Riverside Regional Medical Ctr v. Tyree ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Baker and Bray
Argued at Norfolk, Virginia
RIVERSIDE REGIONAL MEDICAL CENTER/
RIVERSIDE HEALTH SYSTEM AND
HEALTHCARE PROVIDERS GROUP
SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION * BY v.
Record No. 2439-97-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 24, 1998
DOROTHY JEAN TYREE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Linda M. Ziegler (Crews & Hancock, PLC, on
briefs), for appellants.
Paul H. Wilson (Wilson & Wilson, P.C., on
brief), for appellee.
Riverside Regional Medical Center/Riverside Health System
and Healthcare Providers Group Self-Insurance Association
("employer") appeal a decision of the Workers' Compensation
Commission awarding benefits to Dorothy Jean Tyree ("claimant").
Employer contends that the commission erred in: (1) finding
that claimant sustained an injury by accident arising out of her
employment on May 23, 1996; (2) refusing to allow Leo Cantor, an
expert witness, to testify regarding certain information related
to the condition of the doorway threshold where claimant tripped;
and (3) finding that claimant proved she sustained an injury to
her right knee caused by the May 23, 1996 tripping incident.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Finding no error, we affirm.
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 May 23, 1996 Incident
Claimant worked for employer as a phlebotomist. On May 23,
1996, during the course of her employment at approximately 3:15
p.m., claimant walked out of a doorway leading from the carpeted
office of Smith Kline onto the linoleum floor in the hallway. As
she did so, she caught her tennis shoe on a metal strip in the
doorway, which separated the carpeted area from the linoleum
floor, causing her to trip and twist her right knee. She did not
fall to the floor because she was able to catch herself using a
handle on the wall. She felt immediate pain in her knee and
could not put full pressure on the knee after she tripped. There
were no witnesses to the tripping incident. Claimant immediately
reported the injury to her supervisor.
Based upon photographs of the metal strip taken by claimant
on May 24, 1996, she testified that the strip looked the same the
next day, except that it looked as if it had been hammered down
in the area that had been "sticking up" the day before. Claimant
came to this assumption based upon the appearance of dent marks
on the metal strip near the area where she tripped.
Leo J. Cantor, a professional engineer, testified on behalf
of employer as an expert witness. On August 27, 1996, Cantor
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examined and photographed the metal strip. Cantor measured the
lip of the metal strip, finding 5/16 of an inch differential
between the linoleum floor in the hallway and the carpeted floor
in Smith Kline. Cantor stated that the height differential from
inside the Smith Kline lab into the hallway, claimant's path
during the tripping incident, was so negligible that he could not
measure it without a micrometer.
Marilyn Scott, a phlebotomist employed by Smith Kline on May
23, 1996, saw claimant come into the Smith Kline lab at
approximately 3:15 p.m., retrieve a paper from the fax machine,
and exit the lab. Scott stated that claimant did not trip in the
doorway as she left the lab. Scott saw claimant walking down the
hallway approximately fifteen to twenty minutes later. At that
time, claimant was walking normally and did not limp.
Felicia Wilkins, an employee of Smith Kline and Riverside,
testified that on May 23, 1996, she also saw claimant come into
the lab at 3:15 p.m. and leave the lab. Wilkins did not see
claimant trip in the doorway as she left. When Wilkins saw
claimant fifteen to twenty minutes later, claimant was walking
normally without a limp.
Medical Evidence
Dr. John Andrew Kona, an orthopedic surgeon, treated
claimant for knee problems before the May 23, 1996 incident.
Before May 23, 1996, claimant had undergone three surgical
reconstructions for a torn anterior cruciate ligament in her
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right knee. As of March 14, 1995, the date of Dr. Kona's last
examination of claimant's knees before her May 23, 1996 incident,
Dr. Kona concluded that claimant "had a little bit of laxity of
the ligament, but it was stable. She had a good exam for her
serviceable knee." Dr. Kona did not place claimant under any
physical restrictions at that time.
Dr. Kona examined claimant next on May 24, 1996, the day
after the tripping incident. Claimant gave Dr. Kona a history of
"slipp[ing] on the edge of a carpet that connects with the
linoleum in the work space and twist[ing] her right knee." At
that time, Dr. Kona found a small amount of laxity in the
anterior cruciate ligament, incomplete extension of the knee, and
some tenderness on the lateral side of the knee joint. A June 3,
1996 MRI did not indicate any new damage to claimant's knee.
On June 21, 1996, claimant underwent arthroscopy, which
revealed a partial tear of the anterior cruciate ligament graft,
scar tissue that had been generated inside the knee, and
degenerative joint disease. Dr. Kona removed some scar tissue
during the procedure. Dr. Kona opined that the injury inside
claimant's knee was consistent with a traumatic event, such as
that described by claimant. While Dr. Kona acknowledged that the
stretching of the January 1994 graft and the fibers coming loose
in claimant's knee could be consistent with "use over time," he
believed that claimant's injury was more consistent with a
traumatic event. On July 8, 1996, Dr. Kona reported that
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claimant's knee was much better, and he released her to work
without restrictions.
