Present: All the Justices
SOUTHERN EXPRESS, ET AL.
v. Record No. 980453 OPINION BY JUSTICE CYNTHIA D. KINSER
January 8, 1999
CLARA LOUISE GREEN
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we decide whether chilblains that the
claimant suffered as a result of being exposed to cold
temperature in a walk-in cooler during a four-hour period
constitute an “injury by accident” under the Virginia Workers’
Compensation Act (the Act). Because the claimant proved that
she sustained the injury at a particular time and place and
upon a particular occasion, that it was caused by an
identifiable incident, and that it resulted in a structural
change in her body, we will affirm the judgment of the Court
of Appeals that the injury is compensable under the Act.
I.
Clara Louise Green was an employee at a Southern Express
convenience store. When Green arrived at work on June 22,
1996, John Patrick Vaillant, the store manager, asked a co-
worker to take Green inside the store’s walk-in cooler. 1 He
instructed the co-worker to show Green what tasks needed to be
1
The cooler’s design included a series of glass doors on
the front, shelving units behind the glass doors, and a walk-
in room behind the doors and shelves, which was also cold.
completed in the cooler and how to perform those tasks. Green
had never before worked in the cooler. The training session
in the cooler lasted approximately 30 to 45 minutes.
Later, Vaillant assigned Green to work in the cooler
stocking “beer” and “cokes.” When Green went back inside the
cooler, she was wearing a short-sleeved shirt and an apron
since she had not anticipated that she would be working in the
cooler. When Green asked Vaillant for a pair of gloves, he
authorized Green to use a pair out of the store’s inventory.
However, Green chose not to do so.
Green testified that, in addition to the time spent in
the cooler during the training session, she worked in the
cooler stocking drinks from 2:00 o’clock a.m. until 6:00
o’clock a.m. without taking a single break. She further
stated that, at some point during this period of time, she
tried to leave the cooler but was unable to open the door.
She attempted to get someone’s attention by knocking on the
window of the cooler, but no one responded.
Vaillant’s testimony conflicted with Green’s on this last
point. He was present at the Southern Express store during
Green’s shift of work on the morning in question and recalled
Green coming out of the cooler to take at least one break and
possibly more. He further testified that the cooler door had
2
no locking device and that it could be opened from both inside
and outside at all times.
Green stated that, after finishing her work in the
cooler, she was “cold and shivering” with her hands being “all
balled up.” She testified that her face also had sores on it.
Vaillant, however, testified that Green did not mention any
injury to him when she left work at the end of her shift
around 6:00 a.m. Green did not return to work at the Southern
Express store after she left that morning. 2
The record reflects that Green received treatment from
several doctors for her injury. On the morning of June 23,
1996, Green saw Dr. Gary McGowan at Henrico Doctors’ Hospital
for “an evaluation of pain in her hands, left forearm and left
elbow” in connection with an injury sustained while “lift[ing]
beer cases in the cold freezer for about 3-4 hours.” Dr.
McGowan diagnosed a left hand/forearm strain and advised Green
to wear gloves if she were exposed to cold temperatures at
work again. Two days later, Dr. Lerla Joseph of the Charles
2
The record contains conflicting evidence regarding
Green’s period of employment at the Southern Express store.
Green claims that she began working there in late May 1996 and
worked until June 9, 1996. Vaillant, however, testified that
Green’s period of employment ran from June 17 through 22,
1996. In her claim for workers’ compensation benefits, Green
originally listed her date of injury as June 22, 1996, but
later changed it to June 9, 1996.
3
City Medical Group, Inc., examined Green and recommended that
Green limit her lifting, bending, or cold storage work.
On July 1, 1996, Dr. Marc Jay Pinsky treated Green. At
that time, Green complained of “pain, burning, and stiffness
in [her] hands and feet” as a result of having worked several
hours in a cooler without “proper protection or a break for
warm-up.” Dr. Pinsky diagnosed “chilbains [sic] [secondary]
to longterm exposure to cold temperature.” 3 He advised Green
to avoid further exposure to the cold.
Next, on July 9, 1996, Green saw Dr. E.M. Hudgins of the
Dermatology Associates of Virginia, P.C. In a letter to Dr.
Pinsky, Dr. Hudgins opined that Green “has had a mold cold
injury consistent with chilblains.”
Green filed a claim for workers’ compensation benefits on
July 10, 1996. A deputy commissioner of the Virginia Workers’
Compensation Commission (Commission) denied Green’s claim on
the basis that “there was no sudden precipitating event, no
accident which arose out of and in the course of employment.”
Instead, the deputy commissioner found that her injury
3
Chilblains are “[a] form of cold injury characterized
by localized erythema and sometimes blistering. The affected
area itches, may be painful, and may progress to crusted
ulcerations. The cause is thought to be prolonged
constriction of arterioles in reaction to exposure to cold and
dampness.” Taber’s Cyclopedic Medical Dictionary 367 (17th ed.
1993).
4
resulted from “continuous exposure over a period of time.”
