Dickenson Co. School Bd. v. Patricia K. Mullins ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
DICKENSON COUNTY SCHOOL BOARD
AND
OLD REPUBLIC INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 0744-98-3 PER CURIAM
AUGUST 25, 1998
PATRICIA KAY MULLINS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(S.T. Mullins; Street, Street, Street,
Scott & Bowman, on brief), for appellants.
(Clarence E. Phillips, on brief), for
appellee.
Dickenson County School Board and its insurer (hereinafter
referred to as "employer") contend that the Workers' Compensation
Commission ("commission") erred in finding that Patricia Kay
Mullins ("claimant") proved that (1) at the time of her October
28, 1995 injury by accident, she was in the course of her
employment acting as an "employee" covered by the Workers'
Compensation Act; and (2) her right carpal tunnel syndrome was
causally related to the October 28, 1995 compensable injury by
1
accident. Upon reviewing the record and the briefs of the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Employer also contends that the commission erred in finding
that claimant proved that her ganglion cyst was causally related
to her compensable injury by accident. However, our review of
the commission's opinion reveals that the commission found that
the employer was not responsible for treatment or disability
related to the ganglion cyst. Because the commission ruled in
employer's favor on this issue, we will not address it on appeal.
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. Rule
5A:27.
I.
"A finding by the commission that an injury arose out of and
in the course of employment is a mixed finding of law and fact
and is properly reviewable on appeal." Dublin Garment Co. v.
Jones, 2 Va. App. 165, 167, 342 S.E.2d 638, 638 (1986).
In granting claimant's application, the commission made the
following factual findings:
The claimant's job was that of a school bus
driver. At the time of the accident, she
was furthering the interests of her
employer, in spite of the fact that she was
not required to take the band to North
Carolina. As a result of the budget
crunch, bus drivers were encouraged to
"volunteer" their time for extracurricular
activities. Such activities were an
important part of the school's overall
program. The school board continued to
exercise control. The claimant was
required to obtain permission from the
director of transportation to drive the
bus. Only school bus drivers employed by
the county could drive students on these
extracurricular trips. The claimant was
responsible for checking the bus systems to
make sure that they were working properly.
She was also responsible for picking up
trash on the bus. While the claimant was
not compensated for her time, her expenses
were paid and she was admitted to the
extracurricular events.
Based upon these factual findings, the commission concluded
that "the school system exercised sufficient control and that
there was a sufficient nexus between the employment and driving
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the bus for extracurricular activities, to place her in the
position of an employee, as opposed to a volunteer, at the time
of the accident." We agree.
"An injury 'occurs in the "course of employment" when it
takes place within the period of employment, at a place where the
employee may be reasonably expected to be, and while he is
fulfilling the duties of his employment or is doing something
which is reasonably incidental thereto.'" Lucas v. Lucas, 212
Va. 561, 563, 186 S.E.2d 63, 64 (1972) (quoting Conner v. Bragg,
203 Va. 204, 207-08, 123 S.E.2d 393, 396 (1962)). Moreover,
"compensation under the Act [is] not confined to injuries
occurring only during working hours." Id."If the voluntary act of an employee
which causes an injury is sufficiently
related to what the employee is required to
do in fulfilling his contract of service,
or is one in which someone in a like
capacity may or must do in the interest of
his employer's business, the fact that the
employee was not actually required to
perform the act will not impair his right
to recover compensation."
Id. at 564, 186 S.E.2d at 65 (citation omitted).
Although the evidence showed that claimant was not required
to drive employer's school bus to North Carolina to transport the
students on their field trip, her actions, which were controlled
and authorized by employer, were obviously for employer's benefit
and in its interest. When claimant sustained her injuries, she
was at a place she was reasonably expected to be while engaged in
an activity incidental to her employment. She was not on a
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mission of her own wholly unconnected to her employment. Under
these circumstances, claimant's injuries occurred in the course
of her employment while she was acting as an employee, not a
volunteer. See id. Accordingly, the commission did not err in
finding that claimant's evidence met her burden of proof.
II.
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). "The
actual determination of causation is a factual finding that will
not be disturbed on appeal if there is credible evidence to
support the finding." Ingersoll-Rand Co. v. Musick, 7 Va. App.
684, 688, 376 S.E.2d 814, 817 (1989). "Questions raised by
conflicting medical opinions must be decided by the commission."
Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d
231, 236 (1989).
In ruling that claimant proved that her right carpal tunnel
syndrome was causally related to her compensable October 28, 1995
injury by accident, the commission found as follows:
Both Dr. [Sudkhara K.R.] Udupa and Dr.
[William A.] McIlwain agree that the de
Quervain's disease is causally related to
the accident. While Dr. McIlwain did not
relate the carpal tunnel syndrome to the
accident, Dr. Udupa opined that there was a
"high probability" that the accident
aggravated that preexisting condition.
Neither physician related the cyst to the
accident. We are persuaded by the opinions
of Dr. Udupa and find that the de
Quervain's disease and carpal tunnel
syndrome are related to the accident. The
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employer takes the employee as he finds her
with all her weaknesses and infirmities,
and the employer is responsible for the
aggravation of a preexisting condition, in
this case, carpal tunnel syndrome.
"Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing."
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 214 (1991). In its role as fact finder, the
commission was entitled to weigh the medical evidence, to accept
Dr. Udupa's opinions, and to reject any contrary medical
opinions. Dr. Udupa's opinions constitute credible evidence to
support the commission's decision. "The fact that there is
contrary evidence in the record is of no consequence if there is
credible evidence to support the commission's finding." Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991).
For these reasons, we affirm the commission's decision.
Affirmed.
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