COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judges Benton, Coleman,
Moon, Willis, Elder, Bray, Annunziata and Overton
Argued at Richmond, Virginia
BASSETT-WALKER, INC.
OPINION BY
v. Record No. 1002-96-3 JUDGE LARRY G. ELDER
NOVEMBER 25, 1997
SHIRLEY JEAN WYATT
UPON REHEARING EN BANC
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Richard D. Lucas (Carter, Brown & Osborne,
P.C., on brief), for appellant.
Stephen G. Bass (Carter, Craig, Bass,
Blair & Kushner, P.C., on brief), for
appellee.
Bassett-Walker, Inc. (appellant) appeals a decision of the
Workers' Compensation Commission (commission) awarding benefits
to Shirley Jean Wyatt (claimant). It contends that the
commission erred when it concluded that claimant's injury arose
out of her employment. A panel of this Court agreed with
appellant and reversed the commission's decision. See
Bassett-Walker, Inc. v. Wyatt, No. 1002-96-3, slip op. at 3.
(Va. Ct. App. March 4, 1997). We granted claimant's petition for
a rehearing en banc and now affirm the commission's award.
*
When the case was argued Judge Moon presided. Judge
Fitzpatrick was elected Chief Judge effective November 19, 1997.
I.
FACTS
Claimant was a knitter whose work involved operating
knitting machines. Rolls of yarn were placed on creels attached
to the machines, and the machines functioned by knitting yarn fed
into them from the creels. Each machine held multiple creels of
yarn, some of which were "as high as you could reach from the
floor," while the lowest row of yarn was about "two inches off
the floor." The machines consumed numerous rolls of yarn during
the course of claimant's twelve hour shift. Each time a roll of
yarn was emptied, claimant was responsible for placing a new roll
on the empty creel. In order to reload the yarn on the
bottom-most creels of a machine, claimant was required to perform
a deep knee-bend to reach their location two inches above the
floor. At the lowest point of each knee-bend, claimant's weight
rested on her heels, her knees did not touch the floor, and her
"rear end [was] lower than [her] knees." The operation of the
knitting machines required claimant to perform these deep
knee-bends approximately 200 times each twelve hour shift.
On March 13, 1995, claimant was performing her duties when
the machine she was operating emptied a roll of yarn. Claimant
placed a new roll of yarn on the creel and "squatted down to tie
the bottom in." Claimant was not holding anything in her hand.
Before she had reached the deepest position of her knee-bend,
claimant heard a pop and felt a tearing sensation in her left
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knee. When she tried to stand up, she was unable to straighten
her left leg. Claimant's injury was diagnosed as a torn medial
meniscus, and she underwent arthroscopic surgery to correct the
injury.
Claimant filed a claim for benefits. Following a hearing, a
deputy commissioner denied her claim, concluding that claimant's
injury did not arise out of her employment. The deputy
commissioner found that "the conditions of claimant's employment
did not contribute to her injury" and that her injury occurred
during a "normal squatting motion."
Claimant appealed, and the commission reversed. The
commission concluded that claimant's injury was causally related
to her work reloading the bottom-most creels of the knitting
machine. It found that "claimant's knee injury followed as a
natural incident of the work and could be reasonably seen as
resulting from exposure occasioned by the nature of the
employment, which required her to squat approximately 200 times
per shift." It also found that the job-related hazard that
contributed to her injury was the "need to squat in order to
perform her work, coupled with the number of times that maneuver
was required per shift and the length of time which she had to
maintain the position."
II.
INJURY "ARISING OUT OF" EMPLOYMENT
Appellant concedes that claimant suffered an injury during
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the course of her employment. It contends, however, that the
commission erred when it concluded that claimant's injury arose
out of her employment. Appellant argues that claimant's risk of
injury while performing deep knee-bends at work was no greater
than the risk to which she was exposed outside of her job and
that her injury occurred while performing a "normal squat"
typical of those she would perform at home. Because the record
indicates that claimant was exposed to an increased risk of
tearing cartilage in her knees that was peculiar to her
employment and that this risk contributed to her injury, we
disagree with appellant's arguments.
