COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
PAULA TURCIOS
OPINION BY
v. Record No. 2242-95-4 JUDGE ROSEMARIE ANNUNZIATA
APRIL 8, 1997
HOLIDAY INN FAIR OAKS, ET AL.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Arturo Hernandez for appellant.
Douglas A. Seymour (Law Offices of E. Wayne
Powell, on brief), for appellees.
Claimant, Paula Turcios, appeals the decision of the
commission reversing the deputy commissioner's credibility
findings and denying her application for temporary total
disability benefits for an alleged injury by accident arising out
of and in the course of her employment with employer, Holiday Inn
Fair Oaks. Claimant contends that the commission's decision was
arbitrary and must be reversed. We agree.
I.
All the evidence was taken before the deputy commissioner.
Claimant testified that in the course of cleaning one of
employer's rooms on December 9, 1992, she slipped on baby powder
on the bathroom floor, which caused her to fall and land on her
buttocks. Claimant attempted to continue working in the room,
but upon bending to make the bed, she felt pain which precluded
her from continuing. Claimant waited in the room. When her
supervisor, Marguerita Gomez, passed by, claimant recounted her
slip and fall and the resulting pain she felt in her back, neck
and legs. Gomez testified and confirmed claimant's recitation of
the incident.
Gomez stated that she reported the incident to her manager,
Cathy Kolodziej, who referred Gomez and claimant to Michelle
Wertz, employer's personnel director. Claimant testified that
she told Kolodziej she had fallen and that her pain began when
she bent over to make the bed. Gomez testified that, acting as
claimant's interpreter, she told both Kolodziej and Wertz
claimant had slipped and fallen on the bathroom floor. Claimant
had difficulty understanding what Gomez told Kolodziej and Wertz
because she does not understand English well. Neither claimant
nor Gomez saw Kolodziej or Wertz prepare a report describing the
incident they had reported.
In November 1994, Donald Roberts replaced Wertz as
employer's human resources director. Roberts testified that both
Wertz and Kolodziej were no longer employed by employer. Roberts
identified an internal report prepared on December 9, 1992 by
Kolodziej as a form used by employer when an employee is injured.
Roberts also identified "Employer's First Report of Accident"
prepared by Wertz also on the day of the incident. The internal
accident report describes the incident as follows: "[Claimant]
was making the bed in # 607, she went to tuck the corner in, when
she was moving in a fast pace and strained her neck which caused
her back to ache." Employer's First Report of Accident describes
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the occurrence as follows: "[claimant] was making the bed in 607
when she tucked in the corner, and pulled neck causing back
pain."
On December 10, 1992, claimant sought medical treatment from
an emergency clinic. Claimant testified that she did not
describe the circumstances of her accident to the people at the
clinic because of her poor command of English and because nobody
at the clinic could translate for her. She testified that she
described her pain and its onset in response to the questions
asked. The clinic report from the December 10 visit states that
claimant suffered a "work related injury on 12-09-92 while making
bed at Holiday Inn - c/o low back pain - Pt. speaks very little
English - Pt. states she was bending not lifting when injury
occurred." The report of a radiology examination conducted the
same day notes, "c/o back pain. Injured when making bed
yesterday." Because of the poor copy quality of the clinic
report in the record from the commission, the clinic's diagnosis
of claimant's condition is not discernible. However, it is clear
the physical findings in the clinic's report address the
condition of the L-5 area of claimant's spine. Claimant next
sought medical attention in October 1993 when she returned to the
emergency clinic, apparently complaining of back pain. The
record contains no medical reports from the October 1993 visit.
Claimant thereafter sought medical treatment in May 1994
from Dr. Julio C. Gonzalez. Dr. Gonzalez's initial report of May
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16, 1994 states, "[claimant] is being evaluated in regard to
injuries sustained at work around December 9, 1992. The patient
presents with severe pain in the lumbosacral areas that radiates
to the right lower extremity."
