Ruddick Corporation, etc v. Julia A. Robertson ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Koontz
Argued at Salem, Virginia
RUDDICK CORPORATION, t/a HARRIS-TEETER
v. Record No. 1076-94-3 MEMORANDUM OPINION *
PER CURIAM
JULIA A. ROBERTSON JUNE 13, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Jim H. Guynn, Jr. (Parvin, Wilson, Barnett &
Guynn, on brief), for appellant.
No brief or argument for appellee.
Ruddick Corporation appeals a Workers' Compensation
Commission's award of temporary total compensation benefits to
the claimant, Julia A. Robertson. Ruddick contends that the
evidence is insufficient as a matter of law to prove that
Robertson's herniated disk arose out of or was caused by a work-
related accident. From our review of the record, no credible
evidence exists which proves that Robertson's herniated disk was
caused by a work-related accident. Accordingly, because we find
the evidence insufficient to support the commission's award, we
reverse the commission's holding and vacate the award.
Robertson worked as a produce clerk at a Harris-Teeter
grocery, which is owned by Ruddick Corporation. While cleaning
and preparing produce at a triple sink, Robertson attempted to
move a wet slippery floor mat with her foot. She "slipped" and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
"both . . . feet went out from under" her. She "caught" herself
by her "arms in between the . . . sinks so [she] didn't hit the
floor." "When [she] slipped [she] kind of screamed" but she did
not remember being hurt or feeling any pain or sensation in her
back at the time of the fall.
Approximately fifteen to twenty minutes later when Robertson
"bent forward" to pick up a strawberry from the floor, she felt
"immense" pain in her "lower back and . . . legs" and she
"couldn't support" herself. She "went . . . [to] the floor . . .
on one of her knees." She remembers "screaming" and that she
"just could not stand," "couldn't get off the floor."
After being assisted to her feet by a co-worker, and after
walking around for about five minutes, Robertson was able to
continue with her duties. Approximately ten minutes later, after
unfolding a table and while leaning over it to cut produce,
Robertson experienced another episode where she felt an "unusual"
sensation, "[i]t wasn't painful, . . . [it] felt [like] little
springs going off in [her] back." Because of the discomfort she
was experiencing, she got a stool in order to work at the table
in a sitting position. Robertson related "as soon as I sat down
it was just like a lightning bolt from the back of my neck all
the way down to my toe . . . I was in shock. . . . I have never
had a pain like that in my life." Robertson testified the pain
was so severe that she could not move, she screamed, and she
"lost it." She was not able to continue working. She was
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assisted to her car, drove home, and subsequently sought medical
care at an emergency care facility.
After an initial diagnosis of back strain, an MRI scan
disclosed that Robertson had a herniated disk. She was referred
to a neurosurgeon, Dr. Ralph O. Dunker, Jr. The history that she
gave Dr. Dunker was essentially identical to her testimony at the
deputy commissioner's hearing. After examining the claimant and
having viewed her MRI scan, Dr. Dunker diagnosed Robertson as
having a herniated disk. On her health insurance claim form,
Dr. Dunker checked the box marked "employment" as the cause of
Robertson's herniated disk.
In its opinion, the commission found that the slip and fall
at the sink and the three other occasions at work when Robertson
experienced back pain were four discrete incidents, each of which
contributed to cause Robertson's disk to herniate. The
commission found that by specifying "employment" as the cause of
Robertson's herniated disk, Dr. Dunker was referring to all four
incidents. The commission held, therefore, that because two of
the incidents--the slip and fall at the sink and bending over the
table to cut produce--arose out of or were caused by conditions
directly related to or peculiar to the workplace, two compensable
accidents contributed to cause the injury. Relying upon its
decision in Willard v. Phillip Hughes Contractors, 70 OIC 116
(1991), the commission held that under the "two causes" rule, it
is immaterial that Robertson was not able to identify which of
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the "four incidents" had caused her injury. Under the "two
causes" rule, if one or more work-related "accident" contributes
to cause an injury, the injury is compensable, despite the fact
that other nonwork-related factors may have contributed to cause
the injury. Thus, the commission found that Robertson's slip and
fall at the sink and her bending over a table to cut produce,
which table was shorter than the one to which she was accustomed,
were both work-related accidents that contributed to cause her
herniated disk. Thus, the commission found that Robertson's
injury arose out of her employment.
On appeal, we view the evidence in the light most favorable
to the prevailing party before the commission. R.G. Moore Bldg.
Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). Factual findings of the commission will not be disturbed
if based on credible evidence. Hercules v. Gunther, 13 Va. App.
357, 361, 412 S.E.2d 185, 187 (1991). Whether an injury was
caused by an accident at work or by some other cause, or was
gradually incurred, is a factual matter for the commission. See
Morris v. Morris, 238 Va. 578, 579, 385 S.E.2d 858, 865 (1985).
However, whether the evidence is sufficient to prove causation is
a question of law which is reviewable on appeal. Id.
To prove an injury by accident, a claimant must prove that
the cause of the injury was an identifiable incident or sudden
precipitating event related to the work that resulted in an
obvious sudden mechanical or structural change in the body. Lane
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Co. v. Sanders, 229 Va. 196, 199, 326 S.E.2d 702, 703 (1985).
The burden of proving such causation is on the claimant. See,
e.g., Marketing Profiles Inc. v. Hill, 15 Va. App. 567, 570, 425
S.E.2d 546, 547 (1993). To prove causation, it must be apparent
to the rational mind that a causal connection exists between the
injury received and the conditions under which the work was
performed. Id. at 571, 425 S.E.2d at 548.
