Kemp v. Tidewater Kiewit

Moon, J.,

dissenting.

I would affirm the Industrial Commission’s decision vacating the award in this case because the evidence in the record does not, as a matter of law, require a finding that Kemp sustained an injury arising out of his employment.

Kemp testified at his hearing before the deputy commissioner that the injury occurred when he was “reach [ing] fully down.” Such a movement is necessary to tie one’s shoes, pick up a dropped envelope, or wipe up a spill from the floor, all routine tasks that one performs without extraordinary exertion. At his hearing, Kemp did not prove to the satisfaction of the deputy commissioner that his being on the trestle, his posture, or the weight of anything in his hand contributed to his injury. Nevertheless, the majority of this panel infers that he was “fully extended.” This is an inference drawn sua sponte and is not based on the findings of fact made by the deputy commissioner or by the full commission. Further, it violates the rule that the Court of Appeals may only draw inferences of fact in the light most favorable to the appellee. Morris v. Badger Powhatan/Figgie International, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986).

When ruling for appellant, if the deputy commissioner relied upon something that occurred at the hearing that does not appear in the testimony, the deputy commissioner should have noted it for the record. This is because the full commission may draw different *365inferences than the deputy commissioner. The insertion of such information in the record of the hearing is essential if the full commission and this court are to conduct well-reasoned reviews of the deputy commissioner’s findings. See Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 363 S.E.2d 433 (1987); Williams v. Auto Brokers, Inc., 6 Va. App. 570, 370 S.E.2d 321 (1988). In Pierce, we held that a deputy commissioner’s recorded observations concerning behavior and demeanor became part of the record that could not be arbitrarily disregarded. However, we cautioned in Williams that a deputy commissioner could not put his decision beyond review by merely mentioning as a reason for his decision the apparent credibility of the witnesses. Neither the Supreme Court nor this court has reversed the full commission and followed the deputy commissioner’s decision upon an assumption that the deputy commissioner must have perceived something at the hearing that does not appear in the record. Nevertheless, the majority makes such an assumption in this case.

Separately, I dissent from the majority’s conclusion of law that Kemp’s injury was caused by his work. The majority distinguished this case from Richmond Memorial Hospital v. Crane, 222 Va. 283, 278 S.E.2d 877 (1981), a case in which the Supreme Court upheld the denial of benefits to a nurse whose knee snapped while she was walking down the hall of the hospital where she worked. Although the majority putatively distinguished Crane by asserting that Kemp’s injury was “work related,” his injury is, in fact, no more work related than Nurse Crane’s injury: both were injured at their place of employment, during working hours, but one claimant suffered an injury while walking down the hall and the other claimant suffered an injury while bending over. In Kemp’s case, the commission specifically found, as a matter of fact, that he “was not exerting himself at the time he experienced the onset of numbness in his right hand.” Thus, there is no basis for distinguishing Kemp’s case from Crane. There is a basis for applying our holding in Russell Loungewear v. Gray, 2 Va. App. 90, 341 S.E.2d 824 (1986), however. There, we explained the Supreme Court’s language in Rust Engineering Co. v. Ramsey, 194 Va. 975, 76 S.E.2d 195 (1953):

Mere exertion, which is not greater than that ordinarily incident to employment but which combines with pre-existing disease to produce disability is not compensable as an “acci*366dental injury.”

Id. at 980, 76 S.E.2d at 198 (citation omitted).

As we said in Gray, the element of exertion must be present for there to be a compensable injury. In this context, exertion implies that at least more exergic effort was made than is necessary to move the body itself, and that the additional effort caused the injury.

This case also squarely presents the issues raised in City of Norfolk v. Lassiter, 228 Va. 603, 324 S.E.2d 656 (1985). There, fireman Lassiter was injured as he stepped out of the cab and onto the running board of a fire truck. Citing Crane, the Supreme Court held that “[n]ot every injury is compensable which results from a movement made by an employee on the job,” Lassiter, 228 Va. at 605, 324 S.E.2d at 658, but the Court did not articulate a test of what constitutes compensability. I would hold that the claimant must show that there was at least some significant work-related exertion that caused the injury. This result does not ignore the doctrine, well-established in Virginia, that the employer “takes the employee as he is,” McDaniel v. Colonial Mechanical Corp., 3 Va. App. 408, 414, 350 S.E.2d 225, 228 (1986), but instead applies the equally well-established concept of supervening cause. In this case, the predisposition to injury and the routine nature of the bending that Kemp claims caused the injury, compel the inference, in the absence of evidence to the contrary, that his intrinsic physical condition, and not anything connected to his employment, caused the injury. This analysis is in accord with the requirement that an injury be a “sudden mechanical or structural change in the body” which occurred “at some reasonably definite time,” Lane Co. v. Saunders, 229 Va. 196, 199, 326 S.E.2d 702, 703 (1985); see 1B A. Larson, The Law of Workmen’s Compensation, § 38.83 (1987).

Therefore, I would hold that Kemp failed to carry his burden of proof in the light of his pre-existing condition and his failure to prove to the satisfaction of the Industrial Commission that he exerted himself.