In order to receive benefits under the Workers' Compensation
Act, a claimant must prove by a preponderance of the evidence
that he or she suffered an injury by accident that arose out of
and in the course of the employment. See County of Chesterfield
v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989) (holding
that "arising out of" and "in the course of" are separate and
distinct elements). An injury "arises out of" the employment if
a causal connection exists between the claimant's injury and "the
conditions under which the employer requires the work to be
performed" or a "significant work related exertion." Grove v.
Allied Signal, Inc., 15 Va. App. 17, 19, 421 S.E.2d 32, 34
(1992); Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 482,
484, 382 S.E.2d 305, 306 (1989) (interpreting Johnson).
"'Under this test, if the injury can be seen
to have followed as a natural incident of the
work and to have been contemplated by a
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reasonable person familiar with the whole
situation as a result of the exposure
occasioned by the nature of the employment,
then it arises "out of" the employment. But
it excludes an injury which cannot fairly be
traced to the employment as a contributing
proximate cause and which comes from a hazard
to which the workmen would have been equally
exposed apart from the employment. The
causative danger must be peculiar to the work
and not common to the neighborhood. It must
be incidental to the character of the
business and not independent of the relation
of master and servant. It need not have been
foreseen or expected, but after the event it
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.'" Bradshaw v. Aronovitch, 170
Va. 329, 335, 196 S.E. 684, 686 (1938),
quoting In re McNicol, 215 Mass. 497, 499,
102 N.E. 697, 697 (1913).
Baggett Transp. Co. of Birmingham, Alabama v. Dillon, 219 Va.
633, 638, 248 S.E.2d 819, 822 (1978). Whether an injury arises
out of the employment is a mixed question of law and fact and is
reviewable on appeal. Barbour, 8 Va. App. at 483, 382 S.E.2d at
305.
We hold that claimant's knee injury arose out of her
employment. The unique demands of operating the knitting machine
provided the "critical link" between claimant's employment and
her injury. In order to load new rolls of yarn in the lowest
creels of her knitting machine, claimant was required to perform
deep knee-bends during each twelve hour shift. The
circumstantial evidence indicated that this knee-bending or
"squatting" to reach a position close to the ground was a
condition of the work to be performed which exposed claimant to
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the risk of tearing cartilage in her knees every time she
performed the task. Although claimant testified that the motion
of her knee-bending at work resembled a knee-bend that she would
perform "to pick up something at home," bending one's knees until
a point two inches from the ground is within reaching distance is
both extreme and uncommon. Moreover, the record did not
establish that claimant performed deep knee-bends to reach
positions just inches from the floor in order to load yarn on
creels while she was away from her employment. The mere fact
that an unusual movement required by one's employment is
occasionally done outside the workplace does not necessarily make
a resulting workplace injury non-compensable. Thus, the
knee-bending demanded of claimant when operating the knitting
machines was a condition to which she was not equally exposed
apart from her employment. Cf. Grove, 15 Va. App. at 20-21, 421
S.E.2d at 34-35 (claimant's stooping and crouching incidental to
fixing pipes exposed him to a risk of back injury peculiar to his
employment); Richard E. Brown, Inc. v. Caporaletti, 12 Va. App.
242, 245, 402 S.E.2d 709, 711 (1991) (claimant's cutting and
fitting motions performed in a bent over position while
installing a 100-pound furnace exposed him to a risk of back
injury unique to his employment).
In addition, the record indicates that the risk associated
with claimant's operation of the knitting machine was a
contributing cause of her injury. Claimant was in the act of
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performing a deep knee-bend to reach the lowest row of yarn on
the machine when she heard a pop and felt a tearing sensation in
her left knee. The acute angle knee-bend required to operate the
knitting machine increased the likelihood that claimant would
tear the medial meniscus in her knee, and the injury to
claimant's knee can be fairly traced to this increased risk.
This case is distinguishable from those cases in which the
claimant's injury occurred during the course of the employment
but was not causally related to a condition or exertion peculiar
to the job. See Johnson, 237 Va. at 184-85, 376 S.E.2d at 75-76
(no evidence established that an "actual risk" of employment
caused claimant's knee to "give way" and claimant to fall to the
floor); United Parcel Service of America v. Fetterman, 230 Va.
