COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Frank
Argued at Chesapeake, Virginia
VIRGINIA EQUIPMENT DEVELOPMENT AND
WCAMC CONTRACTOR'S GROUP
SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION* BY
v. Record No. 0928-01-1 JUDGE ROBERT P. FRANK
FEBRUARY 12, 2002
GLENN ANTHONY HINEBAUGH
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Iris W. Redmond (Midkiff, Muncie & Ross, on
briefs), for appellants.
John H. Klein (Montagna, Breit, Klein &
Camden, on brief), for appellee.
Virginia Equipment Development and WCAMC Contractors Group
Self-Insurance Association (employer) contend that the Workers'
Compensation Commission (commission) erred in awarding benefits
to Glenn A. Hinebaugh (claimant) by finding (1) claimant
suffered an injury by accident arising out of and in the course
of his employment; (2) claimant's current disability and medical
condition was caused by the injury of March 31, 2000; (3)
claimant's period of disability was supported by the evidence.
For the reasons that follow, we affirm the commission's award.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
On or about March 31, 2000, claimant was working for
employer as a pipe layer on a job in the Pembroke area of
Virginia Beach. Claimant, in a bent position, had been breaking
into a catch basin with a two-pound maul (sledgehammer) for two
to three hours. Claimant testified that after he had hammered a
hole big enough to insert a pipe, "I got up from beating it and
went over to grab a pipe and as I started to walk towards the
ditch to get the pipe, I got a real tingling and a numbness in
my back." He also testified, "[B]efore I could get to the pipe,
my back went out." On further questioning by the deputy
commissioner, claimant explained he was walking down the ditch
to grab the pipe and, "[a]s soon as I started to head for the
pipe, that's when my back went out," adding, "[i]t felt like a
little jolt in my back and then just numbness."
As a result of this back pain, claimant testified he fell
to the ground and his co-worker, Roy Dixon, had to assist him
out of the ditch and lay him down on the bank.
Claimant's medical history prior to March 31, 2000,
indicated claimant went to Patient First on May 17, 1995,
complaining of an "acute injury to his lower back [that
occurred] while working construction on a jack hammer that got
stuck." At that time, he complained of pain radiating into his
right thigh. He was diagnosed as having "lumbar strain." No
neurological dysfunction was noted. Patient First records
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indicated claimant was "symptomatically pain-free [and] ha[d]
already gone back to work" on May 31, 1995. On August 9, 1996,
claimant presented to Patient First again, complaining of back
pain caused by "lifting [a lot] of concrete and doing some
shoveling." Again, "lumbar strain" was the diagnosis. On
August 23, 1996, his symptoms improved, and he was released to
regular duty.
On February 25, 1999, 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." At that time, the diagnosis
was "low back pain." On March 4, 1999, claimant's symptoms
continued, and it was noted that the paresthesia was "especially
[on] his right."
Claimant was examined for the current injury on April 14,
2000. Dr. Colin Hamilton, an orthopaedist, noted that 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 low back pain." He
noted radiating pain bilaterally into claimant's buttocks and
down his left leg. Dr. Hamilton diagnosed a left-sided
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herniated disc. Claimant testified he had indicated to
Dr. Hamilton that his back hurt almost constantly since his 1995
injury. However, Dr. Hamilton's office notes indicate claimant
referred to "intermittent" symptoms.
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 low back pain since then, it seems reasonable to
relate his present pain syndrome, which includes sciatica, to
that injury."
Dr. Hamilton indicated on the same date: "Has a herniated
lumbar disc on left. Has had persistent LBP since injury at
work 1995." Claimant was scheduled for surgery. His "History
and Physical Examination Report" for that surgery states a
"History of Present Illness" as: "5 yo [(year old)] hx
[(history)] of back pain [with] radiculopathy. Inj. using a
jackhammer in 1995."
The MRI, performed on May 15, 2000, indicated "an
extra-forarninal herniated nucleus pulposus at L5-S1 on the left
side." On May 17, 2000, Dr. Hamilton learned that coverage for
the surgery was denied by the carrier. On June 7, 2000,
Dr. Hamilton indicated claimant had "a herniated L-5 disc[,]
related to his work injury 3/31/00."
