Dan River, Inc. v. Teresa G. Morrison

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Clements
Argued at Salem, Virginia
DAN RIVER, INC.
MEMORANDUM OPINION* BY
v. Record No. 1899-01-3 JUDGE JEAN HARRISON CLEMENTS
MAY 7, 2002
TERESA G. MORRISON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
James A. L. Daniel (Elizabeth B. Carroll;
Daniel, Vaughan, Medley & Smitherman, P.C.,
on brief), for appellant.
No brief or argument for appellee.
Dan River, Inc. (employer) appeals an award by the Workers'
Compensation Commission (commission) of medical benefits to
Teresa G. Morrison (claimant). On appeal, employer contends the
commission erred in concluding that claimant sustained a
compensable injury by accident arising out of and in the course
of her employment. For the reasons that follow, we reverse the
commission's award of benefits.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
I. BACKGROUND
"By well established principles, we view the evidence in the
record in the light most favorable to the party prevailing before
the commission." Boys and Girls Club of Virginia v. Marshall, 37
Va. App. 83, 85, 554 S.E.2d 104, 105 (2001). So viewed, the
evidence established that, in June of 2000, claimant was working
for employer as a pillowcase folder. She had worked for employer
for twenty-one years, the last ten years folding pillowcases.
Normally, claimant used a folding machine to fold pillowcases,
but, in June of 2000, she began, on occasion, to also fold
pillowcases by hand.
Claimant, who is six feet one and one-half inches tall,
demonstrated the hand-folding process to the deputy commissioner
and described the process as follows: First, she removes the
pillowcase from a dolly and lays it flat on her table, which is
"about thirty-six inches high."1 She then "flip[s] the bottom
part up," "take[s] the side up to the other side," "take[s] from
one side to the next side and then back to the other side," and
flips the "bottom up to the top." On days she folded pillowcases
1
The deputy commissioner stated in his written opinion that
the table claimant used to fold pillowcases by hand was
"thirty-two inches from the floor." We find no evidence in the
record to support this finding. Claimant herself explicitly
testified that the table she used for hand-folding pillowcases
was "about thirty-six inches high."
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by hand, claimant was expected to fold at least 2,295 king-size
pillowcases.
On the first day claimant folded pillowcases by hand in June
2000, she experienced a pain in her left arm "going up toward
[her] elbow." Claimant testified that she "first felt" the pain
when, in the course of folding a pillowcase by hand, she "flipped
the bottom [of the pillowcase] up to the top." Claimant reported
the discomfort to her supervisor but was able to keep working.
She continued to experience pain in her left arm throughout the
summer and fall of 2000 whenever she folded pillowcases by hand.
After complaining to her supervisor several times about the
pain in her arm, claimant was sent to employer's health clinic on
September 13, 2000. The clinic referred her to Piedmont
PrimeCare, where she was examined and treated by Dr. Ivan Lazo.
Noting that claimant's discomfort in her left arm was due to her
change of jobs, Dr. Lazo diagnosed claimant's condition as
tendonitis of the left elbow and prescribed Naprosyn to treat it.
Eventually, claimant was referred to Danville Orthopedic
Clinic, where Dr. Ronald Hodges examined her on November 30, 2000.
Noting that claimant's pain in her left arm began when she
switched to folding pillowcases by hand, Dr. Hodges opined that
claimant's ongoing condition was "a repetitive strength sprain
injury." "When she starts this repetitive motion of hand
folding," Dr. Hodges reported, "she gets enough muscle edema in
her forearm to cause a radial nerve compression." He gave her
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Vioxx to take when she folded pillowcases by hand and recommended
that her work station be ergonomically modified to prevent further
problems.
Claimant sought compensation for her medical expenses related
to the injury to her left arm. Relying on claimant's "credibl[e]"
and "unrebutted" testimony and the fact that claimant's testimony
was "consistent with the medical record," the deputy commissioner
ruled that claimant suffered a compensable industrial injury to
her left arm on June 1, 2000, and awarded her the medical expenses
directly related to that injury and the resulting tendonitis.
On review, although one commissioner believed the evidence
failed to prove claimant's injury arose out of her employment, the
majority of the commission affirmed the deputy commissioner's
finding and award. Based on claimant's unrebutted testimony
"concerning the sudden onset of her symptoms" and Dr. Lazo's
report corroborating that testimony, the majority concluded that
the deputy commissioner correctly found that claimant proved an
injury by accident arising out of and in the course of her
employment.
This appeal by employer followed.
II. ANALYSIS
To recover benefits under the Workers' Compensation Act, the
employee must prove "by a preponderance of the evidence that [she]
suffered an injury by accident 'arising out of and in the course
of [her] employment.'" Falls Church Const. Corp. v. Valle, 21 Va.
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App. 351, 359-60, 464 S.E.2d 517, 522 (1995) (quoting Code
§ 65.2-101). Employer argues, on appeal, that claimant is not
entitled to medical benefits because she failed to prove her
injury arose out of her employment. We agree.
