COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
GOODYEAR TIRE & RUBBER COMPANY AND
TRAVELERS INDEMNITY COMPANY OF ILLINOIS
OPINION BY
v. Record No. 1631-00-3 JUDGE ROSEMARIE ANNUNZIATA
MARCH 27, 2001
JERRY E. HARRIS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
James A. L. Daniel (Martha White Medley;
Daniel, Vaughn, Medley & Smitherman, P.C., on
brief), for appellants.
Stephen G. Bass (Carter, Craig, Bass, Blair &
Kushner, P.C., on brief), for appellee.
Appellant, Goodyear Tire & Rubber Co., appeals an award of
benefits under the Workers' Compensation Act, contending: (1)
the injury suffered by claimant, Jerry E. Harris, did not arise
by accident but, rather, arose from a condition brought on by
non-compensable, cumulative trauma; and (2) Harris failed to
give Goodyear proper notice of the accident as required by Code
§ 65.2-600. We disagree and affirm.
BACKGROUND
Under accepted principles, we review the evidence in the
light most favorable to Harris, the party prevailing below.
Great Eastern Resort Corp. v. Gordon, 31 Va. App. 608, 610, 525
S.E.2d 55, 56 (2000). Goodyear employed Harris as a fabric
calendar mill operator for twenty-five years. On February 4,
1999, Harris was attempting to pull fabric loose that had
wrapped around a roll on one of the mill machines. In order to
disengage the wrapped fabric, Harris had to crawl into a hole
under the machine and pull the "wrap up" apart while on his
knees. On the date in question, the procedure took "longer than
usual" -- about thirty to forty-five minutes. In the course of
unwrapping the fabric, Harris experienced pain in both knees,
directly beneath his kneecaps. After exiting the hole, he
immediately reported the pain to his supervisor, Frank Van
Valkenburg. Van Valkenburg advised him to walk around for a
while and that if the pain did not subside, he would send him to
the hospital. After Harris took a break and walked around, the
pain eased and he returned to work.
Harris testified that he had not experienced any pain in
his knees prior to the February 4 incident. 1 After the incident,
Harris's knees hurt each time he worked from the described
position under the machine, disengaging wrapped fabric. He
reported the continued pain to his supervisor and some of his
co-workers. On March 26, 1999, the pain in his knees increased,
and his knees began to swell. Two days later, he reported his
condition to his supervisor and went to the plant hospital.
1
Harris was involved in a motor vehicle accident on
September 20, 1991, after which he experienced "popping and
instability of" his left knee. An MRI taken of the knee shortly
after the accident showed no abnormalities.
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Harris was treated at Piedmont PrimeCare East on March 28,
1999, where he reported that he had experienced pain in both
knees since February 4, 1999, which had subsequently worsened.
The attending physician's report reflected substantially the
same history and a medical diagnosis, which related the pain to
the incident at work on February 4, 1999.
Dr. Paul Settle of Piedmont PrimeCare completed a similar
report on April 4, 1999 and indicated that Harris's injury
"ar[o]se out of [his] employment . . . at work on
2/4/99 . . . ." In a subsequent report dated July 26, 1999,
Dr. Settle again linked Harris's condition to his employment,
concluding that Harris suffered from "chondromalacia patella,
which was aggravated by his job, which required frequent working
on his knees."
Harris was referred to Dr. Thomas C. Connolly, an
orthopedic surgeon. In a report dated April 21, 1999,
Dr. Connolly noted that Harris "ha[d] been doing a lot of
kneeling on the floor and noted increased pain on 2-4-99 during
his job kneeling." Dr. Connolly noted Harris's symptoms were
consistent with bilateral patello-femoral syndrome and
recommended that Harris use kneepads while at work. On
May 12, 1999, Dr. Connolly completed an employer form where he
listed a diagnosis of patello-femoral syndrome and stated that
he could not determine whether the injury arose out of Harris's
employment.
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Dr. Connolly ordered an MRI, which he noted was basically
normal and showed no evidence of a meniscal tear. In a report
dated May 25, 1999, he stated, "of course Mr. Harris has no
traumatic hx of his knees, basically just standing on the floor
all day at Goodyear." Dr. Connolly concluded, "I doubt this is
work related, however, due to the nature of the presentation as
well as the MRI presentation."
Dr. George Aitken, another orthopedic surgeon, treated
Harris on June 7, 1999. Dr. Aitken noted that Harris had "hurt
himself back in January on the job reporting it and having to do
a lot of work on concrete floors and kneeling." X-rays ordered
by Dr. Aitken showed a medial meniscal tear as well as some
degenerative disease.
