Marley Mouldings, Inc. v. Patricia McGhee

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
MARLEY MOULDINGS, INC. AND
ZURICH INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 2272-99-3 PER CURIAM
FEBRUARY 15, 2000
PATRICIA M. McGHEE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ramesh Murthy; Rebecca E. Wallace; Penn,
Stuart & Eskridge, on brief), for appellants.
(D. Edward Wise, Jr.; Arrington, Schelin &
Herrell, on brief), for appellee.
Marley Mouldings, Inc. and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in (1) finding that Patricia M.
McGhee proved an injury by accident arising out of her
employment on August 10, 1998, and (2) rendering a review
opinion in which Chief Deputy Commissioner Mary Ann Link
participated in violation of the Workers' Compensation Act.
Upon reviewing the record and the briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. See Rule 5A:27.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "If
there is evidence, or reasonable inferences can be drawn from
the evidence, to support the Commission's findings, they will
not be disturbed on review, even though there is evidence in the
record to support a contrary finding." Morris v. Badger
Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d
876, 877 (1986).
McGhee operated an end trim saw in employer's factory. On
August 10, 1998, at 1:00 p.m., as McGhee was moving a pallet
from underneath the saw, the pallet fell into a hole. When
McGhee "jerked" the pallet to remove it from the hole, she
"popped [her] back." She did not experience pain at that time.
Several hours later, when she arose from a sofa at home, she
felt pain in her back. She took Ibuprofen and returned to work
at 6:00 a.m. the next day. At 7:15 a.m., she left work because
of back pain.
McGhee returned to work on August 18, 1998, although her
back was still hurting her. When she "jerked" a pallet that
fell into a crack, her back "pop[ped]" again. McGee obtained
the assistance of a co-worker and then reported the August 10,
1998 incident to the nurse's station.
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On August 18, 1998, McGhee was treated by Dr. Jennifer
Steiffel, a family physician, for a lumbar strain and
lumbosacral joint sprain. Before August 10, 1998, McGhee had no
history of back pain or back problems. The commission awarded
McGhee temporary total disability benefits.
II.
An "injury by accident" requires "(1) an identifiable
incident; (2) that occurs at some reasonably definite time; (3)
an obvious sudden mechanical or structural change in the body;
and (4) a causal connection between the incident and the bodily
change." Chesterfield County v. Dunn, 9 Va. App. 475, 476, 389
S.E.2d 180, 181 (1990). "[P]ain does not have to be
contemporaneous with the accident to be an injury by accident."
Ratliff v. Rocco Farm Foods, 16 Va. App. 234, 239, 429 S.E.2d
39, 42 (1993). "The actual determination of causation is a
factual finding that will not be disturbed on appeal," if
supported by credible evidence. Ingersoll-Rand Co. v. Musick, 7
Va. App. 684, 688, 376 S.E.2d 814, 817 (1989); see Code
§ 65.2-706.
McGhee testified that when she jerked the pallet to extract
it from a hole her back "popped." The medical records contain a
history consistent with that testimony. No evidence established
that McGhee had any back problems prior to the August 10, 1998
work-related incident. Based upon McGhee's testimony, the
medical records, and Dr. Paul G. Brown's deposition testimony,
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the commission could reasonably find that McGhee sustained an
obvious sudden mechanical or structural change when her back
"popped" on August 10, 1998 at work and that later she
exacerbated the injury at home and when she returned to work on
August 18, 1998. Accordingly, we find that credible evidence
supports the commission's conclusion that McGhee suffered a
compensable injury by accident.
III.
Employer contends that the commission did not comply with
the review process prescribed by the Act and that, therefore,
the opinion issued by the commission is illegal and invalid.
On the date on which Deputy Commissioner Stevick's opinion
was reviewed, the commission was comprised of Commissioner
Lawrence Tarr, the "employer representative," Code
§ 65.2-200(D), Commissioner William Dudley, the "neutral
member," Code § 65.2-200(B), and Chairperson Virginia Diamond,
the "employee representative." Code § 65.2-200(D).
Commissioner Tarr, however, did not participate in the
commission's review of McGhee's case. Rather, Chief Deputy
Commissioner Link, who is employed by the commission,
participated in the review of McGhee's case and the rendering of
the opinion of the full commission.
Code § 65.2-704(B) states as follows:
Any member of the Commission who hears the
parties at issue and makes an award . . .
shall not participate in a rehearing and
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review of such award provided under [Code]
§ 65.2-705. When a member is absent or
prohibited by the provisions of this
subsection from sitting with the full
Commission to hear a review, the Chairman
shall appoint one of the deputies to sit
with the other Commission members.
Employer argues that the first hearing was not before the
full commission so the exception set forth in Code § 65.2-705(A)
was not triggered. In addition, employer contends that no
finding had been made and the parties were not advised that one
of the members of the commission would be "absent."
The record does not reflect that employer raised the issue
of Chief Deputy Commissioner Link's participation in the review
of this case before the commission. Although the commission did
not allow oral argument in this case and employer did not know
the composition of the commission until the review opinion was
issued, employer had the opportunity to object after the opinion
was rendered and before it became final thirty days later.
Employer did not make a motion to reconsider or to vacate the
opinion during the thirty-day period that the decision remained
within the jurisdiction of the commission. We will not consider
an issue not brought before the commission for the first time on
appeal. See Green v. Warwick Plumbing & Heating Corp., 5 Va.
App. 409, 412-13, 364 S.E.2d 4, 6 (1988); Rule 5A:18.
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For the reasons stated, we affirm the commission's
decision.
Affirmed.
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