"Factual findings by the commission that are supported by
credible evidence are conclusive and binding upon this Court on
appeal." Southern Iron Works, Inc. v. Wallace, 16 Va. App. 131,
134, 428 S.E.2d 32, 34 (1993). However, "[b]ecause the finding of
whether an injury 'arose out' of the employment is a mixed
question of law and fact, we must determine whether the facts
presented are sufficient as a matter of law to justify the
[c]ommission's finding." Hercules, Inc. v. Stump, 2 Va. App. 77,
78, 341 S.E.2d 394, 395 (1986).
"The phrase 'arising out of' pertains to the origin or cause
of an injury." Combs v. Virginia Elec. & Power Co., 259 Va. 503,
508, 525 S.E.2d 278, 281 (2000). To determine whether an injury
arose out of employment, "we apply an 'actual risk test,' meaning
that the employment must expose the employee to the particular
danger causing the injury, notwithstanding the public's exposure
generally to similar risks." Id. at 510, 525 S.E.2d at 282.
Accordingly,
[a] claimant's injury arises out of the
employment if the manner in which the
employer requires the work to be performed is
causally related to the resulting injury.
See Bradshaw v. Aronovitch, 170 Va. 329, 335,
196 S.E. 684, 686 (1938). An injury does not
arise out of the employment when it "cannot
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fairly be traced to the employment as a
contributing proximate cause and . . . comes
from a hazard to which the workmen would have
been equally exposed apart from the
employment. The causative danger must be
peculiar to the work and not common to the
neighborhood." Id. (emphasis added)
(citation omitted).
Vint v. Alleghany Regional Hosp., 32 Va. App. 60, 63-64, 526
S.E.2d 295, 297 (2000).
Here, claimant presented no evidence that a condition
peculiar to her employment caused her injury. In describing how
she sustained the injury, claimant simply testified that she first
felt the pain in her left arm when, while folding a pillowcase by
hand, she "flipped the bottom [of the pillowcase] up to the top."
Claimant did not testify, and the deputy commissioner, having
observed claimant's hand-folding demonstration, did not find, that
claimant had to make any significant exertion or awkwardly bend,
twist, or otherwise move or contort her body or left arm to fold
the pillowcase. Likewise, claimant did not testify to any defect
or deformity in the particular pillowcase she was folding when
injured that made it any more difficult to fold than any other
pillowcase.
Indeed, claimant made no mention of any possible causal
connection between the injury and the manner in which she was
required to perform her job. Although she testified that she was
six feet one and one-half inches tall and that the table upon
which she folded the pillowcase was thirty-six inches high, she
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neither asserted any connection between such a discrepancy in
heights and her injury nor presented any evidence to suggest that
such a connection existed. Additionally, no medical evidence
established that the manner in which the employer required
claimant to perform her job was causally related to the resulting
injury to her left arm. 2
Furthermore, folding pillowcases is a common household chore.
Thus, as the dissenting commissioner noted, "[t]he hazards
associated with folding [a single] pillowcase are hazards to which
the claimant would have been equally exposed apart from her
employment."
Consequently, 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.
2
Dr. Hodges did opine generally that claimant's "repetitive
strength sprain injury" was "probably related to the fact that her
job station [was] not set up ergonomically for her," but, as the
commission noted, "Dr. Hodges's opinion did not indicate that he
was [even] aware of the sudden onset [of claimant's symptoms], as
he did not begin treating the claimant until six months after her
symptoms began." We conclude, therefore, that Dr. Hodges's
opinion was in reference to claimant's ongoing condition rather
than to her initial injury, which is the subject of this analysis.
Thus, that opinion is an insufficient basis to find that the
manner in which employer required claimant to perform her job was
causally related to her injury.
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We hold, therefore, that claimant failed to sustain her
burden of proving that her injury arose out of her employment.
Hence, the evidence presented in this case was insufficient as a
matter of law to justify the commission's award of compensation
benefits. Accordingly, we reverse the commission's award. 3
Reversed.
3
Employer also argues on appeal that claimant did not
suffer a compensable injury by accident and that the commission
failed to give proper consideration to claimant's medical
records. Because we reverse on the ground that claimant's injury
did not arise out of her employment, we do not address employer's
additional arguments.
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Benton, J., dissenting.
"An [injury by] 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." R & T Investments Ltd. v. Johns, 228 Va. 249, 252,
321 S.E.2d 287, 289 (1984).
"To constitute injury by accident it is not
necessary that there should be an
extraordinary occurrence in or about the
work engaged in." The evidence is
sufficient to establish an injury by
accident "even though the degree of exertion
is usual and ordinary and 'the workman had
some predisposing physical weakness.'"
Grove v. Allied Signal, Inc., 15 Va. App. 17, 22, 421 S.E.2d 32,
35 (1992) (quoting Kemp v. Tidewater Kiewit, 7 Va. App. 360,
363, 373 S.E.2d 725, 726 (1988)) (citations omitted).