Upon Green’s request for review, the Commission reversed the
deputy commissioner’s decision and awarded benefits to Green.
Southern Express then appealed the Commission’s decision to
the Court of Appeals of Virginia. A panel of the Court of
Appeals affirmed the award of benefits on the basis that “a
condition resulting from exposure to extreme temperatures may
still constitute an ‘injury by accident.’” Southern Express
v. Green, 26 Va. App. 439, 445, 495 S.E.2d 500, 503 (1998).
We awarded Southern Express this appeal.
II.
When Green filed her claim for workers’ compensation
benefits, she alleged an “injury by accident” under Code
§ 65.2-101. This section states that “‘[i]njury’ means only
injury by accident arising out of and in the course of the
employment . . . .” 4 The Act does not, however, specifically
define the term “injury by accident.” Consequently, the
phrase has been the subject of judicial interpretation. See
Virginia Elec. & Power Co. v. Cogbill, 223 Va. 354, 288 S.E.2d
485 (1982), and Badische Corp. v. Starks, 221 Va. 910, 275
4
In the definition of “injury,” Code § 65.2-101 also
includes “occupational disease as defined in Chapter 4
(§ 65.2-400 et seq.).” Green does not, however, contend that
her chilblains constitute an occupational disease under the
Act.
5
S.E.2d 605 (1981), for a survey of cases discussing the
“injury by accident” requirement.
“It is apparent from the language employed by the
drafters of the Act that it was originally intended to provide
coverage for the most frequently recurring kinds of industrial
accidents, e.g., injuries immediately resulting from hazards
of the workplace such as blows from falling objects . . . [or]
falls from ladders . . . .” Morris v. Morris, 238 Va. 578,
585, 385 S.E.2d 858, 862 (1989). The more difficult issue
through the years has been “whether an injury resulting from
repetitive trauma, continuing mental or physical stress, or
other cumulative events, amounts to an ‘injury by accident’
within the meaning of [the Act] . . . .” Id. at 581, 385
S.E.2d at 859-60.
In Morris, a case relied upon by Southern Express, the
Court addressed this issue and reiterated the parameters of an
“injury by accident.” We considered the claims of three
separate workers, two of whom had sustained myocardial
infarctions and a third worker who had a ruptured cervical
disc. One of the workers who had a myocardial infarction had
been lifting cartons of fiberglass, weighing approximately 50
pounds each, for about 45 minutes. The second employee with
the same type of injury had been installing ceiling panels
weighing 30 to 35 pounds each over a period of approximately
6
two and one-half hours. The worker with the ruptured disc
injury had been unloading steel doors for approximately an
hour and a half. His injury was not diagnosed until several
weeks later, but the two employees with myocardial infarctions
were each taken to hospitals for treatment on the day of the
injury.
We vacated all three awards of compensation on the basis
that the claimants had not carried the burden of establishing
an “injury by accident.” Although each respective injury
“made its appearance suddenly ‘at a particular time and upon a
particular occasion,’” we concluded that each claimant had
failed to prove “that the cause of his injury was an
identifiable incident or sudden precipitating event and that
it resulted in an obvious sudden mechanical or structural
change in the body.” Morris, 238 Va. at 589, 385 S.E.2d at
864-65 (quoting The Lane Co., Inc. v. Saunders, 229 Va. 196,
199, 326 S.E.2d 702, 703 (1985) (emphasis added)). We
specifically held “that injuries resulting from repetitive
trauma, continuing mental or physical stress, or other
cumulative events, as well as injuries sustained at an unknown
time, are not ‘injuries by accident.’” Morris, 238 Va. at
589, 385 S.E.2d at 865.
In our analysis of the term “injury by accident” in
Morris, we relied upon language from a law review article that
7
we had previously quoted with approval in Aistrop v. Blue
Diamond Coal Co., Inc., 181 Va. 287, 293, 24 S.E.2d 546, 548
(1943) (citations omitted):
‘The injury, to be regarded as “by accident,” must be
received *** at a particular time and in a particular
place and by a particular accident. And the accident
must be something the date of which can be fixed. It is
not enough that the injury shall make its appearance
suddenly at a particular time and upon a particular
occasion.’ In other words, the ‘incident,’ the act done
or condition encountered, ‘must be shown to have occurred
at some reasonably definite time’.
On the other hand, as the author says, ‘*** injury
of gradual growth, *** not the result of some particular
piece of work done or condition encountered on a definite
occasion, but caused by the cumulative effect of many
acts done or many exposures to conditions prevalent in
the work, no one of which can be identified as the cause
of the harm, is definitely excluded from compensation.’
(quoting Francis H. Bohlen, A Problem in the Drafting of
Workmen’s Compensation Acts, 25 Harv. L. Rev. 328, 342-43
(1912)).
