COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
EASTERN STATE HOSPITAL
MEMORANDUM OPINION *
v. Record No. 2211-98-1 PER CURIAM
JANUARY 19, 1999
TENIA P. ROBERSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Mark L. Earley, Attorney General; Judith W.
Jagdmann, Deputy Attorney General; Gregory E.
Lucyk, Senior Assistant Attorney General;
Scott J. Fitzgerald, Assistant Attorney
General, on brief), for appellant. Appellant
submitting on brief.
(Johnny C. Cope; Cope, Olson & Yoffy, on
brief), for appellee. Appellee submitting on
brief.
Eastern State Hospital ("employer") appeals a decision of
the Workers' Compensation Commission ("commission") awarding
benefits to Tenia P. Roberson ("claimant"). Employer contends
that the commission erred in finding that (1) claimant proved
that she sustained an injury by accident arising out of her
employment on November 13, 1997; (2) the November 13, 1997
incident resulted in a new injury, rather than a non-compensable
aggravation of claimant's March 28, 1995 injury; and (3)
claimant's testimony was credible. Finding no error, we affirm.
I. and III.
On appeal, we are bound by the factual findings of the
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
commission if they are supported by credible evidence in the
record. See Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.
App. 503, 504, 339 S.E.2d 916, 916 (1986); Code § 65.2-706.
However, "[w]hether an injury arises out of the employment is a
mixed question of law and fact and is reviewable by the appellate
court." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482,
483, 382 S.E.2d 305, 305 (1989). "The phrase arising 'out of'
refers to the origin or cause of the injury." County of
Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74
(1989). To prevail, claimant must "show that the conditions of
the workplace . . . caused the injury." Barbour, 8 Va. App. at
484, 382 S.E.2d at 306.
In ruling that claimant's injuries arose out of her
employment, the commission found as follows:
The claimant's accident occurred when
she collided with a co-worker in a hallway on
the employer's premises. Although the
evidence regarding the severity of the
collision is in conflict, a resolution of
that conflict is not necessary. The thrust
of the employer's argument on review is that
this type of accident can occur in any
setting, whether at work or outside the
workplace, and that it is, therefore, not due
to a risk that arises from the workplace.
Contrary to the employer's position, the
issue is not whether the accident is of the
type that occur outside the workplace; the
issue is whether the workplace, in the
particular situation at hand, exposed the
claimant to the risk of injury. In this
case, the injury was caused by the
inattentiveness of a co-employee. Accidents
due to the negligence of co-workers
historically have been found to arise out of
the employment.
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Claimant testified that Nurse Alice Gibilaro was walking
briskly, with her head turned away from claimant, and collided
with claimant as she spoke to another employee in a hallway.
Gibilaro corroborated claimant's evidence, explaining that, while
en route to another ward, someone called her name in reference to
a job-related issue, and she turned her head and "walked into"
claimant. Thus, credible evidence supports the commission's
factual findings and related conclusion that claimant's injuries
were caused by an actual risk of employment. See Goodyear Tire &
Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437
(1987).
II.
In rejecting employer's argument that on November 13, 1997
claimant suffered a non-compensable aggravation of her March 28,
1995 injury rather than a new injury, the commission made the
following factual findings:
[T]he claimant had been under medical
treatment for her March 28, 1995 injury until
May, 1996. She then went without treatment
until August, 1997, when she returned to Dr.
[Jeffrey D.] Moore complaining of right leg
pain and numbness that apparently was related
to her chronic back condition. Dr. Moore saw
the claimant again on September 5, 1997, at
which time the claimant's symptoms had not
worsened.
The claimant had no further medical
treatment until she was seen at FirstMed
following her accident on November 13, 1997.
At that time, in addition to the right leg
symptoms, the claimant had back pain and
muscle spasms. The history taken at the time
was that the claimant was bumped into at
work, which caused her to suddenly twist her
back. This caused sharp pain in her lower
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lumbar area as well as muscle spasm. The
claimant continued to treat thereafter with
FirstMed, and later returned to Dr. Moore.
He opined that the claimant had aggravated
her pre-existing back condition in the
accident of November 13, 1997.
The medical records of FirstMed and Dr. Moore, coupled with
claimant's testimony, provide credible evidence to support the
commission's factual findings. Thus, we will not disturb those
findings on appeal. Based upon those findings, the commission
could reasonably conclude that claimant sustained a new injury by
accident at work on November 13, 1997. Furthermore, Dr. Moore's
opinion constitutes credible evidence to support the commission's
finding that claimant's new accident on November 13, 1997 caused
an aggravation of her pre-existing condition, for which employer
is responsible. See First Fed. Sav. & Loan Ass'n v. Gryder, 9
Va. App. 60, 63, 383 S.E.2d 755, 757-58 (1989).
For these reasons, we affirm the commission's decision.
Affirmed.
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