Dr. Aitken performed arthroscopic surgery on Harris's left
knee on June 29, 1999. During the surgery, he repaired a medial
meniscal tear and a medial femoral condylar flap tear.
In September 30, 1999, Dr. Aitken wrote:
Mr. Harris is aware he had arthritis in his
knees before the injury on 2/4/99. On that
date he had increased pain in his knees and
probably caused or exacerbated meniscal
tears in his knees that resulted in symptoms
of pain.
On September 28, 1999, Dr. K. Thomas Wagner reviewed
Harris's records at the request of Goodyear. Dr. Wagner
concluded that Harris had a progressively degenerative arthritic
process involving both knees, which was not work related
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"because there is no evidence of any distinct injury or trauma
which precipitated this." He wrote, "I think this is a gradual
wear and tear type phenomenon and would not consider it work
related."
Because of the injury to his knees, Harris sought
compensation for his medical expenses and for lost wages for the
periods of work he had missed. The deputy commissioner awarded
benefits to Harris and, on appeal, the full commission affirmed
the award. This appeal followed.
ANALYSIS
I.
Injury by Accident
In order to recover benefits for an injury under the
Workers' Compensation Act, the employee must have suffered an
"injury by accident arising out of and in the course of the
employment." Code § 65.2-101. Whether an employee has suffered
an "injury by accident" is a mixed question of law and fact.
R & R Constr. Corp. v. Hill, 25 Va. App. 376, 378-79, 488 S.E.2d
663, 664 (1997). Findings of fact by the Workers' Compensation
Commission will be upheld on appeal if supported by credible
evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512,
515, 382 S.E.2d 487, 488 (1989). However, whether those facts
prove the claimant suffered an "injury by accident" is a
question of law. See Tomko v. Michael's Plastering Co., 210 Va.
697, 699, 173 S.E.2d 833, 835 (1970). The commission's finding
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on the legal question is not conclusive and binding upon us, but
is properly subject to judicial review. See Hill, 25 Va. App.
at 378-79, 488 S.E.2d at 664.
[T]o 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 on the human
body.
Southern Express v. Green, 257 Va. 181, 187, 509 S.E.2d 836, 839
(1999); see also Combs v. Virginia Elec. & Power Co., 259 Va.
503, 508, 525 S.E.2d 278, 281 (2000).
Goodyear contends Harris did not prove an "injury by
accident." Goodyear focuses on the period of time Harris worked
when the injury occurred, and on the fact he was on his knees
for some forty-five minutes. Proceeding from those facts,
Goodyear contends the injury in question was gradually incurred,
see, e.g., Kraft Dairy Group, Inc. v. Bernardini, 229 Va. 253,
329 S.E.2d 46 (1985), and that the incident claimed to
precipitate the compensable injury was not sufficiently "bounded
with rigid temporal precision" to meet the definition of "injury
by accident." See, e.g., Morris v. Morris, 238 Va. 578, 589,
385 S.E.2d 858, 864 (1989).
Goodyear's contention is refuted by two Virginia Supreme
Court holdings, Green, 257 Va. 181, 509 S.E.2d 836, and Combs,
259 Va. 503, 525 S.E.2d 278. In both cases, the causative
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"incidents" were not instantaneous but, rather, continued over a
period of four hours and two hours, respectively.
In Green, the employee had worked for four hours stacking
drinks in a walk-in cooler at a convenience store. While
working in the cooler, the employee developed chilblains,
resulting from her exposure to the cold temperature in the
cooler. In finding that the employee had suffered an "injury by
accident," the Virginia Supreme Court stated:
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 . . . ." Instead, the chilblains were
"the result of some particular piece of work
done or condition encountered on a definite
occasion . . . ." 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."
It was not caused by repeated exposures over
a period of months or years.
Green, 257 Va. at 189, 509 S.E.2d at 841 (citations omitted).
In Combs, the employee had developed a severe headache
during an aerobics class held on company property. The employee
was taken to the employer's employee health services "quiet
room," where she was left unattended. Two hours after she had
been placed in the "quiet room," the employee was found covered
in vomit, in a coma-like state. The employee was taken to the
hospital where doctors concluded she had suffered a brain
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aneurysm. In finding that the employee had suffered a
compensable "injury by accident," the Virginia Supreme Court
stated:
Combs' injury is not the aneurysm itself.