Thus, Morris and Aistrop teach that, to establish an
“injury by accident,” a claimant must prove (1) that the
injury appeared suddenly at a particular time and place and
upon a particular occasion, (2) that it was caused by an
identifiable incident or sudden precipitating event, and (3)
that it resulted in an obvious mechanical or structural change
in the human body. Accord Cogbill, 223 Va. 354, 288 S.E.2d
485; Starks, 221 Va. 910, 275 S.E.2d 605. Measuring these
elements of proof against the facts as recited in Morris, it
8
is evident that those claimants failed to prove that an
identifiable incident or event at work caused their injuries.
The claimants asserted that the cause of their respective
injuries was the particular piece of work that they were
performing on the days when the injuries first manifested
themselves, but evidence of causation, especially medical
evidence, was noticeably absent.
The question of causation was also the critical issue in
Byrd v. Stonega Coke & Coal Co., 182 Va. 212, 28 S.E.2d 725
(1944), a case relied upon by the Court of Appeals. Contrary
to Southern Express’s assertion that the Court of Appeals used
the decision in Byrd to carve out an exception to the
principles enunciated in Morris for all exposure cases, we
find no such deviation from Morris. Nor do we perceive any
tension between those two decisions as asserted by Southern
Express.
In Byrd, the employee collapsed suddenly and died after
having pulled coke out of a hot oven for more than ten hours.
The employer conceded that the employee was exposed to heat of
a much higher degree than that to which he otherwise would
have been exposed, but denied that there was a causal
connection between the hazards of the job and the employee’s
death. The record contained medical evidence from five
doctors, which we summarized by stating that all the doctors
9
agreed that acute heart failure was the immediate cause of the
employee’s death and that exposure to abnormal heat may affect
the heart. However, we acknowledged that the employee had
only some of the usual symptoms of heat stroke and that two of
the doctors did not state whether the excessive heat
contributed to the employee’s death. We concluded that the
employee’s death “was the result of the conditions under which
[he] was required to perform the duties of his employment.”
Byrd, 182 Va. at 221, 28 S.E.2d at 729. We also stated that
“if . . . injury or death results from, or is hastened by,
conditions of employment exposing the employee to hazards to a
degree beyond that of the public at large, the injury or death
is construed to be accidental within the meaning of the
[Act].” Id. at 216, 28 S.E.2d at 727.
The Court in Byrd did not discuss whether injuries caused
by repetitive trauma, continuing mental or physical stress, or
other such cumulative occurrences satisfy the “injury by
accident” requirement. Such an inquiry was not the focus of
the parties or the Court for obvious reasons. The employee’s
death occurred at a particular time and place and resulted in
an obvious change in his body. Moreover, the fact that the
identifiable event, the exposure to extreme heat, was not
disputed is especially significant for the present case. The
only contested issue was whether the exposure to the heat
10
caused the employee’s collapse and death. Although the Court
in Byrd did not specifically identify the elements of proof
later enunciated in Morris, the evidence, nevertheless,
satisfied those elements. 5
Turning now to the facts of the present case and using
the elements of proof outlined in Morris, we find that Green
established an “injury by accident.” Green’s chilblains first
appeared during the time that she spent in the cooler, thus at
a particular time and place and upon a particular occasion,
and resulted in a structural change in her body. She
testified that her face had sores on it and her hands were
“all balled up” after she finished her work in the cooler. In
fact, she sought medical treatment on the morning of June 23,
1996. At least two of the doctors who treated Green diagnosed
chilblains resulting from Green’s exposure to cold
temperature. Southern Express does not contest that Green
suffered chilblains and that the cause of the chilblains was
Green’s exposure to cold temperature during her work in the
cooler.
The only remaining question, the one that Southern
Express does challenge, is whether exposure to cold
temperature in a cooler for approximately four hours during a
5
Notably, the Court in Byrd had the benefit of the
decision in Aistrop, which discussed the same principles as
11
shift of work constitutes an identifiable event or incident.
Citing Morris, Southern Express argues that such a four-hour
exposure to the cold is not an event “bounded by rigid
temporal precision.” 238 Va. at 589, 385 S.E.2d at 864.
Rather, Southern Express asserts that Green’s injury resulted
from repetitive trauma, continuing physical stress, or a
cumulative event. We do not agree.
The evidence in this case shows that Green’s chilblains
were not an “injury of gradual growth . . . caused by the
cumulative effect of many acts done or many exposures to
conditions prevalent in the work, no one of which can be
identified as the cause of the harm . . . .” Aistrop, 181 Va.
at 293, 24 S.E.2d at 548. (Emphasis added). Instead, the
chilblains were “the result of some particular piece of work
done or condition encountered on a definite occasion . . . .”
Id. In other words, Green’s chilblains resulted from a single
exposure to cold temperature on a definite occasion during the
performance of a specific piece of work, i.e., an
“identifiable incident.” Morris, 238 Va. at 589, 385 S.E.2d
at 865. It was not caused by repeated exposures over a period
of months or years.
For these reasons, we will affirm the judgment of the
Court of Appeals.
_____________________
those set forth in Morris.
12
Affirmed.
13