The evidence proved Morrison is six feet one and one-half
inches tall. At the evidentiary hearing, Morrison demonstrated
the manner in which she performed her job when she first felt
pain. Although she testified that the table where she had to
stand to perform her work tasks was "about thirty-six inches
high," she stood and demonstrated how she performed those tasks
at her work station. The deputy commissioner found that her
work station was "about thirty-two inches from the floor." The
deputy commissioner expressly found her "to be a credible
witness" and found that the onset of her pain, as she had
attested, was the point in time when she first manually folded a
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pillowcase. Although the deputy commissioner rejected
Dr. Hodges' diagnosis of a repetitive injury, he accepted
Dr. Hodges' opinion that Morrison's work station was not
ergonomically designed for a person of her stature. The deputy
commissioner also found credible Dr. Ivan E. Lazo's attending
physician report, which diagnosed Morrison's tendonitis injury
to be a result of the folding incident. The commission affirmed
those findings and in particular, found the injury was of
"sudden onset" and caused by the work activity. The commission
also rejected the employer's contention that "the medical
evidence showed a cumulative-trauma injury."
In determining whether credible evidence supports these
findings, we are not at liberty to ignore the evidence in the
record that Morrison's work station was not ergonomically
configured for a person of her height. Because "[e]rgonomics is
the study of the relationship between people and the equipment
or systems they use," Norfolk Southern Ry v. Bowles, 261 Va. 21,
25, 539 S.E.2d 727, 729 (2001), the commission could rely upon
the doctor's conclusion that Morrison's injury probably flowed
from the inappropriate height of her work station. In First
Federal Sav. & Loan Ass'n v. Gryder, 9 Va. App. 60, 65, 383
S.E.2d 755, 759 (1989), we held that a "contortion of the body"
that is necessary to perform a job task is a hazard of the
workplace. Likewise, we held in Bassett-Walker Inc. v. Wyatt,
26 Va. App. 87, 93-94, 493 S.E.2d 384, 387-88 (1997) (en banc),
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that an employee who was required to squat or bend her knees at
a knitting machine was engaged in a risk peculiar to the
employment. We also noted that "[t]he mere fact that an unusual
movement required by one's employment is occasionally done
outside the workplace does not necessarily make a resulting
workplace injury non-compensable." Id. at 94, 493 S.E.2d at 88.
Similarly, Morrison's employment exposed her to the
peculiar risk of folding pillowcases at a work table that was
not ergonomically suitable for her height. Dr. Hodges' opinion
supports the conclusion that an improper ergonomic job station
caused an injury. In addition to folding pillowcases, which may
have been an everyday chore, Morrison's job required that she do
so rapidly and on a table only thirty-two inches from the floor.
"That the activity was usual, and did not require exertion, and
that the injury was not 'foreseen or expected' are irrelevant."
Grove, 15 Va. App. at 22, 421 S.E.2d at 35. The "'causative
danger . . . had its origin in a risk connected with the
employment, and . . . flowed from that source as a rational
consequence.'" Johns, 228 Va. at 253, 321 S.E.2d at 289
(quoting Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684,
686 (1938)). Thus, I would hold that credible evidence proved
that the manner in which the employer required Morrison to
perform her job created a hazard of the workplace that caused
the injury.
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I would also hold that the commission properly credited
Morrison's testimony and the report of Dr. Lazo in concluding
that Morrison experienced a sudden injury that had its genesis
in the initial folding incident. In Dollar General Store v.
Cridlin, 22 Va. App. 171, 177, 468 S.E.2d 152, 155 (1996), we
held that "the commission was free to credit claimant's
testimony . . . as a basis for its finding of causation."
Morrison testified that she had participated in sports and that
she had never had any injuries prior to changing to this job,
which required her to manually fold pillowcases at this table.
Morrison explained that on the first day of hand-folding she
immediately informed her supervisor of the pain. Although she
initially thought the pain would subside once she became
accustomed to the new job, it did not. Accepting her testimony,
the deputy commissioner noted that Morrison's supervisor was
present at the hearing and did not testify or refute Morrison's
testimony about the reporting of the onset of pain.
In addition, Dr. Hodges' report indicated that Morrison's
work station probably caused her injury and recommended a
modification of Morrison's work station. Rejecting the view
that Morrison suffered a cumulative trauma injury, the
commission found that Dr. Hodges "did not indicate he was aware
of the sudden onset" of Morrison's injury and that he did not
begin treating her until six months after the event. Finding
that the medical evidence essentially corroborated Morrison's
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testimony, the commission accepted, as did the deputy
commissioner, that her tendonitis injury was caused by her job
station, which was ergonomically inappropriate for her.
Moreover, Dr. Lazo opined that the incident reported by Morrison
caused her injury. As in Ogden Aviation Services v. Saghy, 32
Va. App. 89, 102-03, 526 S.E.2d 756, 762 (2000), "the evidence
in the instant case proved that [Morrison's injury] was not an
injury of gradual growth or the result of cumulative trauma
. . . [but, rather,] occurred while performing a single act." I
believe credible evidence supports the commission's holding that
Morrison's ergonomically inappropriate work station caused her
injury.
For these reasons, I would hold that the commission's
decision is supported by credible evidence establishing that
Morrison's injury occurred when she first hand-folded the
pillowcase, that she was working at a station not suitable for a
person of her height, and that her injury resulted from
performing a task required by her employment. Therefore, I
dissent.
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