Farnaz Farnia v. Prime Receivable, LLC ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
FARNAZ FARNIA
MEMORANDUM OPINION*
v. Record No. 0956-00-4 PER CURIAM
NOVEMBER 7, 2000
PRIME RECEIVABLES, LLC AND
FEDERAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Farnaz Farnia, pro se, on brief).
(William T. Kennard; Mell, Brownell & Baker,
on brief), for appellees.
Farnaz Farnia (claimant) contends that the Workers'
Compensation Commission erred in finding that she failed to
prove she sustained an injury by accident arising out of her
employment on July 31, 1998, or in the alternative, a
compensable occupational disease involving her left wrist. 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.
Injury by Accident
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). To
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
recover benefits, claimant must establish that she suffered an
"injury by accident arising out of and in the course of [her]
employment," Code § 65.2-101, and "that the conditions of the
workplace or 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 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). "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, 8 Va. App. at 483, 382 S.E.2d at
305. However, unless we conclude that claimant proved, as a
matter of law, that her employment caused her injury, the
commission's finding is binding and conclusive upon us. See
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
Claimant's job required that she sit at a computer terminal
and constantly answer a telephone. In performing her job, she
grabbed the telephone receiver with her left hand and typed on
the computer with her right hand.
On July 31, 1998, she grabbed her telephone receiver and
her wrist twisted backwards. She stated that her telephone had
been moved on her desk from its normal location. Claimant
admitted that she did not know what caused her wrist to twist
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backwards. She described nothing unusual about the telephone
handset or cord, and she confirmed that the telephone did not
get caught on anything. She did not attribute her injury to the
weight of the telephone nor could she determine what caused her
injury. After July 31, 1998, the constant use of her left hand
to answer the telephone made her symptoms worse.
Claimant admitted that in a conversation with employer's
insurance adjuster, claimant denied that her injury was caused
by a specific event, but rather contended that it was due to
several events.
On November 3, 1998, Dr. Carlos Gonzales examined claimant.
Dr. Gonzales recorded a history of claimant experiencing left
wrist pain while grabbing a telephone at work three months
earlier. Dr. Gonzales also noted that claimant developed
complaints of left neck, arm, and upper back pain after she
helped to lift items when employer moved its business.
Dr. Stephen Pournaras, a hand specialist, examined claimant
on November 11, 1998. Dr. Pournaras noted that claimant first
began having left hand symptoms in July 1998 while at work "when
she was answering a lot more telephone calls." Claimant told
Dr. Pournaras that her wrist was being hyperextended on a
regular basis and that she developed left neck pain after she
started holding her telephone with her neck between her left
shoulder and her chin. Dr. Pournaras diagnosed degenerative
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arthritis of the cervical spine and tendinitis of the left
wrist. Dr. Pournaras indicated that he was uncertain as to
whether claimant's problems were related to her work.
On November 18, 1998, Dr. Lisa White-Hudgens examined
claimant. Dr. White-Hudgens noted that claimant suffered from
constant moderate left-sided neck and upper back pain and
intermittent left-sided wrist and arm pain. Dr. White-Hudgens
recorded a history of wrist pain beginning in July 1998 after
claimant answered telephones at work for an extended period of
time. Claimant told Dr. White-Hudgens that she exacerbated her
symptoms when she helped move items at work in September,
October, and November, 1998. Dr. White-Hudgens diagnosed
cervical and thoracic myofascial pain syndrome secondary to
cumulative trauma disorder most likely secondary to occupational
duties of answering telephones.
On January 25, 1999, Dr. White-Hudgens provided a revised
medical report upon claimant's request. In that report, Dr.
White-Hudgens indicated that claimant had brought to her
attention that an inaccuracy existed in Dr. White-Hudgens's
initial evaluation report. Claimant told Dr. White-Hudgens that
"she actually twisted her wrist on July 31, 1998 while answering
high volume telephones and then developed wrist pain with
radiation into the arm." As a result, Dr. White-Hudgens changed
her diagnosis to "cervical and thoracic segmental dysfunction
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and related myofascial pain syndrome secondary to trauma
secondary to occupational injury."
In ruling that claimant failed to prove that she sustained
an injury by accident arising out of her employment on July 31,
1998, the commission found as follows:
Although [claimant] contends that her
telephone had been moved to a different
location on her desk, the evidence fails to
show that [claimant's] injury was caused by
significant exertion, or that her movements
were awkward or strenuous. The claimant
denied that the weight of the telephone
receiver caused her injury. In fact, the
claimant candidly acknowledged that she
could not determine what caused her wrist
injury. The simple act of answering the
telephone under these circumstances does not
constitute an actual risk of the employment
. . . .
The evidence established that claimant did not engage in
any significant exertion, that her simple act of picking up the
telephone receiver did not involve any significant exertion or
awkward position, and that no condition or hazard peculiar to
her workplace caused her injury, aside from the usual act of
answering the telephone. Therefore, we hold that claimant
failed to prove as a matter of law that her wrist injury arose
out of her employment.
Occupational Disease
Dr. White-Hudgens initially opined that claimant's
condition was caused by cumulative trauma, which is not
compensable under the Act as an occupational disease. See
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Stenrich Group v. Jemmott, 251 Va. 186, 199, 467 S.E.2d 795, 802
(1996). Dr. White-Hudgens later changed her opinion as a result
of a telephone conversation with claimant to reflect that
claimant's condition was caused by traumatic injury. However,
for the reasons stated above, claimant failed to prove that she
sustained an injury by accident arising out of her employment.
Furthermore, Dr. Pournaras, who diagnosed claimant as suffering
from degenerative arthritis and tendinitis, was not able to
causally relate these conditions to claimant's work. For an
occupational disease to be compensable under the Act, claimant
must prove "[a] direct causal connection between the conditions
under which work is performed and the occupational disease."
Code § 65.2-400(B)(1). Accordingly, the commission did not err
in finding that claimant failed to prove a compensable
occupational disease.
For these reasons, we affirm the commission's decision.
Affirmed.
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