COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
WAL MART STORES, INC. AND NATIONAL UNION
FIRE INSURANCE COMPANY OF PITTSBURGH
v. Record No. 2546-94-1 MEMORANDUM OPINION *
BY JUDGE JOSEPH E. BAKER
RONALD S. BOYCE OCTOBER 10, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Monica L. Taylor (Matthew W. Broughton; Gentry,
Locke, Rakes & Moore, on brief), for appellants.
Karen M. Rye (Melody L. Cockrell, on brief),
for appellee.
In this appeal from a decision of the Workers' Compensation
Commission (commission), Wal Mart Stores, Inc. and National Union
Fire Unsurance Company of Pittsburgh (employer) contend that the
commission erred in finding that Ronald S. Boyce (claimant)
proved, by a preponderance of the evidence, an injury by accident
arising out of and in the course of his employment. At oral
argument, employer stated that the narrow issue before the Court
is whether claimant's injury arose out of his employment and
urged that the answer is "no" because the accident was not caused
by an actual risk of claimant's employment. Employer refines
that assertion to further argue that the injury occurred after
claimant had stretched to lift a small splinter of wood and while
he was recovering from the extended stretch. We do not agree
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that the actual risk principle prohibits an award under the facts
of this case and affirm the commission's decision.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. Crisp v. Brown's Tysons Corner
Dodge, Inc., 1 Va. App. 503, 504-05, 339 S.E.2d 916, 916 (1986).
Stated in that light, the record discloses that claimant had been
in the employ of employer for approximately two and one-half
years. At the time of his injury, claimant was at work in his
capacity as shoe department manager. In that capacity, his
responsibilities included the unloading and clean-up of incoming
freight, various paperwork, and payroll scheduling.
On January 11, 1994, while unloading boxes of shoes from a
wooden pallet, claimant observed a small piece of wood that had
splintered from the pallet. The piece of wood was twelve to
sixteen inches long and weighed less than a pound. A pallet,
four inches in height, was between claimant and the piece of
wood. To "get [the wood] out of the middle of the floor," he
stooped down, stretched "out over the pallet to reach . . . it."
He felt no pain as he bent to retrieve the item; however, as he
began "to stand up, as soon as [he] went to get up" his "back
went out" and he felt as if "somebody had stuck a rod up [his]
back, like a real bad spasm." Employer does not contend that
claimant did not sustain an accidental injury.
Claimant reported the injury to an assistant store manager
and left the work he was doing. Later that day, the pain
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worsened and he went to see Dr. Thankan B. Pillai, his family
physician, who after seeing MRI reports referred claimant to Dr.
Richard K. Neal, Jr., a neurosurgeon, who performed a "left
partial hemilaminectomy of the L4-5 and a herniated nucleus
pulposus, L4 interspace, left," and opined that claimant's
condition "developed as a direct result of an injury that he
sustained at work on 1/11/94."
A finding by the commission that an injury arose out of and
in the course of employment is a mixed finding of law and fact
and is properly reviewable on appeal. Plumb Rite Plumbing
Service v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305, 305
(1989); Park Oil v. Parham, 1 Va. App. 166, 168, 336 S.E.2d 531,
532 (1985). In order to establish an injury by accident, a
claimant must prove (1) an identifiable incident; (2) that occurs
at some reasonably definite time; (3) an obvious sudden
mechanical or structural change in the body; and (4) a causal
connection between the incident and bodily change. Lane Co. v.
Saunders, 229 Va. 196, 199, 326 S.E.2d 702, 703 (1985). All the
cases decided by the Supreme Court of Virginia and this Court
that support the Plumb Rite and similar decisions emphasize that
the claimant failed to prove an accident, identifiable incident,
or sudden precipitating event that occurred at a particular time.
The commission's factual findings were (1) that while at work;
(2) performing a duty required by his job; (3) at approximately
7:15 a.m. on January 11, 1994; (4) claimant in an awkward
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position stretched out while reaching over a pallet; (5) to pick
up a twelve to sixteen inch long splinter of wood weighing less
than a pound that had fallen on the floor on the opposite side of
the pallet from where claimant stood; (6) suffered a sudden
severe pain in his lower back as he attempted to return to his
standing position; and (7) that the awkward movement was the
cause of the condition for which compensation is sought. All of
these facts are supported by the record.
Upon appellate review, the findings of fact made by the
commission will be upheld when supported by credible evidence.
Crisp, 1 Va. App. at 504, 339 S.E.2d at 916. The fact that there
is contrary evidence in the record is of no consequence if there
is credible evidence to support the commission's findings.
Wagner Enterprises, Inc. v. Brooks, 12 Va. App. 890, 894, 407
S.E.2d 32, 35 (1991). Where reasonable inferences may be drawn
from the evidence in support of the commission's factual
findings, they will not be disturbed by this Court on appeal.
Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d
695, 698 (1988).
Employer argues that claimant cannot receive compensation
because the injury received was not the result of an "actual
risk." While asserting that there is no evidence to support the
commission's finding that the injury resulted from an "awkward"
stretching to procure the splinter of wood, employer further
asserts that if there was an "awkward stretch" that may have been
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classified as an actual risk the injury occurred when claimant
was returning to his original position and, therefore, the rise
was not an actual risk for which compensation may be awarded.
While appearing to concede that claimant sustained an
accidental injury in the course of his employment, employer
argues that the injury occurred during the return from retrieving
the splintered wood, not as claimant reached for it. Employer
argues that because the pain was exhibited only as claimant
arose, there was no "actual risk" of employment which supports
the award. It appears that employer asserts that a dangerous and
rocky road traveled by the employee is an actual risk of
employment which would permit an award of benefits if an employee
was injured thereon; however, if the employee was injured on that
road upon his return to a safe place, the injury would not be
compensable. We disagree and find that there is credible
evidence in the record to support the commission's decisions and
its judgment is affirmed.
Affirmed.
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Wal Mart Stores, Inc. v. Ronald S. Boyce
Combined Opinion