Dr. Gonzalez diagnosed right sciatic neuralgia secondary to
trauma, chronic back pain, and lumbosacral contusion. He opined
that claimant may have denervation activity in the L-5 roots, the
same spinal area noted in the medical report from the emergency
clinic claimant initially consulted. Furthermore, an MRI
revealed spondylolysis at L-5 and a grade II spondylolisthesis at
L-5/S-1. Dr. Gonzalez's initial report also relates the history
of claimant's condition as follows:
Around December 9, 1992, [claimant] was
cleaning a bathroom and skidded on a slippery
floor and fell to the floor in a sitting
position. The patient was able to stand up
on her own, and try to continue working,
cleaning hotel rooms, and was trying to
finish dressing the bed, she suddenly became
stiff in the back and could not move. She
went ahead and informed the incident to the
supervisor, and, apparently, they did not
take any account of the incident, as it was,
and maybe they misunderstood that she fell in
a sitting position before moving to the bed.
She was sent several days later "clinic",
[sic] where she was examined and released.
She was place [sic] off work for about seven
days and then, when she returned to work, she
tried to obtain light duty status, but she
could not get it. She went on working with
difficulties, and the pain continued.
Several months later, she became acutely ill,
for the same symptomatology, and went to the
clinic again. The pain is described as
shooting from the back to the right lower
extremity, and it is worse at the end of the
day, after making twelve to fifteen and
sometimes eighteen rooms in the hotel. . . .
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Dr. Gonzalez examined claimant nine times between May 16 and
July 21, the day he instructed her to remain out of work. In the
reports from six of those visits, Dr. Gonzalez noted that
claimant was under his care in regard to injuries sustained at
work in December 1992. Dr. Gonzalez treated claimant for the
same condition during each of these visits.
II.
There is no dispute that claimant injured her back on
December 9, 1992, while working for employer. There is also no
dispute that claimant was totally disabled as of July 21, 1994.
The question before the commission was whether the evidence
established that claimant suffered an "injury by accident" on
December 9, 1992, and, if so, whether that injury was causally
related to her total disability.
A. INJURY BY ACCIDENT
Determination of whether an "injury by accident" occurred
depends on whether claimant slipped and fell in the bathroom as
she and Gomez described. There is no dispute that if claimant
slipped and fell in the bathroom, she suffered an "injury by
accident" within the meaning of the Act. 1 Conversely, there is
1
To establish an "injury by accident," a claimant must
prove "an identifiable incident or sudden precipitating event
[that results] in an obvious sudden mechanical or structural
change in the body." E.g., Morris v. Morris, 238 Va. 578, 589,
385 S.E.2d 858, 865 (1989). It is not necessary to show an
immediate onset of the symptoms of an injury. Hercules, Inc. v.
Gunther, 13 Va. App. 357, 364 n.2, 412 S.E.2d 185, 189 n.2
(1991).
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no dispute that in the absence of a slip and fall in the
bathroom, no "injury by accident" occurred.
Claimant bore the burden of proving the slip and fall
occurred. See, e.g., Hercules, Inc. v. Stump, 2 Va. App. 77, 79,
341 S.E.2d 394, 395 (1986). There is no dispute that, standing
alone, the substance of the ore tenus testimony describing the
slip and fall is sufficient to carry the burden. The deputy
commissioner found that testimony to be credible and awarded
compensation. The full commission reversed, necessarily
rejecting the deputy commissioner's credibility determination.
The commission is not constrained to accept the credibility
findings of a deputy commissioner. However, the decision to
reverse such findings cannot be rendered arbitrarily. The record
must reflect a reasonable basis for the commission's different
conclusion. Williams v. Auto Brokers, 6 Va. App. 570, 575, 370
S.E.2d 321, 324 (1988). 2 We find no reasonable basis in the
record to support the commission's decision to reverse the
deputy's credibility determination. We conclude, therefore, that
the commission's decision was arbitrary and must be reversed.
2
Although we believe prudence would dictate otherwise,
the law does not require the commission to articulate
specifically its reasons for reaching a different credibility
determination, unless it reverses a "specific, recorded
observation regarding . . . behavior, demeanor or appearance."
See Bullion Hollow Enters., Inc. v. Lane, 14 Va. App. 725, 729,
418 S.E.2d 904, 907 (1992). While the commission generally need
not articulate its reasons for reversing a deputy's credibility
findings, this principle does not provide authority for the
commission to render its decisions arbitrarily. Rather, its
decision must be supported by the record. See Williams, 6 Va.
