Donna Mitchell v. The Miller Group and Pennsylvania Manufacturing Association Insurance Co. ( 2005 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Felton and Kelsey
Argued at Richmond, Virginia
DONNA MITCHELL
MEMORANDUM OPINION* BY
v. Record No. 1555-04-2 JUDGE ROBERT J. HUMPHREYS
FEBRUARY 8, 2005
THE MILLER GROUP AND PENNSYLVANIA
MANUFACTURING ASSOCIATION INSURANCE CO.
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Jean M. McKeen (Fitzgerald, Tomlin & McKeen, PLLC, on briefs),
for appellant.
Iris W. Redmond (Midkiff, Muncie & Ross, P.C., on brief), for
appellees.
Appellant Donna Mitchell (“Mitchell”) appeals a decision from the Workers’
Compensation Commission denying her request for temporary total disability benefits. Mitchell
contends that the commission erred in finding that she failed to carry her burden of proof to
establish an injury by accident arising out of the course of her employment with The Miller
Group (“employer”). For the reasons that follow, we hold that the commission did not err, and
we therefore affirm the denial of temporary total disability benefits.1
On appeal from a decision of the Workers’ Compensation Commission, the evidence and
all reasonable inferences that may be drawn from that evidence are viewed in the light most
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication. Moreover,
as this opinion has no precedential value, we recite only those facts necessary to our holding.
1
Mitchell also argues that the commission incorrectly determined that her request for
benefits was barred because she failed to give employer timely notice of her injury pursuant to
Code § 65.2-600. However, because we hold that the commission did not err in finding that
Mitchell failed to carry her burden of proof, we need not reach this second argument.
favorable to the party prevailing below. Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72, 577
S.E.2d 538, 539 (2003); Tomes v. James City (County of) Fire, 39 Va. App. 424, 429, 573
S.E.2d 312, 315 (2002). Here, then, we must view the facts in the light most favorable to
employer, the party prevailing before the commission.
In March and April of 2003, Mitchell worked for employer’s shipping and receiving
department. Mitchell’s job required her to lift and move a variety of products weighing between
15 and 110 pounds and ranging in size from 96 inches to 12 feet in length. As part of her regular
duties, Mitchell would lift as many as 50 boxes a day.
On April 21, 2003, Mitchell was laid off from her position with employer. On April 30,
2003, Dr. Squires, Mitchell’s primary care physician, informed Mitchell that she might have a
slipped disc in her spinal column. Dr. Squires referred Mitchell to Dr. Gruner, a neurosurgeon,
for an MRI. Mitchell received the MRI on May 21, and the results of that MRI indicated that she
had a herniated disc at the C6-7 level of her spine. After her consultation with Dr. Gruner,
Mitchell informed employer that she had a “possible slipped disc.”
Mitchell filed a claim for temporary total disability benefits on September 26, 2003,
alleging that her injury occurred “somewhere between April 1st and April 7th.” At a hearing
conducted on December 1, 2003, Mitchell testified that, one day in early April, she was stacking
boxes of shrink wrap in a closet when she felt a “burning pop” in her neck. Mitchell said that
she put the box down, walked around the loading dock for a few minutes, and then put the
remaining boxes into the closet. According to Mitchell, the boxes weighed 30 to 40 pounds a
piece.
Mitchell testified that, after finishing her regular schedule on the day of the alleged
accident, she continued to perform her regular work duties until she was laid off on April 21st.
She also testified that her symptoms became progressively worse over the two weeks following
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the alleged accident, but she did not tell employer about her injury “[b]ecause [she] got bumped
and bruised and cut all the [time],” and she “didn’t think it was something that [she] had done
that was going to require medical treatment,” but was “just a pulled muscle.” According to
Mitchell, she believed that her symptoms – which consisted primarily of numbness in her left
arm – were attributable to a heart problem. She also testified that, before the alleged incident at
the beginning of April, she “never had any problem with [her] neck, period.”
