Family Dollar Stores Inc v. Presgraves
| Decision Date | 21 December 2010 |
| Docket Number | Record No. 0814-10-4 |
| Court | Court of Appeals of Virginia |
| Parties | FAMILY DOLLAR STORES, INC. AND INDEMNITY INSURANCE COMPANY OF NORTH AMERICA v. JACKIE JAMES PRESGRAVES |
Present: Judges Humphreys, McClanahan and Alston
Argued at Alexandria, Virginia
Angela F. Gibbs (Steven H. Theisen; Midkiff, Muncie & Ross, P.C., on brief), for appellants.
Robert B. Adams (Gammon & Grange, P.C., on brief), for appellee.
Family Dollar Stores, Inc. and Indemnity Insurance Company of North America ("employer") appeal a decision of the Virginia Workers' Compensation Commission ("commission") awarding temporary total disability benefits beginning April 23, 2008, and continuing to Jackie James Presgraves ("Presgraves") based on its finding that Presgraves sustained an injury by accident that arose out of and in the course of his employment, that the medical evidence supported the periods of disability, that the disability and medical treatment were related to the work accident, and that Presgraves sustained an injury to his lumbar spine and cervical spine in the work accident.1 For the following reasons, we affirm the commission's findings and award.
The employer contends that the commission erred in determining that 1) Presgraves sustained an injury by accident arising out of his employment; 2) the medical evidence supported the periods of disability alleged; 3) the alleged disability and medical treatment are/were related to the alleged accident; 4) Presgraves sustained an injury to his lumbar spine or low back as a result of the alleged accident; 5) Presgraves sustained an injury to his cervical spine or upper back as a result of the alleged accident; and 6) Presgraves is entitled to an award for benefits for the period commencing April 23, 2008, and continuing.
The employer contends that the commission erred in finding Presgraves sustained an injury by accident arising out of his employment. Specifically, the employer argues that the evidence only showed a cumulatively sustained trauma and the "discrete incident" cases are inapplicable.
"In order to recover benefits for an injury under the Workers' Compensation Act, the employee must have suffered an 'injury by accident arising out of and in the course of the employment.'" Goodyear Tire & Rubber Co. v. Harris, 35 Va. App. 162, 167, 543 S.E.2d 619, 621 (2001) (quoting Code § 65.2-101). "'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....'" R & R Constr. Corp. v. Hill, 25 Va. App. 376, 378-79, 488 S.E.2d 663, 664 (1997) (quoting Dublin Garment Co. v. Jones, 2 Va. App. 165, 167, 342 S.E.2d 638, 638 (1986)). "Factual findings of the commission will not be disturbed on appeal unless plainly wrong or without credible evidence to support them." Georgia Pac. Corp. v. Dancy, 17 Va. App. 128, 135, 435 S.E.2d 898, 902 (1993) (citing Armstrong Furniture v. Elder, 4 Va. App. 238, 247, 356 S.E.2d 614, 619 (1987)).
However, whether those facts prove the claimant suffered an "injury by accident" is a question of law. See Tomko v. Michael'sPlastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). The comission's finding on the legal question is not conclusive and binding upon us, but is properly subject to judicial review. See Hill, 25 Va. App. at 378-79, 488 S.E.2d at 664.
Goodyear Tire, 35 Va. App. at 168, 543 S.E.2d at 621.
An "injury by accident" is defined as an "identifiable incident or sudden precipitating event [that results] in an obvious sudden mechanical or structural change in the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989) (citation omitted); see Chesterfield Co. v. Dunn, 9 Va. App. 475, 476, 389 S.E.2d 180, 181 (1990). Thus, in order to establish an "injury by accident," the claimant must prove "'(1) an identifiable incident; (2) that occurs at some reasonably definite time; (3) an obvious sudden mechanical or structural change in the body; and (4) a causal connection between the incident and the bodily change.'" Ogden Aviation Services v. Saghy, 32 Va. App. 89, 94, 526 S.E.2d 756, 758 (2000) (quoting Dunn, 9 Va. App at 475, 389 S.E.2d at 181).
