Southside Virginia Training Ctr./CW v. Jones ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
SOUTHSIDE VIRGINIA TRAINING CENTER/
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 2898-98-2 JUDGE DONALD W. LEMONS
JANUARY 11, 2000
KIMBERLY RENEE JONES
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Mark L. Earley, Attorney General; Gregory E.
Lucyk, Senior Assistant Attorney General;
Edward M. Macon, Assistant Attorney General,
on briefs), for appellant. Appellant
submitting on briefs.
(Zenobia J. Peoples, on brief), for appellee.
Southside Virginia Training Center ("SVTC") appeals from an
award by the Worker's Compensation Commission granting
Kimberly R. Jones benefits for temporary partial disability and
temporary total disability. SVTC contends: (1) the commission
erroneously found that Jones' back injury was caused by a
work-related accident on May 29, 1996; and (2) the commission
failed to determine when SVTC received notice of the claimed
accident and whether SVTC is liable for medical expenses
incurred before June 13, 1996.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Jones was employed by SVTC as a human services care worker.
She testified before Deputy Commissioner Herring that on
May 29, 1996, while attempting to lift a patient from the
toilet, she experienced a sharp pain in her back. Jones
testified that she could barely move the next morning, but went
to work anyway. She stayed at work that day, after calling her
doctor for an appointment. She was given June 11, 1996 as the
first available appointment date. Jones' supervisor, Virginia
Vaughn, testified that Jones never complained of any back injury
or problems to her prior to June 13. Jones claims she reported
the incident on the morning of May 30 to a supervisor, Ms.
Beckett.
Before she saw her doctor on June 11, Jones was seen on
June 4 and June 7 at the Southside Regional Medical Center
Emergency Department. During her June 4 visit, Jones complained
of "off/on" lower back pain, non-radiating, worse in the last
two days with "NKDA." 1 When discharged, she reported no acute
distress.
During the June 7 visit, Jones complained of muscle aches
on both sides of her back. Jones was diagnosed with
musculo-skeletal low back pain and it was noted that she had an
1
There is some confusion as to what "NKDA" means. In
appellant's opening brief and appellee's brief and in the
Commissioner's interim opinion, it is defined as "No Known Date
of Accident." However, appellant's reply brief suggests it may
mean "No Known Drug Allergy."
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appointment with Dr. Thigpen on June 10, 1996. SVTC claims and
the deputy commissioner found that the doctor's notes of the
June 7 visit say, "does fair amt of lift @ work @ SVTC."
According to Jones and the full commission, the notes say, "does
[illegible] onset af[ter] lift @ work @ SVTC." Both parties and
both the full commission and the deputy commissioner agree that
the notes immediately preceding that statement say, "recalls no
specific event or injury".
On June 17, 1996, Dr. David Haines, an orthopedic surgeon,
examined Jones. He recites the patient's history that she
"[w]as lifting a client off a toilet when she felt sudden severe
pain in the back . . . ." A lumbosacral strain was diagnosed,
and continuing disability was noted. Jones began physical
therapy on June 20, 1996 with Dr. Haines. An Attending
Physician's Report of June 21, 1996 notes that the claimant's
back strain was caused by the history of injury while lifting a
client. This report was typed after Jones filled out a form
that same day describing the event. Jones was released to light
duty with a fifteen-pound lifting restriction on June 27, 1996,
and this continued until July 3, 1996.
On July 18, 1996, Jones gave a recorded statement to
Kristie McClaren. Jones claimed that the accident occurred on
June 3. Jones was asked what time of day the incident occurred
since that was not filled in on the Report of Accident. Jones
claimed it was after breakfast. Jones also claimed that she had
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been having problems with her back for months and that the pain
from her alleged accident was no different from what she had
experienced in the past.
Dr. Haines, in his Attending Physician's Report of July 19,
1996, noted the lumbosacral strain and right arm and cervical
complaints, all of which he indicated were caused by the lifting
incident on June 3, 1996. Jones' lifting restriction was
increased to twenty-five pounds on July 24, 1996. On August 16,
1996, this lifting limit was decreased to fifteen pounds.
At a hearing before Deputy Commission Herring on
November 22, 1996, Jones contended for the first time that her
accident occurred on May 29, and not on June 3. When asked
about the discrepancy between the injury date of May 29 and
June 3, Jones first testified that she told McClaren the
accident did not happen on June 3. She later testified that she
"assumed [McClaren] was going along with the date that was on
the incident form . . . ."
Also at the November 22 hearing, Jones testified that the
alleged accident occurred before breakfast, again in
contradiction to her July 18 statement to McClaren. Jones
testified further that she felt a similar tightness or pressure
in her back prior to the incident and that she was feeling the
strain each time she lifted. However, Jones testified that,
when she put the client back on the toilet seat, the pain went
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away and she thought this was the same pain or pressure she
experienced previously.
