Directors Distributors Agri Supply v. Robert Pugh ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
DIRECTORS DISTRIBUTORS AGRI SUPPLY AND
AMERICAN ALTERNATIVE INSURANCE
CORPORATION
MEMORANDUM OPINION*
v. Record No. 0868-02-2 PER CURIAM
SEPTEMBER 17, 2002
ROBERT PUGH
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Steven H. Theisen; Theisen & Lingle, P.C.,
on brief), for appellants.
(Gerald G. Lutkenhaus, on brief), for
appellee.
Directors Distributors Agri Supply and its insurer
(hereinafter referred to as "employer") contend the Workers'
Compensation Commission erred in finding that Robert Pugh
(claimant) proved (1) he sustained an injury by accident arising
out of his employment on May 17, 2001; and (2) he was entitled
to an award of continuing disability benefits after August 21,
2001, as a result of his compensable injury by accident. Upon
reviewing the record and the parties' briefs, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the commission's decision. Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. Arising Out Of
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"Whether an injury arises out of the employment is a mixed
question of law and fact and is reviewable by the appellate
court." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482,
483, 382 S.E.2d 305, 305 (1989). "The phrase arising 'out of'
refers to the origin or cause of the injury." County of
Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74
(1989). To prevail, claimant must "show that the conditions of
the workplace or that some significant work related exertion
caused the injury." Plumb Rite, 8 Va. App. at 484, 382 S.E.2d
at 306.
In ruling that claimant met his burden of proof, the
commission adopted the deputy commissioner's findings as
follows:
"Pugh testified credibly that he had placed
his right hand on the top of the hopper, and
was reaching with his left hand to grip
underneath the hopper. He stated that at
the time of his injury, he was exerting some
force with his right hand, in order to
stabilize the top-heavy hopper. He
testified that this was not really a normal
lifting position, as he would not normally
be reaching out in this manner to get a grip
and to stabilize the hopper."
We find that at the time of the injury, he
was in an awkward position, as he had his
right hand on top of the four to five foot
- 2 -
tall hopper, while reaching underneath with
his left hand. Also, he was applying some
force with his right hand in order to
stabilize the top-heavy hopper. Thus, we
find that he was engaged in more than a
simple 3/4 squat at the time of the injury,
as his hands were separated by the four to
five foot height of the hopper, and he was
stabilizing the top of the hopper with his
right hand. . . . [W]e also find that the
claimant also had to reach inward with his
left hand and outward with his right hand.
We conclude that the claimant was required
to squat while reaching in an awkward manner
with both hands while applying stabilizing
force with his right hand. Thus, we find
that the claimant has persuasively
established that his injury resulted from an
actual risk of his employment.
As fact finder, the commission was entitled to resolve any
inconsistencies between claimant's hearing testimony and his
written statement in favor of claimant. It is well settled that
credibility determinations are within the fact finder's
exclusive purview. Goodyear Tire & Rubber Co. v. Pierce, 5 Va.
App. 374, 381, 363 S.E.2d 433, 437 (1987). Claimant's testimony
constitutes credible evidence to support the commission's
factual findings. Claimant stated that when he squatted down
with his right hand on top of the four to five foot hopper and
his left hand underneath it, while exerting some force with his
right hand to stabilize the top-heavy hopper, his knee gave way.
Dr. Jed S. Vanichkachorn, claimant's treating orthopedic
surgeon, indicated in his July 27, 2001 letter that claimant
sustained a "Type II discoid meniscus that had sustained a
recent, large longitudinal tear of the posterior horn region."
- 3 -
Claimant was not simply squatting and his knee gave way.
Rather, the commission could reasonably infer from the evidence
that claimant's employment-related need to lift the top-heavy
hopper in an awkward manner resulted in his knee injury. "Where
reasonable inferences may be drawn from the evidence in support
of the commission's factual findings, they will not be disturbed
by this Court on appeal." Hawks v. Henrico County Sch. Bd., 7
Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). Here, the
evidence supported an inference that the conditions of the
workplace either caused or contributed to the claimant's injury.
II. Disability
Factual findings made by the commission will be upheld on
appeal if supported by credible evidence. See James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989).
On July 9, 2001, Dr. Vanichkachorn performed arthroscopic
right knee surgery on claimant. On July 27, 2001,
Dr. Vanichkachorn indicated that claimant had "just started an
aggressive formal physical therapy program for increased range
of motion, pain relief, increased strength, and increased
function." Dr. Vanichkachorn opined that claimant should
"expect to be out of work a minimal [sic] of six weeks
post-operatively as knee function returns." The hearing took
place on August 13, 2001, less than six weeks after July 9,
2001. Thus, as of the hearing date, Dr. Vanichkachorn's medical
- 4 -
reports and opinions constituted credible medical evidence to
support the commission's finding that claimant was entitled to
an award of continuing temporary total disability benefits.
For these reasons, we affirm the commission's decision.
Affirmed.
- 5 -