When claimant initially saw Dr. Hamilton on April 14, 2000,
claimant indicated he had been unable to work for the two weeks
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since the injury. Dr. Hamilton, on April 26 and May 17, 2000,
indicated claimant was unable to work. The doctor's next
notation concerning claimant's ability to work was his report of
September 1, 2000, in which he released claimant to light duty.
The deputy commissioner found claimant had established an
injury by accident on March 31, 2000. The deputy further found
claimant's disability was causally related to the March 31, 2000
accident and awarded claimant temporary total disability through
September 5, 2000. From this opinion, employer requested review
before the full commission.
By opinion dated March 9, 2001, the full commission
affirmed the deputy's opinion, awarding temporary total benefits
from April 14, 2000, through September 5, 2000. The commission
described claimant's work as bending over and "breaking into a
'catch basin' with a two-pound hammer." The commission recited
claimant's testimony 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.'" 1
1
This description of events that led to the injury is
somewhat abbreviated and may lead to a misunderstanding of the
commission's ruling. The facts are that claimant had been
breaking into a catch basin with a two-pound sledgehammer.
After he hammered a hole large enough to insert a pipe, he got
up to walk over and grab a pipe. As he started to walk to the
ditch, his back "went out," and he felt a "jolt" in his back,
followed by numbness.
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Analysis
I. Injury by Accident
Employer argues the evidence did not establish an injury by
accident. Employer contends claimant failed to identify any
particularity in time or place, a sudden precipitating event, or
mechanical change to his body. Claimant's injury, employer
maintains, was the result of cumulative trauma or simply an
ongoing condition caused by his prior injury. 2
We review the evidence in the light most favorable to
claimant, the party prevailing below. Goodyear Tire & Rubber
Co. v. Harris, 35 Va. App. 162, 165, 543 S.E.2d 619, 620 (2001).
To support an award under the Workers' Compensation Act,
the commission must find "(1) an 'injury by accident' or
occupational disease, (2) arising out of, and (3) in the course
of, the employment" of a claimant. Morris v. Morris, 238 Va.
578, 584, 385 S.E.2d 858, 862 (1989).
To establish injury by accident, "a claimant must 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." Id. at
2
In employer's brief, he restricted his argument to "injury
by accident." However, at oral argument, employer expanded this
argument to include whether the injury arose out of claimant's
employment. We will not consider this argument as it was not
presented in employer's brief. See Buchanan v. Buchanan, 14 Va.
App. 53, 56, 415 S.E.2d 237, 239 (1992).
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589, 385 S.E.2d at 865 (emphasis in original). The sudden
precipitating event:
is one that "immediately" causes an injury,
as distinguished from an injury that appears
or occurs gradually. See Stenrich Group v.
Jemmott, 251 Va. 186, 467 S.E.2d 795 (1996).
However, an injury or injuries may be caused
by one or several "sudden (or immediate)
events" that cause the mechanical changes to
occur in the body.
R & R Constr. Corp. v. Hill, 25 Va. App. 376, 379, 488 S.E.2d
663, 664 (1997). See also Southern Express v. Green, 257 Va.
181, 189, 509 S.E.2d 836, 841 (1999).
"[The] pain does not have to be contemporaneous with the
accident." Ratliff v. Rocco Farm Foods, 16 Va. App. 234, 239,
429 S.E.2d 39, 42 (1993). However, "injury by accident" does
not include "cases in which the injury is gradually incurred or
incurred at an unknown time." Manassas Ice & Fuel Co. v.
Farrar, 13 Va. App. 227, 232, 409 S.E.2d 824, 828 (1991).
This issue is a mixed question of fact and law; therefore,
this Court defers to the commission's factual findings on injury
by accident but reviews the final determination de novo.
Goodyear Tire & Rubber Co., 35 Va. App. at 167-68, 543 S.E.2d at
621.
Although employer argues the evidence did not support a
finding of a particular incident causing the injury, we find the
evidence sufficient to prove the injury to claimant's back
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occurred at a particular time and place as a result of a
specific incident.
Claimant was bending over and swinging a two-pound hammer
for approximately two to three hours. When he concluded the
task, he stood up and began to walk toward a piece of pipe.
However, as he started to walk, he felt a sudden "jolt"
accompanied by numbness.