257, 259, 336 S.E.2d 892, 893 (1985) (no evidence established
that back strain that occurred when claimant bent over to tie his
shoe was caused by a hazard peculiar to the workplace); Barbour,
8 Va. App. at 484, 382 S.E.2d at 306 (no evidence established
that back strain that occurred when claimant bent over to pick up
a piece of plastic pipe was caused by a work-related risk or
exertion). Unlike the injuries in those cases, claimant's knee
injury did not merely occur during the course of her employment
as a knitter without any link to her working environment. The
evidence established a causal connection between the unique
demands of operating the knitting machine and the torn cartilage
in claimant's left knee. Operating the knitting machine required
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claimant to bend her knees until her "rear end [was] lower than
[her knees]" and her weight rested on her heels. This manner of
reloading the lowest creels with yarn increased her risk of
tearing cartilage in her knee and directly contributed to cause
her injury. Cf. Marion Correctional Treatment Ctr. v. Henderson,
20 Va. App. 477, 480-81, 458 S.E.2d 301, 303 (1995).
Appellant contends that compensation of claimant's injury is
barred on another ground. It argues that the commission's
findings indicate that the injury was a cumulative trauma caused
by a repetitive motion. We disagree.
Appellant misconstrues the findings made by the commission.
Although job-related impairments resulting from cumulative
trauma caused by repetitive motion are not compensable under the
Act, Stenrich Group v. Jemmott, 251 Va. 186, 199, 467 S.E.2d 795,
802 (1996), the commission did not conclude that claimant's
injury resulted from a cumulative trauma. Instead, the
commission found that the medial meniscus in claimant's left knee
was damaged once, on March 13, and that this single injury was
causally related to the risk of tearing cartilage associated with
performing deep knee-bends. The commission characterized the
extreme squatting as a "causative danger" and "a risk connected
with the employment" and did not find that the knee-bends injured
claimant gradually over time.
We hold that credible evidence supports the commission's
finding that the tear in claimant's medial meniscus was caused
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suddenly when she performed the deep knee-bend on March 13.
Claimant testified that she heard a pop and felt a painful
tearing sensation in her left knee as she squatted to reload the
knitting machine on March 13. On March 21, Dr. Charles Kelshaw
examined claimant and concluded that she had "medial meniscus
damage" in her left knee. Dr. Peter L. Perry operated on
claimant's knee on August 4 and discovered "a complex tear of the
entire posterior horn of the medial meniscus." Dr. Perry later
opined that this tear was related to the deep knee-bend performed
by claimant on March 13. No evidence in the record indicates
that the tear in her medial meniscus occurred gradually as a
result of cumulative trauma rather than suddenly due to the
particular knee-bend at issue on March 13. Because the evidence
in the record supports these findings, they cannot be disturbed
on appeal. See Code § 65.2-706(A).
In light of the foregoing reasons, we affirm the decision of
the commission.
Affirmed.
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Moon, J., dissenting.
I dissent for the reasons articulated in the March 4, 1997
panel opinion. Wyatt testified that the injury occurred before
she reached a squatting position and that the motion was no
different from those she carried out in everyday life in
non-employment-related circumstances:
Q. And had you gotten down to the full low
position when you heard the pop?
A. No, sir.
Q. All right. Where you somewhere in
between the high and the low?
A. Yes, sir.
* * * * * * *
Q. So you had not even reached your full
squatted position at the - - -
A. No, sir.
Q. - - time this popped; is that correct?
A. Right.
* * * * * * *
Q. And, is that a squat that you would make
several times an hour?
A. Yes.
Q. And, is that a squat also that you make
if you had to bend to pick up something
at home, pick up around the house or
whatever? Just a normal squat?
A. Yes.
Where, as here, there is no significant exertion, the action
of squatting involves no awkward position, and no condition
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peculiar to the workplace causes the injury, the injury cannot be
said to have "aris[en] out of" employment. County of
Chesterfield v. Johnson, 237 Va. 180, 185-86, 376 S.E.2d 73, 76
(1989); Grove v. Allied Signal, Inc., 15 Va. App. 17, 19-20, 421
S.E.2d 32, 34 (1992); Plumb Rite Plumbing Service v Barbour, 8
Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). I therefore would
reverse the commission's award of compensation.
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