VIRGINIA by chenboying


									VIRGINIA:                                                                   07/27/2009

                                                                           Opinion by DIAMOND
v.                    VWC File No. 239-53-01


George L. Townsend, Esquire
for the Claimant.
(Copy sent Priority Mail)

Ralph L. Whitt, Jr. Esquire
for the Defendants.
(Copy sent Priority Mail)

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

       This case is before the Commission on the employer‟s request for Review of the Deputy

Commissioner‟s March 18, 2009, Opinion, finding that the claimant sustained an injury by

accident arising out of his employment. We AFFIRM.

       The claimant filed a claim for benefits on August 25, 2008, alleging that he injured his back

on March 16, 2008, when he “stepped off truck.” He sought temporary total disability benefits from

July 17, 2008, through November 9, 2008, compensation for permanent disability and payment of

medical costs.

       At the hearing, the parties stipulated that the claimant‟s pre-injury average weekly wage was

$1,093.42. The employer agreed that the claimant was disabled during the dates alleged. The

employer defended on the grounds that there was no injury by accident which arose out of and in

the course of employment and that any medical treatment before July 2, 2008, was unauthorized.
                                                                        VWC File No. 239-53-01

       The evidence is summarized here to the extent necessary to explain our conclusions

reached on Review.

       The claimant testified that he worked as a firefighter and medic for the employer. He is

licensed to perform advanced life support treatment. He recalled that around 1:00 a.m. on March

16, 2008, he was dispatched to treat an unconscious patient as advanced life support for the

rescue squad. He explained, “the road was kind of narrow so the judgment was for the driver, he

pulled off the side of the road. There was a curb there. I grabbed my stethoscope, grabbed my

little ALS book, put that in my pocket, and went to step off the truck. From that point, I

remember seeing that curb, I don‟t remember if I stepped on the curb or if I hyper-extended to

miss the curb. Once I actually put my weight down, I felt a sharp pain in my back, lower back,

that shot down through my left leg.” He testified that he was “in a little bit more of a rush than

what I‟m normally. They are saying unconscious and that could be a wide variety of different

things with inside the body, whether it‟s heart, something to do with the lungs or anything to that

effect, so I am kind of stepped up with the speed.” He was stepping off the truck backwards from

the right side of the truck from the area behind the passenger seat. The step to the ground was

approximately twenty-two inches. The curb measured about five by five or six by six inches, and

there was grass adjacent to the curb.

       The claimant was working with Lt. Edward Sparks and Firefighter Chuney at the time.

The claimant testified that he grabbed other gear and was hobbling. At that point, Lt. Sparks

asked if he was okay. He told him that he hurt his back when he stepped off the truck. Lt. Sparks

and Chuney took some equipment from him. They went in and assessed the patient. He and

Lt. Sparks decided to complete the paperwork for his injury the following morning.             The

claimant testified that he completed the paperwork the next morning and turned it in to the

                                                                        VWC File No. 239-53-01

secretary. He testified that on March 20, 2008, he and Lt. Sparks signed a typed report, titled

QuickFax, a form from the insurer. (Claimant‟s Exhibit No. 1). The report indicated, “stepped

off of unit onto the curb wrong and twisted his back.” The report noted that the claimant suffered

lower back pain. The report indicated that the accident occurred at 02:12 a.m. on March 16,

2008. That same day the claimant was offered a panel of physicians.

       The claimant testified that he went to a chiropractor on March 31, 2008, and paid for the

care out of his pocket. On the Patient Information form, he wrote that he was experiencing lower

lumbar pain. He did not answer the question, “When did symptoms begin (date)?” He indicated

that he had not had a similar condition in the past. His chiropractor recommended that he see a

specialist. The claimant wanted to see his primary care physician, Dr. Eneya Mulagha but he was

out of the country. The claimant saw Dr. Enright, his wife‟s doctor, on June 12, 2008. Her

records indicated that the claimant had symptoms for four months with an onset date of February

12, 2008, and that he had pain radiating down his left leg and down back of leg to heel for two

weeks. She referred him for an MRI. The claimant saw Dr. Mulagha on June 23, 2008. The

medical report indicated that the claimant had low back pain for two months and that he denied

direct trauma. The record also indicated “shooting pain, aggravated with movement, gradual

onset.” The MRI had been scheduled for the following day. It showed a disc herniation.

       The claimant testified that he kept Lt. Sparks informed of his care. He then went to Medic

One, which was his panel selection. He first treated with Medic One on July 2, 2008. He reported

an injury in March. Medic One referred him to Dr. Squillante. Records from Dr. Squillante,

dated July 8, 2008, indicated that the claimant injured his back while “stepping off a fire truck,

twisted and began to experience severe lumbar and left lower extremity pain.” He underwent

surgery with Dr. Squillante on August 6, 2008.