Dr. M.J. Bosse, an orthopedic surgeon, who reviewed
claimant's medical records at employer's request, opined on
October 19, 1996, that the June 1996 arthroscopy demonstrated
that claimant's knee had not been injured by the tripping
incident. Dr. Bosse further opined that claimant's current
symptoms were related to her pre-May 23, 1996 condition.
Dr. Kerry F. Nevins, an orthopedist who also reviewed
claimant's medical records for employer, opined on November 11,
1996 that the May 23, 1996 injury had little, if any, effect on
claimant's right knee condition. Dr. Nevins opined that "[a]t
best, it would be considered a minor aggravation of a
pre-existing condition."
Dr. Sheldon L. Cohn, an orthopedic surgeon, who examined
claimant on December 20, 1996 and reviewed the histories
contained in the other independent medical exam reports, opined
that
when [claimant] slipped at work, she
sustained a pivot shifting incident of her
knee, which aggravated her arthritic
condition, thereby causing her to undergo
arthroscopic debridement of her knee. I
believe that she recovered from that
exacerbation on or about July 8, 1996. I do
not believe any of her present impairment,
symptoms or any restrictions are due to the
injury at work on May 23, 1996. I do feel
that the arthroscopic intervention and
treatment for knee between May 23, 1996, and
July 8, 1996, were due to the injury she
sustained at work.
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I.
"A finding by the Commission that an injury [did or did not
arise] 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., Inc. v. Jones, 2 Va. App. 165, 167, 342 S.E.2d 638,
638 (1986).
"To prove the 'arising out of' element, [claimant] must show
that a condition of the workplace either caused or contributed to
her fall." Southside Virginia Training Ctr. v. Shell, 20 Va.
App. 199, 202, 455 S.E.2d 761, 763 (1995). "[O]ur inquiry must
be whether credible evidence supports a finding that a defect in
the [doorway threshold] caused [claimant] to . . . [trip and
twist her knee]." Id. at 203, 455 S.E.2d at 763.
Here, claimant's undisputed testimony provides credible
evidence to support the commission's factual findings that
claimant caught her tennis shoe on a metal strip that was
"sticking up" from the floor, causing her to trip and injure her
knee. Based upon these findings, the commission could reasonably
infer that the defect in the metal strip caused claimant's
accident, which resulted in her injuries. "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 a condition of the workplace either
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caused or contributed to claimant's injuries.
"In determining whether credible evidence exists, the
appellate court does not retry the facts, reweigh the
preponderance of the evidence, or make its own determination of
the credibility of the witnesses." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). As fact
finder, the commission was entitled to accept claimant's
testimony and to reject the testimony of Scott and Wilkins.
Moreover, the commission was entitled to give little probative
weight to Cantor's testimony. He did not examine the metal strip
until August 1996, almost three months after claimant's tripping
incident. No evidence showed that the metal strip was in the
same condition in August 1996 as it was at the time of claimant's
tripping incident. In fact, claimant testified, without
contradiction, that when she photographed the metal strip the day
after the accident, it appeared to have been hammered down in the
area where she tripped.
Because credible evidence supports the commission's finding
that a condition of claimant's workplace either caused or
contributed to her injury, we will not disturb the commission's
decision holding that claimant's injury arose out of her
employment.
II.
"The standard of review on appeal where the admissibility of
expert testimony is challenged is whether the trial court abused
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its discretion." Kern v. Commonwealth, 2 Va. App. 84, 86, 341
S.E.2d 397, 398 (1986).
The pertinent issue in this case was whether the condition
of the doorway threshold on May 23, 1996, at the time of the
tripping incident, created an employment-related hazard which
caused claimant's injuries. Cantor's excluded testimony about
whether the threshold complied with applicable codes when he
examined it in August 1996, three months after the accident, was
irrelevant to this issue, especially in light of claimant's
testimony that the metal strip was not in the same condition the
day after her accident as it had been at the time of her injury.
See Runyon v. Geldner, 237 Va. 460, 463-64, 377 S.E.2d 456,
458-59 (1989) (trial court should refuse to admit expert
testimony absent proof of similarity of conditions existing at
time of expert's tests and at time relevant to facts in issue).
In addition, Cantor's excluded testimony that the metal
strip posed a risk that was common to the general public and did
not pose a risk arising out of claimant's employment expressed
opinions as to the "ultimate issues" to be decided by the
commission, and, therefore, was inadmissible. See Davis v.
Commonwealth, 12 Va. App. 728, 731, 406 S.E.2d 922, 923 (1991).
See generally Code § 8.01-401.1 (opinion testimony of experts).
Accordingly, the commission did not abuse its discretion in
excluding Cantor's testimony.
III.
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"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 finding that claimant sustained her burden of proving
that the tripping incident caused an injury to her right knee,
the commission accepted the opinion of the treating physician,
Dr. Kona. Dr. Kona conceded that claimant's knee problems could
have arisen from degenerative changes. However, he believed that
claimant's injuries were more consistent with a traumatic event,
such as the May 23, 1996 incident she described. Dr. Cohn agreed
with Dr. Kona's opinions. The opinions and medical records of
Drs. Kona and Cohn, coupled with the undisputed evidence that
claimant had not sought medical treatment for any right knee
problems between March 1995 and the date of the accident, provide
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, 12 Va. App. at 894, 407 S.E.2d at
35.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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