First, we find nothing about Dr. Dunker's checking a box
indicating "employment" as the cause of Robertson's herniated
disk to mean that all of the four "incidents" contributed to
cause her disk to herniate. Dr. Dunker simply did not specify
that any "identifiable incident" or "sudden precipitating event"
caused Robertson's disk to herniate. Dr. Dunker's statement that
Robertson's "employment" caused her herniated disk was
nonspecific and proved nothing more than that strain or exertion
related to work over a period of time caused the disk to give
way.
Likewise, Robertson's account of what occurred did not
identify an incident related to her work that caused her injury.
The only "incident" described by Robertson which would have
constituted a work-related accident, had it been the cause of her
herniated disk, was her slip and fall at the sink. However,
Robertson testified that she felt no pain or discomfort or any
sensation at the time to indicate that she had experienced a
sudden mechanical or structural change in the disk when she fell.
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See Sanders, 229 Va. at 199, 326 S.E.2d at 703.
The other "incidents" when Robertson felt pain or a "spring
like" sensation in her back were not work-related accidents that
would have been compensable, even had they caused the disk to
herniate. In bending over to pick up a strawberry, Robertson was
not in an unusual position or exerting more than usual while
performing a job-related task. See Plumb Rite Plumbing Service
v. Barbour, 8 Va. App. 482, 382 S.E.2d 305 (1989). Bending over
to pick up an object from the floor required no unusual exertion,
but moreover, no evidence proved that bending over caused
Robertson's disk to herniate.
Assuming that the commission did not err in finding that
Robertson's leaning over the table to cut produce, which table
was slightly lower than the one to which Robertson was
accustomed, was an accident, see Reserve Life Insurance Co. v.
Hosey, 208 Va. 568, 159 S.E.2d 633 (1968), no evidence tends to
prove that this "event" caused Robertson's disk to herniate.
Robertson had previously experienced back pain when she bent
forward to pick up a strawberry. The evidence merely shows that
on one of the occasions that Robertson had pain, which apparently
was when the disk was or had herniated, was when she was leaning
forward over the table.
Finally, the commission found the last incident of Robertson
sitting on the stool not to be a work-related accident, even
though it may have contributed to cause Robertson's disk to
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herniate. We agree that sitting on the stool was not a work-
related accident, and we find no evidence tending to prove that
it caused Robertson's disk to herniate.
Accordingly, because the evidence fails to prove a specific
identifiable event at work caused Robertson's herniated disk, we
reverse the commission's decision and remand the claim for the
commission to vacate its award.
Reversed and remanded.
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Coleman, J., dissenting.
While I disagree with the commission's application of the
"two causes" rule in Robertson's situation, in my opinion, the
evidence supports a finding by the commission that Robertson's
slip and fall at the sink, when she caught herself on her elbows,
was an identifiable incident or sudden precipitating event that
contributed to cause her herniated disk. An injury that is
gradually incurred as a result of repetitive trauma or continuous
strain or exertion in the workplace, or sustained at an unknown
time, is not compensable as an injury by accident, Morris, 238
Va. at 586, 385 S.E.2d at 863. See also Aistrop v. Blue Diamond
Coal Co., 181 Va. 287, 24 S.E.2d 546 (1943); Tomko v. Michael's
Plastering, 210 Va. 697, 173 S.E.2d 833 (1970); Badische Corp. v.
Starks, 221 Va. 910, 275 S.E.2d 605 (1981); VEPCO v. Cogbill, 223
Va. 354, 288 S.E.2d 485 (1982); and The Lane Co. v. Saunders, 229
Va. 196, 326 S.E.2d 702 (1985). Moreover, it is not sufficient
merely to prove that an injury suddenly appeared; the injury must
be attributable to or caused by an identifiable incident at work.
Morris, 238 Va. at 586, 385 S.E.2d at 863.
Nevertheless, the fact that a lapse of time occurs between
the identifiable incident and when the injury suddenly appears
merely is a fact to consider in determining whether the evidence
proves causation; the mere fact that a period of time elapses
between the accident and when the symptoms of a resulting injury
manifest themselves does not establish that the injury gradually
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occurred or was caused by repetitive trauma. Causation is a fact
to be determined by the commission. Morris, 238 Va. at 579, 385
S.E.2d at 865. Of course, credible evidence must support that
factual finding. However, causation is established "when there
is apparent to the rational mind upon consideration of all the
circumstances, a causal connection between . . . [the
identifiable accident at work] and the resulting injury."
Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686
(1938). Proof of causation does not depend solely upon medical
evidence. Here, Robertson slipped and fell and had to catch
herself on her elbows. Within twenty minutes, she felt
excruciating pain in her back when she performed three separate
tasks--bending over to pick up a strawberry, leaning forward over
a table to cut produce, and sitting at a stool at work.
Dr. Dunker determined that Robertson suffered a herniated disk
and attributed her condition to her "employment." Even though
Dr. Dunker did not specify a particular incident in her
employment that caused the injury, he recited the same history
that Robertson gave of her injury in reaching his conclusion that
her "employment" caused the injury. Even though the commission
erroneously applied the "two causes" rule to the facts of this
case, in my view, it is apparent that when Robertson fell, she
injured her back and within a very brief period, she experienced
excruciating pain and other symptoms on three occasions, showing
that she had experienced a sudden injury as a result of the fall.
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I would affirm the commission's award.
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