At Mitchell’s appointment with Dr. Squires on April 30, Mitchell reported a two-week
history of left arm pain and a stiff neck. Mitchell conceded on cross-examination that she did not
tell Dr. Squires about the alleged accident, but she asserted that her failure to do so was because
she “[d]idn’t make the connection” between the incident and her symptoms.
According to Dr. Gruner’s notes, Mitchell informed him that she had done “a fair amount
of heavy work in the last few years.” She also told Dr. Gruner that, a few weeks before the MRI,
she began to experience pain in her left shoulder that worsened over the next few days. Mitchell
admitted, however, that she did not tell Dr. Gruner anything about the alleged accident.
On June 4, 2003, Mitchell received an epidural injection from Dr. Long, a physician who
treats chronic pain. Dr. Long’s notes indicate that Mitchell told him that she “was injured on the
job” while “she was stacking a supply closet with 30-pound boxes . . . and lifted one about
shoulder height and felt a pop and snap in her neck, going down to the left neck and arm. Since
that time she has had numbness, burning, and weakness in the left arm.” According to
Dr. Long’s notes, Mitchell also told Dr. Long that she believed the injury was not covered by
workers’ compensation because she was fired the day after the accident.
By opinion dated December 22, 2003, the deputy commissioner denied Mitchell’s claim,
holding that she failed to meet her burden of proving an injury by accident. The deputy
commissioner reasoned that:
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The claimant testified at hearing that she lifted a box at work and
felt a burning sensation in her neck and eventually symptoms of
pain and numbness in the arm. The claimant went to the doctor
approximately two weeks later but apparently did not report any
lifting episode. The claimant subsequently saw Dr. Gruner whose
notes reflect on the development of pain in the course of the
claimant’s employment. It is not until the claimant saw Dr. Long
on June 4, 2003 that there is any report of an onset of pain with
lifting and even this report is somewhat at odds with the claimant’s
testimony. Based on the evidence as a whole, we are not
persuaded that the claimant sustained an injury by accident as
alleged.
On appeal, the full commission, with one commissioner dissenting, affirmed the denial of
Mitchell’s claim. The commission noted that, although Mitchell “described a reasonably specific
incident,” she was unable to identify the date that the alleged accident took place. The
commission observed that Mitchell did not seek medical attention until two weeks after the
alleged injury, also noting that she neglected to inform either Dr. Squires or Dr. Gruner about the
“work-related lifting incident.” The commission concluded that, although “[i]nability to identify
a specific accident date, a failure to immediately report the accident to her employer, a delay in
seeking treatment, and a delay in informing physicians about the alleged accident are not
individually fatal to a claim,” those factors, considered collectively, supported the deputy
commissioner’s decision “that the claimant failed to satisfy her burden of proving a compensable
injury by accident resulting from an identifiable accident.”
On appeal, Mitchell contends that the commission erred in holding that she failed to
sustain her burden of proving an injury by accident, reasoning that her “uncontradicted
testimony” was sufficient to prove, by a preponderance of the evidence, that she “suffered a
compensable work related injury . . . when she felt the pop and burning sensation while lifting
the seventh box of shrink wrap at work.” We disagree.
On appeal, “decisions of the commission as to questions of fact, if supported by credible
evidence, are conclusive and binding on this Court.” Manassas Ice & Fuel Co. v. Federated
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Mutual Ins. Co., 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991); see also Commonwealth v.
Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). However, “this Court is not bound by
the legal determinations made by the commission.” Robinson v. Salvation Army, 20 Va. App.
570, 572, 459 S.E.2d 103, 104 (1995). Whether an employee has suffered an “injury by
accident” is a mixed question of law and fact. See Goodyear Tire & Rubber Co. v. Harris, 35
Va. App. 162, 167-68, 543 S.E.2d 619, 621 (2001). Accordingly, we will defer to the
commission’s factual findings, but we review de novo the final determination of whether
Mitchell failed to carry her burden of proof.
