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hamilton injury attorneys


									VIRGINIA:                                                                         03/09/2001

                           Affirmed by the Court of Appeals at
                   Record No. 0928-01-1 (February 12, 2002)(unpublished)

                                                                   Opinion by DIAMOND
v.            VWC File No. 200-47-71


John H. Klein, Esquire
415 Saint Paul‟s Boulevard, Suite 200
Norfolk, Virginia 23510
for the claimant.

Iris W. Redmond, Esquire
9030 Stony Point Parkway, Suite 160
Richmond, Virginia 23235
for the employer.

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

       The employer requests Review of the deputy commissioner‟s September 28, 2000,

Opinion. Because the record was thoroughly developed and the issues thoroughly briefed in this

case, we decline the employer‟s request to present oral argument on Review. Code § 65.2-

705(B); Barnes v. Wise Fashions, 16 Va. App. 108, 112, 428 S.E.2d 301, 303 (1993). The

claimant was not represented by counsel at the hearing in this matter, but has secured

representation for Review. The deputy commissioner found that the claimant suffered an injury

by accident to his back on March 31, 2000, and the employer appeals.

       The claimant testified that he worked for the employer as a pipe-layer for over ten years.

On March 31, 2000, he was working on a job site across from Princess Anne High School,
                                                                       VWC File No. 200-47-71

breaking into a “catch basin” with a two-pound hammer. The claimant testified that once the

hole was “big enough to where we could put the pipe in,” he went to pick up a piece of pipe and

“felt like a little jolt in my back and then just numbness and my legs went out and I fell to the

ground and some of the guys that was there helped pull me up and put me on a bank.” He stated

that he was working in a “bent” position in the hole, which was “about a two and a half foot

hole.” He stated that Roy Dixon, a co-worker, “pulled me out of the hole.”

       The claimant went for treatment the following week, and stated that he told his foreman

on the morning he went for treatment that he hurt his back. He admitted that he suffered a back

injury in 1995 from lifting bags of concrete. He stated that his back frequently hurt since then,

and that his most recent treatment before the accident was in February 1999.

       Carl Herman, a co-worker, testified that he recalled the claimant injuring himself in

March 2000. He testified as follows: “We was busting out a manhole with a sledge hammer and

he said, „My back hurts,‟ and that‟s about it. He got up out of the ditch.” Herman stated that he

saw the claimant telling his foreman about his injury. Allen Adkins, another co-worker, recalled

working the Princess Anne High School job, but did not recall the claimant injuring his back or

complaining of back pain.

       Francis Cohen, president of the employer, testified that the claimant informed him,

“before he stopped working” for the employer, that his “back was bothering him and he wanted

to know if I could help him with getting some workmen‟s comp on it.” Mark Burkett, the

claimant‟s foreman, testified that the claimant did not report any injury to him in March 2000.

He recalled the claimant informing him that he was going to the emergency room for back pain

“one Friday morning” before work, but he stated that the claimant did not “describe at that time
                                                                        VWC File No. 200-47-71

anything about how he had hurt his back.”

       The medical evidence was that the claimant presented to Patient First on May 17, 1995,

complaining of an “acute injury to his lower back while working construction on a jack hammer

that got stuck.” He complained of radiating pain into his right thigh. On May 31, 1995, Patient

First records indicated that the claimant was “symptomatically pain-free and has already gone

back to work.” On August 9, 1996, the claimant presented to Patient First complaining of back

pain caused by “lifting a lot of concrete and doing some shoveling.” On August 23, 1996, his

symptoms were improved and he was released to regular duty.

       On February 25, 1999, the claimant presented to Patient First with complaints of “several

years of lower back pain but over the past six months the pain has been getting worse with

radiation of pain and paresthesia, numbness to his lateral and posterior thighs down to his knee.”

On March 4, 1999, the claimant‟s symptoms continued, and it was noted that the paresthesia was

“especially [on] his right.”

       The claimant was next examined over one year later, on April 14, 2000. Dr. Colin

Hamilton, an orthopaedist, noted that the claimant presented with a “5+ year history of recurrent

low back pain with occasional radicular symptoms down both the right and left lower

extremities, in the past, more frequently in the right lower extremity.” Dr. Hamilton then noted

that “his current episodes occurred about two weeks ago. He recalls using a brick hammer while

at work and having recurrent back pain.” He noted radiating pain bilaterally into his buttocks

and down his left leg. He diagnosed him with a left-sided herniated disc.

       On April 26, 2000, Dr. Hamilton noted the following: “Considering that he sustained a

work injury in 1995 and has never had more than a couple of months elapse without significant
                                                                         VWC File No. 200-47-71

low back pain since then, it seems reasonable to relate his present pain syndrome, which includes

sciatica, to that injury.” On May 11, 2000, Dr. Hamilton noted continued pain, with the “chief

complaint” being left sciatica. On May 19, 2000, Dr. Hamilton noted that an MRI revealed a

herniated disc at L5-S1 on the left, and he recommended fusion surgery. On June 7, 2000, Dr.

