Eastern Shore Cmty. Serv. Bd. v. Robinson
| Decision Date | 14 December 2010 |
| Docket Number | Record No. 1002-10-1 |
| Court | Virginia Court of Appeals |
| Parties | EASTERN SHORE COMMUNITY SERVICES BOARD AND VACOGSIA v. BRENDA ANNETTE ROBINSON |
Present: Judges Elder, Petty and Beales
Argued at Chesapeake, Virginia
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
John C. Johnson (Frith Anderson & Peake, on brief), for appellants.
No brief or argument for appellee.
Employer1 appeals the decision of the Workers' Compensation Commission awarding total temporary disability benefits to Brenda Annette Robinson. Employer argues the commission had insufficient evidence before it that Robinson sustained a compensable injury by accident under the Workers' Compensation Act because (1) the rule in Massie v. Firmstone prohibited the commission from relying upon certain evidence, and (2) Robinson did not immediately feel pain during the incident. We disagree and affirm.
Because the parties are fully conversant with the record in this case and this memorandum opinion carries no precedential value, we recite only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.
"On appeal from a decision of the Workers' Compensation Commission, the evidence and all reasonable inferences that may be drawn from that evidence are viewed in the light most favorable to the party prevailing below." Artis v. Ottenberg's Bakers, Inc., 45 Va. App. 72, 83, 608 S.E.2d 512, 517 (2005) (citing Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72, 577 S.E.2d 538, 539 (2003)). Whether Robinson "sustained an injury by accident is an issue of fact." Hoffman v. Carter, 50 Va. App. 199, 212, 648 S.E.2d 318, 325 (2007) (citing Grayson Cnty. Sch. Bd. v. Cornett, 39 Va. App. 279, 288, 572 S.E.2d 505, 510 (2002)). Accordingly, "we must defer to the commission's findings of fact if supported by credible evidence in the record." Diaz v. Wilderness Resort Ass'n, 56 Va. App. 104, 114, 691 S.E.2d 517, 522 (2010) (citing Rusty's Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255, 259 (1999) (en banc)).
A claimant suffers an "injury" under the Workers' Compensation Act when he suffers an "injury by accident" arising out of and in the course of his employment. Code § 65.2-101. To prove an injury by accident, "'a claimant must prove an identifiable incident that occurs at some reasonably definite time, which is the cause of an obvious sudden mechanical or structural change in the body.'" Kraft Dairy Group v. Bernardini, 229 Va. 253, 255, 329 S.E.2d 46, 47 (1985) (quoting The Lane Company, Inc. v. Saunders, 229 Va. 196, 199, 326 S.E.2d 702, 703 (1985)).2
There is no question that Robinson presented sufficient evidence of an identifiable incident that occurred at some reasonably definite time. Robinson's claim arose from an incident in which she assisted a handicapped patient in the course of her employment. Robinson testifiedthat she helped the patient move from a wheelchair to a toilet. Robinson attempted to lift the patient onto the toilet while simultaneously closing the wheelchair; however, the patient continued to hold on to a safety railing, which prevented Robinson from successfully lifting the patient onto the toilet. This caused Robinson to unexpectedly exert herself, and in her words she "twisted [her] body" and "hurt [her] back." A medical report3 filled out by one of Robinson's doctors also reflected that Robinson told the doctor that she "felt something pull" in her lower back.4 Thus, credible evidence supports the commission's finding that an identifiable incident occurred at some reasonably definite time.
However, employer claims that Robinson failed to present sufficient evidence to establish that the identifiable incident caused a sudden mechanical or structural change in her body. Citing Massie v. Firmstone, 134 Va. 450, 114 S.E. 652 (1922), employer argues that the commission could not rely on Robinson's statement contained in the medical report because that statement is inconsistent with her testimony before the commission. Without that indirect statement, employer contends that the commission was left merely with Robinson's direct testimony that she felt no pain until the morning following the incident. Therefore, employer surmises that Robinson and the commission could only speculate that the incident caused a sudden mechanical or structural change in Robinson's body.
According to employer, "Robinson testified repeatedly... that she noticed nothing abnormal whatsoever when she transferred her [patient] on the morning" of the accident. Hence, employer alleges that Robinson's direct testimony completely contradicts her statement in the medical report that "she felt something pull" in her back. Therefore, employer argues that Massie prohibited the commission from considering Robinson's statement in the medical report.
