Miller & Long Co. Inc. v. Jerry M. Blake

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitpatrick, Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
MILLER & LONG COMPANY, INC. AND
HARTFORD CASUALTY INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 0939-99-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE 27, 2000
JERRY M. BLAKE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William S. Sands, Jr. (John C. Duncan, III;
Duncan & Hopkins, P.C., on brief), for
appellant.
Kenneth Warren Smith for appellee.
Miller & Long Co., Inc. and its insurer ("employer")
contend that the Workers' Compensation Commission ("commission")
erred in awarding medical and temporary total disability
benefits to Jerry M. Blake ("claimant"). The sole issue before
the Court is whether credible evidence supports the commission's
finding that claimant's injury arose out of his employment.
Finding the evidence insufficient, we reverse.
I.
Claimant has been employed as a carpenter for approximately
thirteen years. The evidence established that on or about
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
March 26, 1998, shortly after arriving at the job site and
punching in, claimant picked up his tool bag and his lunch bag
and began climbing twenty flights of stairs to begin work.
Claimant climbed four flights of stairs and on the fourth floor
landing, as he turned to begin the fifth flight of stairs, he
"just heard a pop in [his] knee". Claimant climbed the
remaining flights of stairs and reported no difficulty or pain
until two or three hours later. He worked the remainder of the
day and returned to work the next day. His supervisor gave him
permission to leave an hour early due to the pain he was
experiencing in his knee.
Claimant sought medical treatment from Alexandria Hospital
on April 2, 1998, and he then began treatment with Dr. Kavjian
on April 13, 1998. Dr. Kavjian diagnosed complex tears of the
medial meniscus and degenerative joint disease. In his report
of April 13, 1998, Dr. Kavjian stated that claimant was walking
up steps and pivoted on his right knee when he sustained the
injury. Claimant underwent arthroscopic surgery on April 29,
1998. He saw Dr. Kavjian several times post surgery for
follow-up and was released to return to work without
restrictions on June 11, 1998.
Claimant filed a claim for benefits. Following a hearing,
the deputy commissioner found that "there was no evidence that
the injury arose out of his employment. His evidence did not
show that any defect in the stairs or any condition peculiar to
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his employment which (sic) caused him to injure himself."
Accordingly, the deputy commissioner denied the claim for
benefits.
Claimant appealed and the commission reversed the deputy
commissioner's decision. The commission found that
Blake was required to climb four flights of
stairs while carrying a sixty-pound bag of
tools, then pivot on his right knee in order
to continue to the next flight of stairs.
We find that this significant work related
exertion contributed to his injury, and
constitutes an actual risk of his
employment. The demands of his work
required him to carry the heavy tool bag up
the stairs. His injury did not result from
the simple act of turning on the landing
without the intervention of any hazards of
his employment. To the contrary, it
resulted from the stressful demands of his
work which required him to lug a heavy tool
bag, a risk which peculiarly arose from his
employment.
(Citation omitted).
II.
Employer contends that no credible evidence supports the
commission's finding that claimant's injury arose out of his
employment.
"On appeal, we view the evidence in the light most
favorable to the claimant, who prevailed before the commission."
Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d
335, 340 (1998) (citations omitted). "'Decisions of the
commission as to questions of fact, if supported by credible
evidence, are conclusive and binding on this Court.'" WLR Foods
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v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997)
(quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227,
229, 409 S.E.2d 824, 826 (1991)). "'The fact that there is no
contrary evidence in the record is of no consequence.'" Id.(quoting Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894,
407 S.E.2d 32, 35 (1991)).
"An accident arises out of the employment if there is a
causal connection between the claimant's injury and the
conditions under which the employer requires the work to be
performed." Grove v. Allied Signal, Inc., 15 Va. App. 17, 19,
421 S.E.2d 32, 34 (1992) (internal quotations and citations
omitted). "[T]he arising out of test excludes 'an injury which
comes from a hazard to which the employee would have been
equally exposed apart from the employment. The causative danger
must be peculiar to the work, incidental to the character of the
business, and not independent of the master-servant
relationship.'" County of Chesterfield v. Johnson, 237 Va. 180,
183-84, 376 S.E.2d 73, 75 (1989) (quoting United Parcel Serv. v.
Fetterman, 230 Va. 257, 258-59, 336 S.E.2d 892, 893 (1985)).
This case is controlled by County of Chesterfield v.
Johnson, 237 Va. 180, 376 S.E.2d 73 (1989). In that case, the
Supreme Court stated there must be evidence of a link between
the work-related condition or event and the injury. See id. at
186, 376 S.E.2d at 79. In the instant case, the evidence
established no defect in the stairs and no condition peculiar to
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claimant's employment that caused his injury. Claimant's
testimony was that he simply pivoted on his right knee to make a
turn to ascend the fifth flight of steps, including the
following:
Well, going up the steps, just –- I, I did
remember that the fourth floor, and in going
to the fifth floor, turning you know.
Because each, each step has got like, go up,
then turn, and then, and then you're on each
floor. But when I went up to like the
fourth floor to turn, I, I just heard a pop
in my knee . . . .
In response to questioning by the deputy commissioner, claimant
testified that he carried a tool bag that weighed "probably
sixty pounds."
The claimant failed to make any causal connection between
the weight of the tool bag he had carried up the stairs and the
pivoting movement he was making when he heard the pop in his
knee. In describing how he sustained the injury, he gave no
testimony regarding the tool bag or its weight. Additionally,
no medical evidence provided any causal connection to the
carrying of the tool bag. Thus, the claimant failed "to show
that the conditions of the workplace or that some significant
work related exertion caused the injury." Plumb Rite Plumbing
Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306
(1989). "The mere happening of an accident at the workplace,
not caused by any work related risk or significant work related
exertion, is not compensable." Id.- 5 -
While the commission may make reasonable inferences from
the testimony presented, see Farrar, 13 Va. App. at 229, 409
S.E.2d at 877, there is no evidence in this case which would
support the inference that the tool bag contributed to the
claimant's knee injury. The claimant does not mention it in any
way as contributing to the injury or that it was strenuous or
that it was a risk of his employment. The medical evidence
mirrors the claimant's testimony regarding the circumstances
surrounding the injury and does not include anything that would
support the commission's speculation that the carrying of the
tool bag constituted a work-related risk that gave rise to the
injury.
For the foregoing reasons, we reverse.
Reversed.
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