thus,
to prove the injury arose out of the employment, a claimant must
establish "a causal connection between the conditions under which
the work is required to be performed and the resulting injury."
Henderson, 20 Va. App. at 480, 458 S.E.2d at 303; Shuck, 17 Va.
App. at 54, 434 S.E.2d at 922 (quoting Barbour, 8 Va. App. at
484, 382 S.E.2d at 306) ("claimant must ``show that the conditions
of the workplace or that some significant work related exertion
caused the injury'"). "The causative danger must be peculiar to
the work, incidental to the character of the business, and not
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independent of the master-servant relationship." United Parcel
Service v. Fetterman, 230 Va. 257, 258-59, 336 S.E.2d 892, 893
(1985).
Thus, in cases where an injury does not follow "as a natural
incident of the work" and does not result from "exposure
occasioned by the nature of the employment," the injury does not
"arise out of" employment. Id. at 258-59, 336 S.E.2d at 893
(back pain resulting from bending to tie shoe while at work did
not arise out of employment); see also Johnson, 237 Va. at 186,
376 S.E.2d at 76 (fall resulting from mere act of turning on a
normal flight of stairs while at work did not arise out of
employment); Central State Hospital v. Wiggers, 230 Va. 157,
159-60, 335 S.E.2d 257, 259 (1985) (twisted ankle resulting from
mere act of walking while at work did not arise out of
employment); Richmond Memorial Hospital v. Crane, 222 Va. 283,
285-86, 278 S.E.2d 877, 879 (1981) (leg injury resulting from
mere act of walking while at work did not arise out of
employment); Barbour, 8 Va. App. at 484, 382 S.E.2d at 306 (back
injury resulting from the mere act of bending over to pick up
pipe while at work did not arise out of employment).
However, an injury may be found to arise out of employment
when it is occasioned by the nature of the employment itself.
See Henderson, 20 Va. App. at 481, 458 S.E.2d at 303 (injury
resulting from fall on normal flight of stairs arose out of
employment because work required claimant to observe guard towers
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while descending stairs); Brown, 12 Va. App. at 244-45, 402
S.E.2d at 710-11 (1991) (injury resulting from lowering 100 pound
furnace and cutting and fitting motions performed while bent over
arose out of employment because such risks were encountered
solely due to nature of job); Grove v. Allied Signal, Inc., 15
Va. App. 17, 21, 421 S.E.2d 32, 34-35 (1992) (back injury
resulting from bending, crouching, or squatting to perform work
task arose out of employment); Shuck, 17 Va. App. at 54-55, 434
S.E.2d at 922 (neck injury resulting from tilting head back to
look directly overhead to monitor fuel gauges arose out of
employment).
Here, the commission relied on Shuck in finding claimant's
neck injury arose out of his employment. The commission found
the position claimant maintained while filing the aperture cards
was unusual or awkward. Employer contends claimant's condition
was not unusual since he could have found himself in the same
position outside the work environment. However, the test is
whether claimant's injury resulted from an exposure to risk
occasioned by the nature of his employment, "notwithstanding the
exposure of the public generally to like risks." Henderson, 20
Va. App. at 480, 458 S.E.2d at 303 (quoting Olsten, 230 Va. at
319, 336 S.E.2d at 894). Here, claimant maintained his "awkward"
body position in order to accomplish an employment related task.
Employer further argues that other means were available to
claimant for performing the task. However, the test is not
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whether the actual act, movement, or "body contortion" which
resulted in injury might have been avoided by using other
available methods to perform the work. Rather, where the injury-
producing act, movement, or "contortion" is inherent in the
nature of the employment, it matters not that other approaches to
the task are available to the claimant.
For these reasons, we affirm the commission's decision.
Affirmed.
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