                                                                           VWC File No. 239-53-01

       On cross-examination, the claimant testified that he could not recall whether his back

twisted. The claimant gave a recorded statement on July 15, 2008, and was asked if he was in a

hurry getting off the back of the truck. He responded, “not really.” He testified that he believed

that he told the chiropractor about the work accident but he was not certain. In his deposition, the

claimant testified “I do not recall if I told him anything about it. I might have told him. I

probably did, but I can‟t remember a lot of the conversation.” The claimant confirmed that

following the accident he continued to work full duty. He explained that “gradual onset” in

Dr. Mulagha‟s records meant that the pain level gradually increased. He agreed that when he

learned that surgery was necessary he decided to pursue a workers‟ compensation claim.

       Lt. Sparks was present at the hearing but was not called to testify.

       The Deputy Commissioner determined:

       A 22-inch high step backwards exiting is abnormal, except in the claimant‟s work

       The Commission recognizes that the claimant here regularly makes this transition,
       that the evidence is not entirely consistent as to what occurred in the landing of his
       foot, and that he initially and for a number of months sought medical treatment
       without any mention reflected in the medical reports of a traumatic situation in
       exiting the fire truck; however, on balance, and with the strength of the evidence of
       the filing of the report four days after its occurrence and the subsequent report of
       Dr. Squillante, the Commission finds that the claimant has sustained an injury by
       accident with arose out of his employment.

       On Review, the defendants argue that the Deputy Commissioner erred in finding that the

claimant met his burden of proving a compensable injury by accident arising out of his employment

given the lack of contemporaneous documentation in the medical records and the claimant‟s

inability to recall critical details about his accident. The defendants argue that the claimant did not

testify that he twisted when he stepped off the truck and that the medical records and the QuickFax

                                                                        VWC File No. 239-53-01

cannot be used to surpass the claimant‟s testimony. The defendants also argue that the claimant

failed to show a risk of employment which led to his injury.

       “In determining whether an employee‟s injury arose out of the employment, we apply the

„actual risk‟ test, which requires that the employment subject the employee to the particular

danger that brought about his or her injury.” Nurses 4 You, Inc. v. Ferris, 49 Va. App. 332, 340,

641 S.E.2d 129, 132 (2007) (citations omitted). “Under this test, an employee‟s injury arises „out

of‟ the employment when there is apparent to the rational mind, upon consideration of all the

circumstances, a causal connection between the conditions under which the work is required to

be performed and the resulting injury.” Id. (citing Combs v. Virginia Elec. & Power Co., 259 Va.

503, 509, 525 S.E.2d 278, 282 (2000) (quoting In re Employers' Liab. Assur. Corp., 215 Mass.

497, 102 N.E. 697, 697 (Mass. 1913)).

       The Supreme Court in United Parcel Service v. Fetterman, 230 Va. 257, 258-59, 336

S.E.2d 892, 893 (1985) (per curiam), explained:

       Excluded is an injury which comes from a hazard to which the employee would
       have been equally exposed apart from the employment. The causative danger
       must be peculiar to the work, incidental to the character of the business, and not
       independent of the master-servant relationship. The event must appear to have had
       its origin in a risk connected with the employment, and to have flowed from that
       source as a rational consequence.

       Injuries resulting from awkward movements associated with the employee‟s work have

been found to arise out of the employment as contemplated by the Act. Davis v. Little Gen‟l

Store, Inc., VWC File No. 211-71-77 (October 14, 2003) (benefits awarded to employee injured

when bending to retrieve pans from lower shelf and arising and twisting to put pans onto table).

       The claimant credibly testified that once he put his weight down on the curb, he felt a

sharp pain in his lower back. The QuickFax confirms his testimony that he did not step off the

truck in normal fashion. He stepped off “wrong.” We, therefore, find that the claimant stepped

                                                                          VWC File No. 239-53-01

onto the curb wrong and injured his back. We find that stepping down from the fire truck backwards

is a risk of employment for a firefighter and medic. We find that the claimant proved that he injured

his back in this awkward movement on March 16, 2008.

       For the reasons stated above, the March 18, 2009, Opinion of the Deputy Commissioner


       This matter is hereby removed from the Review docket.

       An additional attorney‟s fee of $350.00 is awarded to George L. Townsend, Esquire, to

be added to the $1,000.00 already awarded for a total of $1,350.00 to be deducted from the

claimant‟s accrued compensation.

       Interest is payable on the Award pursuant to Virginia Code § 65.2-707.


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

30 days of receipt.

cc:   Manuel L. Ferdinand
      Fredericksburg City Fire
      Virginia Municipal Group Self Insurance Association
      V M L Insurance Programs


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