To establish an “injury by accident,” a claimant must prove: (1) that the injury appeared
suddenly, at a particular time and place and upon a particular occasion, (2) that it was caused by
an identifiable incident or sudden precipitating event; and (3) that it resulted in an obvious
mechanical or structural change in the human body. See Southern Express v. Green, 257 Va.
181, 187, 509 S.E.2d 836, 838 (1999); Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865
(1989); Pro-Football, Inc. v. Uhlenhake, 37 Va. App. 407, 413, 558 S.E.2d 571, 574 (2002).
Also, although the claimant’s recognition of the injury “does not have to be contemporaneous
with the accident,” Ratliff v. Rocco Farm Foods, 16 Va. App. 234, 239, 429 S.E.2d 39, 42
(1993), an “injury by accident” does not include “cases in which the injury is gradually incurred
or incurred at an unknown time,” Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 232, 409
S.E.2d 824, 828 (1991); see also Stenrich Group v. Jemmott, 251 Va. 186, 467 S.E.2d 795
(1996). Thus, unless a claimant can identify her injury with a “specific movement made or
action taken at a particular time at work . . . [s]he cannot recover compensation.” Badische Corp.
v. Starks, 221 Va. 910, 913, 275 S.E.2d 605, 607 (1981).
Here, there is no question that Mitchell’s herniated disc constitutes a “mechanical or
structural change in the human body.” See, e.g., R&R Constr. Corp. v. Hill, 25 Va. App. 376,
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379, 488 S.E.2d 663, 664 (1997) (“A disk herniation is a mechanical or structural change in the
body.”) Also, as noted by the commission, Mitchell “described a reasonably specific event,” and
she testified that her injury was caused by that event.
However, the deputy commissioner made no factual finding that the event Mitchell
described did, in fact, occur. Nor did the deputy commissioner find that Mitchell’s injury
resulted from the event she described. Rather, the deputy commissioner’s report makes plain
that, in the absence of sufficient corroborating evidence, he was unpersuaded that Mitchell’s
injury was actually caused by a lifting accident at work.
Specifically, the deputy commissioner noted that Mitchell did not describe the alleged
accident to either Dr. Squires or Dr. Gruner, the two physicians providing her primary treatment
for the injury. Dr. Gruner’s report indicates instead that Mitchell had told him “she was in the
normal performance of her job when she began to notice some pain by the left shoulder,” which
differs from her later description of the incident. The first documentation of the alleged accident
appears in the notes from Mitchell’s appointment with Dr. Long on June 4, 2003 – a full two
months after the alleged incident. Moreover, as noted by the deputy commissioner, Dr. Long’s
report “is somewhat at odds with the claimant’s testimony.” Dr. Long’s report indicates that
Mitchell told him that the lifting accident occurred the day before she was fired – which would
have been April 20, 2003. However, Mitchell has maintained in this proceeding that the incident
occurred during the first week of April.
The commission’s report expresses similar doubts about whether the alleged event
actually caused Mitchell’s injury. Specifically, the commission points to Mitchell’s “[i]nability
to identify a specific accident date,” her “failure to immediately report the accident to her
employer,” the “delay in seeking treatment,” and her “delay in informing treating physicians
about the alleged accident.”
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In a proceeding before the Workers’ Compensation Commission, as in any other legal
proceeding, the deputy commissioner, as the trier of fact, “is free to believe or disbelieve, in
whole or in part, the testimony of any witness.” English v. Commonwealth, 43 Va. App. 370,
371, 598 S.E.2d 322, 323 (2004) (citing Rollston v. Commonwealth, 11 Va. App. 535, 547, 399
S.E.2d 823, 830 (1991)). Here, then, the deputy commissioner was entitled to disbelieve
Mitchell’s self-serving testimony and resolve any evidentiary conflict in favor of employer. See
id. Thus, we cannot say as a matter of law that the commission erred when if found that Mitchell
failed to meet her burden of proof. Accordingly, we affirm the commission’s denial of
temporary total disability benefits.
Affirmed.
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