Based on medical histories of June 4 and 7 inconsistent
with her testimony and prior statements, and the history of back
pain dating several months before the date of this alleged
accident, the deputy commissioner found no compensable injury
and declined to issue an award, finding that the "bulk of the
credible evidence does not support the claim." The deputy
commissioner explained that injury resulting from cumulative
trauma caused by physical exertion inherent in the employee's
work is not "an injury by accident" compensable under the
Workers' Compensation Act.
Jones appealed the deputy commissioner's decision to the
full commission. In an "interim" decision, the commission found
that Jones' "credible testimony, recorded statement, and medical
histories [were] all consistent commencing with June 17, 1996,"
and that the evidence established an injury by accident
occurring on May 29, 1996 that resulted in total disability from
June 3 through June 30, 1996. The commission remanded the case
to the hearing docket for the taking of evidence regarding
Jones' efforts to find light work within her medical
restrictions after June 30, 1996. Upon remand, the deputy
commissioner concluded that Jones had reasonably marketed her
residual work capacity and entered an award.
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SVTC appealed the decision to the full commission, again
claiming that Jones did not sustain an injury by accident
arising out of and in the course of employment. In an opinion
dated December 8, 1998, the commission concluded that its
July 9, 1997 interim opinion was correct stating, "We therefore
AFFIRM that opinion, and adopt it as our own." From this
decision and award SVTC appeals.
To establish a prima facie claim for compensation for an
"injury by accident" arising out of and in the course of the
employment, the claimant must prove, by a preponderance of the
evidence, (1) an identifiable incident, (2) that occurred at
some reasonably definite time, (3) with an obvious, sudden
mechanical or structural change in the body, and (4) a causal
connection between the incident and the bodily change. See Code
§ 65.2-101; Chesterfield County v. Dunn, 9 Va. App. 475, 476,
389 S.E.2d 180, 181 (1990); Aistrop v. Blue Diamond Coal Co.,
Inc., 181 Va. 287, 293, 24 S.E.2d 546, 548 (1943). "[A]n injury
resulting from cumulative trauma caused by physical exertions
inherent in the employee's normal work is not an 'injury by
accident,' compensable under the Worker's Compensation Act."
Kraft Dairy Group, Inc. v. Bernardini, 229 Va. 253, 256, 329
S.E.2d 46, 48 (1985).
The commission erroneously states that the medical records
commence with June 7, 1996. The record clearly reveals that the
claimant visited the emergency room at Southside Regional
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Medical Center on June 4, 1996, and the report of the visit was
before the commission. In the notes, which appear to be a
partial history, there is no recitation of any incident,
accident or event which the patient claims serves as the basis
for her physical complaints. Additionally, there is a notation,
"NKDA" which SVTC and the deputy commissioner contend means "no
known date of accident." The majority opinion made no reference
to the notation, presumably because it was ignored entirely, a
fact confirmed by the majority's conclusion that the medical
records commence with June 7, 1996, obviously excluding the June
4, 1996 record.
Additionally, the majority opinion finds that the medical
records of June 7, 1996 are "ambiguous" and interprets the
doctor's notes as saying the claimant "recalls no specific event
or injury -- does [illegible] onset af[ter] lift @ work @
SVTC. . . ." The record is before us in the same form in which
it was received by the commission. A determination of what the
record says was not augmented by any other evidence. We find
nothing ambiguous about the words "recalls no specific event or
injury." Furthermore, we find that the note says "recalls no
specific event or injury -- does fair amt. of lift @ work @
SVTC."
As we have previously stated . . a patient's medical
history:
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[I]s admissible to explain the basis of the
doctor's opinion, or to impeach (as with a
prior inconsistent statement), or to
corroborate (as with a prior consistent
statement) the claimant's testimony. Also,
if a claimant has given a history that
negates the hearing proof of a compensable
injury, then such history would constitute
an admission by a party, admissible when
offered by an adverse party as an exception
to the hearsay rule.
McMurphy Coal Co. v. Miller, 20 Va. App. 57, 59, 455 S.E.2d 265,
266 (1995) (citation omitted).
As in McMurphy, the commission in this case "should have
considered the medical histories . . . because the histories
contradicted [Jones'] hearing testimony of how the accident
occurred." Id. at 59, 455 S.E.2d at 267. As in McMurphy, "[b]y
failing to consider these statements, the commission ignored
relevant evidence that supported the appellant['s] position and,
when coupled with other evidence, this action may have affected
the outcome of this case." Id. at 60, 455 S.E.2d 267 (emphasis
in original).
For this reason, we remand this case for review by the
commission so it may properly consider all relevant evidence
necessary to determine whether Jones proved by a preponderance
of evidence that she sustained a compensable injury. Upon
remand, if the commission finds upon review of all of the
evidence that the injury is compensable, the commission is
directed to make findings concerning notice to employer of the
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claimed accident and whether employer is responsible for all of
the claimed medical expenses.
Reversed and remanded.
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