Kraft Dairy Group, Inc. v. Bernardini, 840619

• Decision Date: 26 April 1985
• Docket Number: No. 840619,840619
• Citation: 229 Va. 253,329 S.E.2d 46
• Court: Virginia Supreme Court
• Parties: KRAFT DAIRY GROUP, INC., et al. v. Ann M. BERNARDINI. Record

Page 46

329 S.E.2d 46

229 Va. 253

KRAFT DAIRY GROUP, INC., et al. v. Ann M. BERNARDINI.

Record No. 840619.

Supreme Court of Virginia.

April 26, 1985.

Ralph L. Whitt, Jr., Richmond (Sands, Anderson, Marks & Miller, Richmond, on brief), for appellants.

L. Willis Robertson, Jr., Richmond, for appellee.

Present: All the Justices.

PER CURIAM.

This appeal requires us to reexamine the question whether an injury caused by cumulative trauma due to repetitive exertions amounts to an "injury by accident," as specified by Code § 65.1-7, thus becoming compensable under the Workers' Compensation Act.

Ann M. Bernardini, the claimant, had been employed for about three years by Kraft Dairy Group, Inc., in a plant manufacturing ice cream. In April 1983, she was assigned to new duties which involved removing from a production line cellophane-wrapped bundles of four half-gallon containers of ice cream and stacking them on a wooden pallet. When 360 half-gallons were stacked on a pallet, the claimant covered the stack with a towel or piece of cardboard. She then, with the help of her foreman, lifted an empty wooden pallet, weighing 75 to 100 pounds, placed it on top of the completed stack, and began a second stack above the first.

On June 6, 1983, after the claimant had filled "eighteen to twenty" pallets with over six thousand half-gallon containers of ice cream, while putting a towel on "top of the second layer," she experienced "a strong pull pain" in her left arm. She described the pain to her foreman, who was helping her put the towel in place, and told him that she "needed to see a doctor." She continued to work on June 6, and worked thereafter on June 7, 8, and 9. On June 10, she consulted a physician of her own choice, Dr. Michael J. Decker. He reported that the claimant:

was in good health until she developed shoulder pain while working Monday [June 6] at the Sealtest Ice Cream factory where she loads pallets with "tubes" of ice cream. Each tube contains 3 half-gallons of ice cream and the patient has to lift as many as 3 of these at a time in a very rapid manner.

Dr. Decker's diagnosis was "strain of the left shoulder and arm." He later reported, "I think we are dealing with a chronic musculoligamentous strain." He also opined, "[W]ithout a doubt, her heavy lifting at work caused the problems in her shoulder."

The claimant returned to work on June 20, 1983, but was unable to work the full day due to the pain in her arm and shoulder. On Dr. Decker's advice, she remained away from work thereafter because no light-duty work was available for her. In September, she was examined by Dr. Herman N. Nachman, an orthopedic surgeon. Dr. Nachman reported: "It is my impression, based upon history, physical examination and x ray studies that Miss Bernardini sustained a strain of the muscles of the left upper and forearm areas as a result of repetitive heavy lifting that she described occurring June 6, 1983." He recommended that she return to work, but restrict her lifting to 20 pound loads for at least two weeks. He said, "[S]he may then resume working without restriction of weight lifting, but I think that the physical capability of this young lady must be taken into account in her job assignment."

The employer defended the claim on the grounds that no industrial accident had been shown and that the claimant had given defective notice. Deputy Commissioner Yates, after a full hearing, held that the claimant had failed to carry her burden of proving the occurrence of an industrial accident. On review, the full commission, Chairman James dissenting, reversed the deputy commissioner's order, found that an industrial accident had been proved, and held that sufficient notice had been given to the employer. Because we agree with the views expressed in the deputy commissioner's opinion and in the dissenting opinion with respect to the absence of proof of an industrial accident, it is unnecessary to discuss the adequacy of notice.

The case is controlled by our recent decision in The Lane Company, Inc. v. Saunders, 229 Va. 196, 326 S.E.2d 702 (1985) where, reaffirming our prior holdings, we said, "in order to show that he has suffered an 'injury by accident' arising out of...