Claimant did not gradually develop this back pain. He
suddenly felt the "jolt" after standing up and beginning to
walk, after swinging a two-pound hammer in a bent-over position
for several hours on March 31, 2000. The injury resulted from
this single identifiable incident "on a definite occasion during
the performance of a specific piece of work." Southern Express,
257 Va. at 189, 509 S.E.2d at 841.
Despite the commission's abbreviated factual findings, the
facts in the record show an identifiable, precipitating event
for proving injury by accident. We find the evidence supports
the commission's determination. 3
3
Even if the commission made an incorrect finding of fact,
we still may affirm their conclusion. See Mercy Tidewater
Ambulance Serv. v. Carpenter, 29 Va. App. 218, 226, 511 S.E.2d
418, 422 (1999) (an appellate court can affirm a correct
conclusion of a lower court even though that decision was made
for the wrong reasons).
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II. Causation
Employer next contends claimant failed to prove his injury
was caused by the accident of March 31, 2000, rather than the
result of his pre-existing injury or of cumulative trauma.
"Causation is a factual determination to be made by the
commission, but the standards required to prove causation and
whether the evidence is sufficient to meet those standards are
legal issues" which this Court reviews de novo. Hercules, Inc.
v. Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 188 (1991).
The evidence here is sufficient to support the commission's
finding of causation. Claimant testified he was able to perform
his job, clearly uninjured, prior to his attempt to stand up and
walk over to the pipe. In addition, the medical evidence,
although inconsistent, concluded after reviewing all of
claimant's tests, including his MRI, that the herniated disc was
caused by the accident at work on March 31, 2000. As the
commission's finding is supported by credible evidence, we will
not disturb it on appeal. Id.
Employer's contentions address the weight that should have
been afforded claimant's evidence. Employer suggests
Dr. Hamilton did not make his causation determination based on
the medical evidence, but instead to insure claimant's operation
was covered by employer. The commission determined the
credibility of the witnesses and evidence and found the doctor's
final conclusion of causation credible. We will not disturb
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this finding on appeal. Marriott Int'l, Inc. v. Carter, 34 Va.
App. 209, 215-16, 539 S.E.2d 738, 741 (2001).
Employer also argues Hinebaugh simply aggravated an old
injury on March 31, 2000 and, therefore, the injury actually was
created by an earlier event. The law and the evidence do not
support employer's interpretation of events.
Workers need not be "injury free" to receive compensation.
If a pre-existing condition is exacerbated or aggravated by an
industrial accident, the resulting disability is compensable.
Corning, Inc. v. Testerman, 25 Va. App. 332, 339, 488 S.E.2d
642, 645 (1997). For example, in Goodyear Tire & Rubber Co.,
this Court affirmed the award of compensation to a claimant who
had arthritis and a degenerative knee condition prior to
sustaining an aggravating inner knee injury while disengaging
fabric from a machine. 35 Va. App. at 171, 543 S.E.2d at 623.
Here, the evidence indicated Hinebaugh had a pre-existing
problem with his back. However, he did not have a left-side
herniated disc at L5-S1 until after the accident on March 31,
2000. Although employer contends the medical evidence proved
this injury already existed, the commission found the previous
injury was to the right side. Given the May 1995 medical record
clearly rules out a left back injury and the 1999 medical record
finds the L5-S1 disc space "WNL" (within normal limits), we find
that the evidence supports the commission's finding.
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III. Period of Disability
Finally, employer contends the medical evidence did not
support the commission's determination that claimant was totally
disabled between April 26, 2000 and September 5, 2000.
On April 26, 2000, and May 17, 2000, Dr. Hamilton noted
Hinebaugh "obviously cannot work," and he recommended surgery.
He also noted the need for surgery in May 2000. In September,
the doctor, for the first time since March, released his patient
for light-duty.
The commission was entitled to infer from this evidence
that Hinebaugh was unable to work from the point he began
receiving medical care until the doctor released him to light
duty work. We cannot, as a matter of law, reverse this factual
finding. Webb v. Eastern Airlines, 1 Va. App. 421, 423, 339
S.E.2d 563, 564 (1986).
For the reasons stated, we affirm the award of the
commission.
Affirmed.
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