Instead, her injury is the aggravation,
exacerbation and/or acceleration of the
aneurysm. That injury resulted from the
alleged negligent emergency medical care, or
lack thereof, that she received from
Virginia Power and its EHS employees after
she suffered a severe headache during the
aerobics class.
* * * * * * *
The particular time, place, and occasion of
her injury was at the EHS "quiet room" in
Virginia Power's Richmond office, during the
two to three hours that elapsed from when
she first developed the headache and was
taken to the "quiet room" until she was
transported to the hospital. The
identifiable or precipitating event was the
alleged negligent emergency medical
treatment that she received during this span
of time. Finally, Combs' paralysis and
cognitive brain damage represent the
mechanical or structural changes in her body
that resulted from her injury. Thus, all
the requirements of an "injury by accident"
are present in this case.
Combs, 259 Va. at 508-09, 525 S.E.2d at 281-82.
In this case, the commission found as established fact that
Harris sufficiently identified: (1) the particular time, place
and occasion of the injury; (2) the identifiable incident which
caused the injury; and (3) a mechanical or structural change in
his body. On February 4, 1999, while he was on his knees for
forty-five minutes pulling fabric loose, Harris experienced pain
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in both knees. As soon as he exited the hole, Harris reported
the incident and the pain to his supervisor. Harris also denied
experiencing any pain in his knees prior to the incident on
February 4. The commission concluded that Harris's claim was
not defeated by his inability to identify the specific piece of
fabric which, when pulled, caused the injury. See Hill, 25 Va.
App. at 379-80, 488 S.E.2d at 665 (where employee felt soreness
in his back while lifting numerous five-gallon buckets, "[t]he
fact that the claimant did not or could not identify precisely
which bucket or buckets he was lifting when the disc or discs
herniated does not constitute failure to prove that an immediate
or sudden event or events caused the discs to herniate"). It
further noted that the medical testimony in the case, including
that provided by Drs. Settle and Aitken, established that
Harris's knee injury was due to the February 4, 1999 incident,
the latter physician opining that the incident "probably caused
or exacerbated meniscal tears in his knees that resulted in
symptoms of pain." Although Harris may have had pre-existing
arthritis and a degenerative condition of his knees, the
condition was materially aggravated as a result of the injury he
sustained when he disengaged the wrap-up of fabric on February
4, 1999. On that date, he suffered a meniscal tear that caused
disabling pain in his knees for the first time. Such an injury
is compensable. Olsten of Richmond v. Leftwich, 230 Va. 317,
319-20, 336 S.E.2d 893, 895 (an injury by accident which
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materially aggravates or accelerates a pre-existing condition is
compensable); see also Ohio Valley Constr. Co. v. Jackson, 230
Va. 56, 58, 334 S.E.2d 554, 555 (1985).
While the employer's physician and one of Harris's treating
physicians provided opinions to the contrary, conflicting
medical evidence is not sufficient to warrant the reversal of a
commission decision. Georgia-Pacific Corp. v. Robinson, 32 Va.
App. 1, 5, 526 S.E.2d 267, 268 (2000). The commission gave
little weight to the opinions because they were based on
incomplete or inaccurate histories. Issues of weight and
credibility are uniquely within the province of the commission,
and we will not substitute our judgment for that of the trier of
fact. City of Portsmouth Sheriff's Dept. v. Clark, 30 Va. App.
545, 553, 518 S.E.2d 342, 346 (1999); Dollar General Store v.
Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996).
II.
Timely Notice of Accident
Code § 65.2-600(D) requires an employee to give written
notice of an accident to the employer within thirty days of the
occurrence of the accident. However, written notice is
unnecessary if the employer has actual notice through a foreman
or other superior officer. Newport News Shipbuilding & Dry Dock
Co. v. Barnes, 32 Va. App. 66, 70, 526 S.E.2d 298, 300 (2000);
Kane Plumbing, Inc. v. Small, 7 Va. App. 132, 138, 371 S.E.2d
828, 832 (1988). Additionally, compensation will not be barred
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for failure to give timely notice unless the employer can prove
it was prejudiced by such lack of notice. Code § 65.2-600(E).
In this case, although Harris did not seek medical treatment
until March 28, 1999, and did not file an accident report until
that date, his supervisor, Frank Van Valkenburg, admitted that
Harris immediately reported the incident and the injury to him
on February 4, 1999. Thus, Harris provided timely notice of his
injury. Additionally, Goodyear has made no allegation that it
was prejudiced by the absence of timely written notice.
For the reasons stated, we affirm the decision of the
commission.
Affirmed.
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