Hamilton noted that the claimant had a “herniated L5 disc—related to his work injury 3/31/00.”

       The deputy commissioner found that the claimant established an injury by accident on

March 31, 2000. He noted that the claimant‟s testimony concerning being in a “bent” position

and moving for a piece of pipe was “credible.” He also noted that the claimant‟s testimony was

corroborated by Herman. We agree with the deputy commissioner.

       Although two witnesses could not recall an incident during which the claimant hurt his

back, the claimant testified concerning sudden pain occurring in the context of working in a

small hole, in a bent position, and when beginning to retrieve a piece of pipe. He stated that his

co-workers helped him out of the hole. We believe the deputy commissioner, who noted the

claimant‟s credible testimony, correctly found that he established an injury by accident.

       The employer argues that the deputy commissioner incorrectly found, albeit implicitly,

that the claimant provided adequate notice to the employer. The deputy commissioner observed

the testimony of the claimant, who stated that he informed his foreman of the injury, as well as

the testimony of Herman, who stated that he saw the claimant inform his foreman, and weighed it

against the testimony of Burkett, the foreman, who stated that the claimant did not inform him of

any injury. Burkett admitted, however, that the claimant told him of his hurt back before work

“one Friday morning” before work.

                                                                            VWC File No. 200-47-71

       Cohen, the president of the employer, clearly knew that the claimant alleged a workplace

injury, as he testified that the claimant alleged a back injury and sought workers‟ compensation.

Moreover, Cohen stated that the claimant made this allegation before he stopped working for the

employer, which would have been within one week of the injury. We believe the claimant

established that he provided proper notice of his injury to his employer.

       Finally, the employer argues that the claimant failed to show a causal connection between

his current symptoms and his pre-existing condition. The deputy commissioner believed that the

claimant‟s current condition was related to the March 31, 2000, injury, and was not simply a

continuation of his pre-existing condition. He relied specifically on the medical evidence of

current left-sided sciatica, as opposed to a pre-existing condition of right-sided sciatica.

Moreover, Dr. Hamilton‟s June 7, 2000, note clearly related the present symptoms to the March

31, 2000, injury. Although Dr. Hamilton opined on April 26, 2000, that it would be reasonable

to conclude that the claimant‟s symptoms were caused by the 1995 injury, he apparently changed

that opinion after an MRI indicated a left-sided herniated disc.            We believe the deputy

commissioner correctly found that the claimant‟s disability and symptoms were caused by the

March 31, 2000, accident.

       As for the employer‟s argument that the deputy commissioner incorrectly awarded

temporary total disability through September 5, 2000, the deputy commissioner believed the

claimant reasonably believed he was unable to work until that date, when he was given light-duty

restrictions. The deputy commissioner relied on Dr. Hamilton‟s recommendation of surgery,

which was scheduled for the end of May, as support for the reasonableness of the claimant‟s

                                                                         VWC File No. 200-47-71

       On April 26, 2000, Dr. Hamilton noted that the claimant “obviously cannot work.” On

May 19, 2000, Dr. Hamilton noted that he recommended surgery, and that because the surgery

was “cancelled apparently by work comp,” the claimant should “get a work comp hearing and

likely he will need a lawyer to represent him.” In September 2000, Dr. Hamilton provided light-

duty restrictions. We believe the deputy commissioner‟s award of temporary total benefits

between April and September was appropriate.

       For these reasons, the September 28, 2000, Opinion is AFFIRMED. Interest on the Award

is payable pursuant to Code § 65.2-707.

       Counsel for the claimant is awarded an attorney‟s fee of $100.00, to be paid directly to

counsel for the claimant from accrued compensation.

       This matter is removed from the Review docket.


       I respectfully dissent.

       The claimant testified that he had been hammering with a two-pound sledgehammer in a

bent position for two to three hours. He first felt a tingling and numbness in his back as he was

walking in a ditch to get a piece of pipe. The claimant testified, “As soon as I started to head for

the pipe, that‟s when my back went out.” He stated, “Before I could get to the pipe, my back

went out.” Critically, the claimant testified he was not picking up the pipe when he “felt like a

little jolt in [his] back,” and there is no support in the record for the Deputy Commissioner so

finding. .

       I agree that the claimant‟s testimony is credible. It does not, however, describe an injury

by accident arising out of the employment. The claimant was merely walking toward the pipe
                                                                         VWC File No. 200-47-71

when he first felt tingling and numbness that resulted in his back giving out. Dr. Hamilton related

the injury by history to “using a brick hammer at work.” The hammering activity took place over

a two- to three- hour period preceding the claimant‟s walk toward the pipe. If anything, the

claimant has proven an injury from cumulative trauma caused by repetitive use of the hammer.

He has failed to prove an injury by accident.


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

days of receipt of this Opinion.

cc:    Glenn Anthony Hinebaugh
       1833 Riddle Avenue
       Virginia Beach, Virginia 23454

       WCAMC Contractors Group Self-Ins.
       PMA Management Corp.
       P.O. Box 6300
       Glen Allen, Virginia 23058


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