Under Massie, if "'a litigant unequivocally testifies to facts within his knowledge and upon which his case turns, he is bound thereby.'" Virginia Elec. & Power Co. (VEPCO) v. Mabin, 203 Va. 490, 498, 125 S.E.2d 145, 147 (1962) (quoting Crewe v. Nelson, 188 Va. 108, 113, 49 S.E.2d 326, 328 (1948)); see also Massie, 134 Va. at 462, 114 S.E. at 656. However, the rule is "subject to a qualification, so that a litigant with a meritorious claim or defense will not be cast out of court because of some single, isolated statement which, when taken out of context and pointed to in the cold, printed record on appeal, appears to be conclusive against him." VEPCO, 203 Va. at 493-94, 125 S.E.2d at 148; see also Travis & Ludwig v. Bulifant, 226 Va. 1, 5, 306 S.E.2d 865, 867 (1983). Accordingly, "[t]his qualification to the rule requires that a litigant's testimony be read as a whole." VEPCO, 203 Va. at 493-94, 125 S.E.2d at 148. Therefore, if that testimony "'in its entirety does not unequivocally show that his case is without merit or if reasonable men may differ as to its effect, the [factfinder] must be permitted to pass upon the testimony and the effect thereof, taken together with all the other evidence in the case.'" Olsten of Richmond v. Leftwich, 230 Va. 317, 320, 336 S.E.2d 893, 895 (1985) (quoting Saunders & Rickenhouse v. Bulluck, 208 Va. 551, 553, 159 S.E.2d 820, 823 (1968)).
Thus, Massie does not preclude the commission from considering evidence of an injury by accident other than the claimant's direct testimony simply because that testimony equivocates in some way. Id at 320-21, 336 S.E.2d at 895. In Leftwich, a claimant filed for workers'compensation benefits for an injury she sustained at her workplace when she lifted a large box. Id. at 318-20, 336 S.E.2d at 894-95. The claimant's supervisor testified that she witnessed the claimant injure herself while lifting the large box, and a doctor's report also opined that the claimant had injured herself while undertaking heavy lifting at work. Id. at 319, 336 S.E.2d at 894. However, when the claimant was asked whether she had lifted the large box—a fact that the Virginia Supreme Court assumed was dispositive to her claim—the claimant replied, "I don't know whether I picked [the large box] up." Id. at 320, 336 S.E.2d at 895. Invoking Massie, her employer argued that these words bound her, and thus it argued "that the commission erred in considering [the supervisor's] testimony and the medical evidence." Id. The Virginia Supreme Court rejected the employer's argument, holding that Massie did not prohibit the commission from considering the evidence that supported a finding of injury by accident, even though the claimant's testimony alone failed to precisely establish such an injury. Id. at 320-21, 336 S.E.2d at 895.
We must similarly reject employer's argument here. It is true that Robinson made a recorded statement where she described the incident and concluded by saying, "I guess doing that twisted my body and stuff—I hurt my back." Robinson also agreed, in response to questions from employer's counsel, that she had responded "no" on a chiropractic form that asked whether she had experienced "a sudden injury" and "yes" when it asked whether her injury was "without obvious cause." Employer would have us unfairly read these statements to mean that Robinson experienced nothing out of the ordinary on the day of the incident. However, simply saying, "I guess doing that twisted my body," does not necessarily mean that Robinson was speculating— employer reads far too much into Robinson's statement. Employer similarly reads too much into Robinson's answers on the chiropractic form. As Robinson reasonably explained, she put those answers on the form "because [she] was just really trying to get help" for her intense back pain.
Thus, like the claimant in Leftwich, Robinson's arguably equivocal statements do not defeat her claim, and further, the commission was free to interpret her isolated testimony in light of her testimony as a whole.
Just like the employer in Leftwich, here "employer misconceives the scope of the rMassiel rule as we have refined it." Id at 320, 336 S.E.2d at 895. "The Massie doctrine 'is intended to compel the exercise of good faith on the part of a litigant[,] not to penalize him for honest mistakes or infirmities of memory.'" Id at 321, 336 S.E.2d at 895 (quoting Burruss v. Suddith, 187 Va. 473, 482, 47 S.E.2d 546, 550 (1948)). Nor would that rule have us penalize Robinson for her use of informal or inelegant language. See id. Therefore, we hold that Massie does not apply to the facts of this case, and thus the commission did not err when it declined to apply it.5
Employer also argues that because Robinson did not feel immediate pain during the incident, she could not prove that the identifiable incident caused the sudden mechanical orstructural change in her body. However, a claimant need not experience pain during an...
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