VIRGINIA by Levone


									VIRGINIA:                                                                04/09/2002


                                                                                Opinion by the
v.                   VWC File No. 200-33-90

GIANT FOOD, INC., Employer

James F. Green, Esquire
Suite 650
4900 Seminary Road
Alexandria, VA 22311
For the Claimant.

Samantha D. Vanterpool, Esquire
10486 Armstrong Street
Fairfax, VA 22030
for the Defendants.

     REVIEW on the record by Commissioner Dudley, Commissioner Tarr, and
Commissioner Diamond at Richmond, Virginia.

       This case is before the Commission at the claimant’s request for Review of the Deputy

Commissioner's October 22, 2001, Opinion finding the claimant failed to prove an injury by

accident arising out of and in the course of her employment. We AFFIRM.

       This case came before the Commission on the claimant’s claim filed on April 20, 2000,

alleging an injury by accident on May 17, 1998. Two additional dates of accident alleged on her

claim, June 6, 1999, and August 19, 1999, were not pursued. The claimant previously sustained

an accident in 1993 for which benefits were awarded. The carrier stipulated that the claimant’s
                                                                         VWC File No. 200-33-90

disability from May 17, 1998 through January 11, 1999, was related to that earlier accident and

that benefits have been paid.

       The claimant, age 60, testified that she has worked for this employer a total of fourteen

years. She works in the service deli, which entails working with gourmet food, doing dishes,

cleaning the floor, and doing what needs to be done. Her job requires her to stand, stoop, and lift

and carry things, including 50-pound bags of potatoes. In 1993, she injured her right knee when

she fell on her knees at work. The claimant testified that she has had problems since then

whenever she falls. She denied that her knees sometimes go out at work.

       The claimant testified that on May 17, 1998:

          I was in the dish room washing sheet pans, and the mats was all soapy from
          the water from the sheet pans. I turned around, and I slipped and bent my
          knees. I hit both of my knees, and I twisted myself, and I landed on my
          back side. I hurt my back and my right hip.

She reported this incident to “Yates” but “Mo” (Mo Ahmad), an assistant store manager, wrote it

up. When asked about the Employer’s First Report listing a date of accident in June, the

claimant stated that “Mo” wrote it up wrong. The record contains two First Reports, one dated

February 24, 1999 and referencing a date of injury of June 6, 1999, when the claimant allegedl y

slipped and fell in the service deli department, and one dated April 19, 1999, and referencing a

date of injury of June 6, 1998 when the claimant allegedly hurt her hips after she slipped and fell

in the dishwashing area.

       The claimant testified that she sought medical treatment on May 17, 1998 at the hospital.

The medical records indicate that the claimant was seen at Inova Mount Vernon Hospital on May

20, 1998, for pain from her right knee to her hip after “falling off footboard of bed while pulling

                                                                        VWC File No. 200-33-90

chain on fan.” The claimant was diagnosed with a right knee strain and advised to follow up

with Dr. Gluck. The claimant testified that she later asked the hospital to change the history

recorded in the reports but she was unsuccessful.

       On May 28, 1998, the claimant returned to Dr. Gabriel Gluck, who has treated the

claimant’s knee problems since June, 1993. Dr. Gluck reported that the claimant “fell again

when the right leg gave out and she ended up at the Mt. Vernon Hospital emergency room where

she was x-rayed and referred here.” The claimant testified that she told Dr. Gluck about the fall

on the wet floor but he does not always write things down. To address the claimant’s chronic

right knee problems, Dr. Gluck performed arthroscopic surgery on July 29, 1998.

       On June 19, 1998, the claimant gave a recorded statement to the insurance adjuster,

Misha Freimann. Although the claimant testified that she is hard of hearing, and that she does

not know if she understood Mr. Friemann’s questions, Mr. Freimann testified that during the

conversation the claimant never communicated to him any inability to understand.           In the

statement, the claimant talks at length about the aftermath of her previous injury, including

trouble going down stairs, problems with her leg giving out, difficulty getting out of bed, and

multiple falls at work and at home. The claimant stated that she had gone to Mount Vernon

Hospital after falling out of bed. Mr. Friemann testified that the claimant did not mention a fall

on a wet floor, and our review of the statement reveals no mention of such an accident occurring

on May 17, 1998, as described at the hearing. After taking the statement, Mr. Friemann handled

the claim as a recurrence of the 1993 accident.

                                                                         VWC File No. 200-33-90

       The remainder of the medical records from the physicians who treated the claimant

similarly contains no mention of a May 17, 1998 slip. and fall on a wet, soapy floor. In addition

to treating with Dr. Gluck, the claimant has also been seen by Dr. Stephanie A. Giorlando, D.O.,

a rehabilitation medicine specialist. In her consulting report dated April 24, 2000, Dr. Giorlando

recounted that she had seen the claimant intermittently for right lower extremity pain, noting that

the claimant had fallen on both knees at work in 1993, then developed swelling and received

injections for pain management. According to the claimant, Dr. Giorlando referred her to Dr.

Davidson who has held her out of work. The medical records reveal that in addition to knee

problems, the claimant suffers from a number of ailments including cardiac problems and


        On this evidence, the Deputy Commissioner found that the claimant failed to credibly

describe a work-related injury by accident on May 17, 1998. Upon our Review of the record, we

find no reason to disturb the Deputy Commissioner’s findings. The inconsistencies between the

claimant’s hearing testimony and the emergency room record, the recorded statement, and Dr.

Gluck’s May, 1998 office note support the Deputy Commissioner’s decision to discount the

claimant’s testimony. We conclude the claimant has failed to prove that she sustained an

accident on May 17, 1998 arising out of and in the course of her employment. The Opinion

below is AFFIRMED.

        This matter is hereby removed from the Review docket.

                                                                  VWC File No. 200-33-90


       This Opinion shall be final unless appealed to the Virginia Court of Appeals within

30 days of receipt.

cc:    Jannett M. Gibson
       HC 78 Box 19 Hedie Cooper Rd.
       Shanks, WV 26761

       Lumbermens Mutual Casualty Co.
       P.O. Box 5550
       Glen Allen, VA 23058


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