Richard E. Brown, Inc. v. Caporaletti, 12 Va. App. 242, 243-44, 402 S.E.2d 709, 710 (1991) (alteration in original). Hill, 25 Va. App. at 379, 488 S.E.2d at 664 (emphasis in original) (citations omitted).
Southern Express v. Green, 257 Va. 181, 187, 509 S.E.2d 836, 839 (1999) ). Thus, "'injuries resulting from repetitive trauma, continuing mental or physical stress, or other cumulative events, as well as injuries sustained at an unknown time, are not injuries by accident.'" Id at 186, 509 S.E.2d at 839 (quoting Morris, 238 Va. at 589, 385 S.E.2d at 865); see also Hoffman v. Carter, 50 Va. App. 199, 212-13, 648 S.E.2d 318, 326 (2007) ; Kraft Dairy Grp., Inc. v. Bernardini, 229 Va. 253, 256, 329 S.E.2d 46, 48 (1985) ().
Relying on Bernardini, the employer asserts that the injury in this case was a cumulatively sustained trauma and as such is not compensable. 229 Va. 253, 329 S.E.2d 46. In Bernardini, the Supreme Court of Virginia held that Ms. Bernardini ("Bernardini") was "injured by the cumulative trauma caused by the physical exertions inherent in her normal work." Id. at 256, 329 S.E.2d at 48. Bernardini worked in a plant that manufactured ice cream, removing cellophane-wrapped bundles of four half-gallon containers of ice cream from a production line and stacking them on a wooden pallet, and had performed the duties in question for several months without sustaining any injuries. Id. at 254, 256, 329 S.E.2d at 46-47, 48. When she wasinjured, she was doing the normal, repetitive work that her position required, and both her physicians concluded that the injury was caused by the repetitive heavy lifting that she did at work. Id. at 256, 329 S.E.2d at 48. In addition, Ms. Bernardini could not point to an accident, identifiable incident, or a sudden precipitating event on the day she reported her injury to which she could attribute the pain. Id.
The employer also relies on the Supreme Court's holding in Morris in which it addressed three separate claimants' injuries, noted that the commission and this Court were improperly extending the Act's coverage to include gradually incurred injuries, and reiterated the parameters of an "injury by accident." 238 Va. 578, 38 S.E.2d 858. In Morris, two of the workers sustained myocardial infarctions and the third sustained a ruptured cervical disc. The first worker who sustained myocardial infarctions had been lifting cartons of fiberglass weighing about fifty pounds from a loading dock onto the bed of his truck for approximately forty-five minutes, experienced pain after he drove away from the dock, and went to the doctor about an hour later. Id. at 581-82, 385 S.E.2d at 860. The second worker with myocardial infarctions was installing ceiling panels, which weighed approximately thirty to thirty-five pounds, for approximately two and a half hours when he started experiencing pain during a break and was taken to the hospital. Id. at 583, 385 S.E.2d at 861. The worker with the ruptured cervical disc was unloading seven steel doors from a truck over approximately an hour and a half, and began feeling pain about noon but did not go to a doctor until a few weeks later. Id. at 582, 385 S.E.2d at 860-61. The Supreme Court concluded that the three were not injuries by accident because the claimants did not carry their burden of proving that the cause of their injuries was '"an identifiable incident or sudden precipitating event and that it resulted in an obvious sudden mechanical or structural change in the body."" Id. at 589, 385 S.E.2d at 864-65 (quoting Lane Co. v. Saunders, 229 Va. 196, 199, 326 S.E.2d 702, 703-04 (1985)).
In this case, the evidence shows that the event, which precipitated Presgraves's injuries, was the cranking of a handle for ten to thirty minutes, which is not an activity that was normal, repetitive work required by his position.2 The evidence further shows that the cervical spine and lumbar spine injuries were not an "'injury of gradual growth... caused by the...
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