Opinion
Record No. 2514-92-2
May 3, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Charles D. Bennett, Jr., on brief), for appellant. Appellant submitting on brief.
(John K. Coleman; Kathryn A.K. Untiedt; Slenker, Brandt, Jennings Johnston, on brief), for appellees. Appellees submitting on brief.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Norman L. Butler appeals from a decision of the Workers' Compensation Commission denying his claim for benefits for an injury allegedly sustained on November 5, 1991, while he was employed by Richardson Wayland Electrical Corporation ("Richardson"). Butler contends that the commission erred in holding that he failed to meet his burden of proving that his injury arose out of his employment.
On November 5, 1991, Butler started working for Richardson as a material truck driver/groundsman. His duties involved driving a truck, loading and unloading the truck, and working as a flagman. Butler testified that on his first day on the job, after unloading two or three spools of wire from the truck at 7:30 a.m., he suddenly felt a burning sensation in his back. He stated that the burning sensation occurred as he was standing upright grasping one of the spools. Butler admitted that he did not report the incident to his employer on that day and that he continued to work the rest of the day. Nevertheless, Butler contends that this work-related incident caused his injury and back pain.
Butler testified that on November 6, 1991, his second day at work, at approximately 4:10 p.m., while bending down and twisting beneath a truck to pick up some trash, he felt a catch in his back. He testified that the catch in his back occurred in the same location of his back where he had experienced the burning sensation on the previous day. He had worked the entire day up until that point with no complaints. He left a note for his foreman, James Taylor, stating that when he bent and reached down to pick up some metal and trash under the edge of the truck, he felt something burn and sting in his back. Butler did not mention in the note anything about having injured his back or having experienced similar pain when he moved the spools of wire the previous day. After Butler left the note, he went home. The next morning he sought medical treatment at Medic One.
James Taylor testified that, on November 5, 1991, at 7:00 a.m., he assisted Butler in unloading the spools from the truck Butler was driving. Taylor testified that he rolled the empty spools off the truck and some other men lowered them down. Taylor denied that Butler did any lifting of the spools. Taylor testified that Butler never mentioned anything to him on November 5 about having injured his back nor did Taylor observe anything unusual about Butler's behavior.
Taylor testified that, on November 6, 1991, Butler worked as a flagman until 2:30 p.m. and was then sent to have a flatbed repaired. Taylor instructed Butler that, after he had the repairs performed, he was to return to the shop and pick up trash in the yard. No heavy lifting was involved in this task. That evening around five o'clock, Taylor found Butler's note. He called Butler and left a message for him. A couple of days later, when Taylor talked to Butler, Butler told him that he had felt a burn or sting in his back as he bent down. At that time, Butler mentioned nothing about lifting the spools. A week later, Butler returned to work and told Taylor that he had hurt himself lifting spools. Taylor informed Butler that he, not Butler, had lifted the spools. Butler did not respond to Taylor's comment.
The medical records reveal that Butler told his doctors and medical providers that he felt pain in his back when he lifted spools of wire on November 5, 1991. The reports did not mention a specific incident on November 6, 1991, in which Butler complained of pain while picking up trash beneath a truck.
On appellate review, we construe the evidence in the light most favorable to the party who prevailed before the commission.R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "The burden is upon a claimant to prove by a preponderance of the evidence that he sustained a compensable injury." Virginia Dep't of Transp. v. Mosebrook, 13 Va. App. 536, 537, 413 S.E.2d 350, 351 (1992) (citation omitted).
"In order to be compensable, an injury must not only occur within the course of the employment but must also arise out of the employment; the injury must be caused by the conditions of the workplace." 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). In order to establish that the injury arose out of the employment, a claimant must "show that the conditions of the workplace . . . caused the injury." Barbour, 8 Va. App. at 484, 382 S.E.2d at 306. If the injury is the result of a hazard to which the claimant would be "equally exposed apart from the conditions of the employment," then the injury cannot be said to arise out of the employment. Richard E. Brown, Inc. v. Caporaletti, 12 Va. App. 242, 245, 402 S.E.2d 709, 711 (1991) (quoting First Federal Savings Loan Ass'n v. Gryder, 9 Va. App. 60, 65, 383 S.E.2d 755, 759 (1989)). "Whether an injury arises out of the employment is a mixed question of law and fact and is reviewable by the appellate court." Barbour, 8 Va. App. at 483, 382 S.E.2d at 305. Unless we can say as a matter of law that Butler's evidence was sufficient to meet his burden of proof, the commission's finding is binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The commission found that Butler failed to produce evidence sufficient to prove by a preponderance of the evidence that a work-related incident on November 5 or on November 6 caused his back injury. The commission noted inconsistencies in the history of the accident that Butler gave to the various medical providers. Butler told several doctors that he was injured moving spools on November 5; however, he told Dr. Guistolisi, an independent examiner, that he was moving spools on November 6 when he experienced injury. The commission found that Butler's inconsistent accounts, together with the inconsistent testimony of Butler and Taylor as to whether Butler had lifted the spools, could not support a finding of injury by accident arising out of Butler's employment on November 5, 1991. Taylor testified that the spools were empty and that Butler merely rolled them. He denied that Butler twisted, pulled, or lifted the empty spools. Moreover, Butler reported no injury at that time.
We cannot say that the commission erred as a matter of law. Butler's evidence did not establish to the fact finder's satisfaction that an injury resulted from his moving spools.
None of the medical reports cite Butler's bending to pick up trash as a cause of Butler's injury. Indeed, Butler's own testimony does not suggest that bending to pick up the trash caused his injury. He testified:
Q. In your mind I gather you're saying that it's this bending over incident that's caused your problems?
A. No, I didn't say that at all. I said that the pulling and lifting and twisting on the spools, the burning sensation started and then the next day when I was sitting down and twisting, kneeling down trying to pick up the stuff, is when it caught me where I wasn't able to render anymore work.
Thus, Butler failed to meet his burden of proving by a preponderance of the evidence that he had sustained a compensable injury. "It lies within the commission's authority to determine the facts and the weight of the evidence, and its findings in that regard, when supported by credible evidence, will not be disturbed on appeal." Rose v. Red's Hitch Trailer Servs., Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395 (1990) (citations omitted).
For the reasons stated, we affirm the commission's decision.
Affirmed.