Docstoc

VIRGINIA

Document Sample
VIRGINIA Powered By Docstoc
					VIRGINIA:                                                                      02/06/2006
IN THE WORKERS' COMPENSATION COMMISSION

CYNTHIA S. PRICE, Claimant
                                                                    Opinion by DIAMOND
                                                                       Commissioner

v.            VWC File No. 219-32-10

VIRGINIA INTERNATIONAL TERMINALS, INC., Employer
CONTINENTAL CASUALTY COMPANY, Insurer


Carlton F. Bennett, Esquire
Bennett & Zydron, P.C.
P.O. Box 2577
Virginia Beach, Virginia 23450-2577
for the Claimant.
(Copy sent Priority Mail)

Richard E. Garriott, Jr., Esquire
Clarke, Dolph, Rapaport, Hardy & Hull, P.L.C.
P. O. Box 13109
Norfolk, Virginia 23506-3109
for the Defendants.
(Copy sent Priority Mail)


       REVIEW on the record before Commissioner Tarr, Commissioner Diamond, and Chief
Deputy Commissioner Szablewicz at Richmond, Virginia.

       This case is before the Commission at the request of the employer for Review of the

deputy commissioner's decision, which awarded medical benefits for an injury by accident. We

AFFIRM.

       The claimant has worked for the employer for sixteen years as a computer operator. In

her testimony she described the following version of events. On May 20, 2004, she arrived at

work at approximately 4:00 or 4:10 p.m. A new desk had been delivered to her office, and the

old desk was still there. Her computer was unplugged. She asked her supervisor, John Fusek, to

help her set up her computer and to get access to her old desk. The new desk was covering up
                                                                           VWC File No. 219-32-10

the computer wires. Mr. Fusek suggested that the claimant contact the IT department, and people

came to help her set up the computer. She then noticed that one wire was stuck beneath the new

desk, and she could not move her mouse. Her supervisor came and lifted the desk enough to pull

the wire out. However, the new desk was still blocking access to files she needed. So she asked

her supervisor to help move the old desk so that she could pull the drawers out. They tried to

push the desk, and she felt a twinge in her right side. However, they were unable to move the

desk. The supervisor told her he would get maintenance to move the desk the following day, and

he left. She did not mention the twinge in her back because she believed it was nothing. Five

minutes later she decided to try to get into the file drawers on the left side of her old desk, so she

squatted, steadying herself with her left hand and reaching up with her right hand.               She

instinctively pushed on the desk to move it enough to get inside the drawer to pull a file out, and

as she pushed on it she felt pain in the middle of her back and down her leg. She rested for a

while to let the pain subside. She next bent over to load files into the new lateral file cabinet that

had also been delivered, and after doing this for ten or fifteen minutes, her supervisor came by to

say he was leaving. Five or ten minutes later as she straightened up she felt a stabbing pain in

her back in the same spot, radiating down her leg. She reported this to Dave Seale, director. She

went to the emergency room after her shift ended at midnight.

        On cross-examination, the claimant stated that she did not discuss the earlier twinges in

her recorded statement, or to medical providers, but first mentioned those in her interrogatories.

        John Fusek testified via de bene esse deposition. Mr. Fusek confirmed that he and the

claimant tried unsuccessfully to move the desk to free the computer cables. Eventually he was

able to tip the desk to free the cables. He stated that the claimant did not complain to him of

pain.



                                                  2
                                                                            VWC File No. 219-32-10

       The medical records pertinent to the issue of injury by accident reflect that the claimant

was seen at Sentara Leigh Hospital emergency room, where the triage report reflected that the

claimant hurt her back moving a heavy desk. She was diagnosed with an acute lumbar strain.

Another triage note indicated “lifted something heavy at work.”

       Records from Mark A. Bewley, of the Atlantic Orthopaedic Specialists, dated June 14,

2004, stated that on May 21, 2004, the claimant was moving a desk at work with her supervisor,

and a few hours later her back pain became present and worsened.

       Kristen Wright, physical therapist, wrote that the claimant was trying to move a desk,

then after bending over to file and standing up she felt a shooting pain.

       In order to prove a compensable an injury by accident, the claimant must prove an

identifiable incident that occurs at some reasonably definite time that results in an obvious

sudden mechanical or structural change in the body. Chesterfield County v. Dunn, 9 Va. App.

475, 476, 389 S.E.2d 180, 181 (1990). An injury due to cumulative trauma, which did not stem

from a sudden identifiable incident or sudden event, is not compensable as an injury by accident.

Kraft Dairy Group v. Bernardini, 229 Va. 253, 329 S.E.2d 46 (1985); Morris v. Morris, 238 Va.

578, 385 S.E.2d 858 (1989). The claimant must also prove that a workplace condition or some

significant work-related exertion either caused or contributed to her injury. See PYA/Monarch

and Reliance Ins. Co. v. Harris, 22 Va. App. 215, 468 S.E.2d 688 (1996).

       The causation between a work accident and injury or disability is essentially a medical

determination that is usually resolved by reference to medical reports. Reserve Life Ins. Co. v.

Hosey, 208 Va. 568, 159 S.E.2d 633 (1968). However, the testimony of the claimant may also

be considered in determining causation particularly when the medical evidence is unclear. Dollar

General Store v. Cridlin, 22 Va. App. 171, 177, 468 S.E.2d 152, 154-55 (1996).



                                                 3
                                                                            VWC File No. 219-32-10

       The Act does not require that a claimant make contemporaneous complaints of pain or

seek immediate medical treatment.           An injured worker does not have to feel pain

contemporaneously with the accident. See Ratliff v. Rocco Farm Foods, 16 Va. App. 234, 429

S.E.2d 39 (1993); Westpoint Stevens-Drakes Branch/Westpoint Stevens, Inc. v. David, Record

No. 008-97-2 (Va. Ct. App., June 17, 1997) (unpublished); Dodd v. Medical Care Center, VWC

File No. 183-61-27 (1997).

       We agree with the deputy commissioner’s decision. We find that the claimant incurred a

compensable injury by accident when she pushed on an extremely heavy desk. At the time she

felt a twinge in her mid-back. She did not think it was significant at that time. However, shortly

afterwards, after bending at the waist for several minutes, she straightened up and felt a severe

pain in the same spot. We find it significant that she mentioned to health care providers that she

was lifting a heavy desk. This is the exertion that initiated the injury.

       The Opinion below is AFFIRMED.

       The attorney’s fee awarded in the July 11, 2005, Opinion is increased to a total fee of

$650.00, to be paid directly by the claimant to Carlton F. Bennett, Esquire, for legal services

rendered to the claimant in this matter.

       This case is ordered removed from the Review Docket.

                                              APPEAL

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

days from receipt of this Opinion.

c:     Cynthia S. Price
       3704 Meadowglen Road
       Virginia Beach, Virginia 23453




                                                  4
                                     VWC File No. 219-32-10

Virginia Intl. Terminals, Inc.
151 Harbor Dr.
Portsmouth, VA 23702

Continental Casualty Co.
P. O. Box 16010
Reading, PA 19612




                                 5

				
DOCUMENT INFO