App. at 573-74, 370 S.E.2d at 323-24.
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The commission's decision to reverse the deputy's
credibility determination was premised on the absence of a
description of a slip and fall in the written reports of the
incident, all of which the commission found "reflect a history of
back pain while bending over to make a bed." The commission
credited the substance of the written reports, and in so doing
reversed the deputy's credibility finding with respect to the ore
tenus testimony, on the basis of the written reports'
contemporaneity to the incident. However, the commission's
reliance on the fact that a description of the slip and fall did
not appear in any of the "contemporaneous" reports inexplicably
fails to consider the most contemporaneous report of all, that
made by claimant to Gomez, claimant's supervisor. There is no
dispute that the initial report, from claimant to Gomez,
recounted a slip and fall in the bathroom. Under the
commission's theory concerning the relative reliability of the
reports, the report to Gomez, describing the slip and fall, is
the most reliable report of all. The second most contemporaneous
report of the incident was Gomez's report to Wertz and Kolodziej,
which also described the slip and fall.
In addition, the record does not support a finding that the
ore tenus testimony was inherently incredible. While the
credibility of claimant's testimony could be questioned by her
obvious interest in the outcome of the case, the same cannot be
said of Gomez. Nothing in the record supports the conclusion
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that Gomez was motivated by bias or interest to testify that a
slip and fall occurred. Indeed, there is no evidence that Gomez
shared any association with claimant except as an agent of
employer. Furthermore, the ore tenus testimony was contrary to
the written reports only in what the written reports did not
contain. The information contained in the written reports,
which, as the commission found, "all reflect a history of back
pain while bending over to make a bed," was consistent with the
ore tenus testimony describing claimant's onset of pain.
Finally, the absence of a description of a slip and fall in the
written reports was explained by the ore tenus testimony before
the deputy commissioner. That testimony described the
circumstances surrounding the preparation of the reports, and was
unrefuted by any other evidence. Claimant's poor command of
English limited her ability to give her account of the accident
to the employer and to relate the full extent of her accident to
the clinic personnel, none of whom could translate for her, as
she attempted to describe her pain, not its causative source, to
them.
In sum, we find no reasonable basis to support the
commission's decision to reverse the deputy's credibility
determination. Accordingly, we find the commission's decision to
be arbitrary and reverse it.
B. CAUSATION
We must next determine whether claimant's total disability
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as of July 21, 1994 is causally related to her December 9, 1992
slip and fall. Both the deputy commissioner and the full
commission considered the significance of the lapse of time
between claimant's injury and her treatment by Dr. Gonzalez. The
deputy commissioner found claimant's July 1994 disability
causally related to the December injury in light of Dr.
Gonzalez's uncontradicted medical opinion. However, because of
the absence of a specific medical finding of causation, the
commission found no causal connection.
We find that the commission erred in employing such a
standard. It is well established that, while causation is an
essential element of a compensable injury by accident, causation
between an injury and a disability need not be established by the
testimony of a medical expert. See Dollar General Store v.
Cridlin, 22 Va. App. 171, 177, 468 S.E.2d 152, 154-55 (1996).
Here, Dr. Gonzalez's reports sufficiently establish a causal
relationship between claimant's injury of December 1992 and her
July 1994 disability. Although Dr. Gonzalez never used the
words, "I find a causal connection," it is clear from a review of
his records that he found a causal connection. At the beginning
of his treatment, Dr. Gonzalez referred to the December 1992
injury as the origin of claimant's condition. Dr. Gonzalez
treated claimant for the same symptoms involving the L-5 area of
her spine, which she expressed in December 1992, immediately
after the injury occurred. Nowhere in the medical records is
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there evidence to suggest an intervening cause. And, Dr.
Gonzalez's history describes the ongoing and uninterrupted pain
claimant experienced beginning in December 1992 and continuing
through his treatment.
For the reasons stated, we reverse the decision of the
commission and remand the case to the commission to enter an
award consistent with the views expressed herein. 3
Reversed and remanded.
3
In light of our conclusion, we decline to address the
other issues claimant raises on appeal.
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