Opinion
Record No. 2323-93-4
Decided: November 22, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
Robert S. Wasowski (Ashcraft Gerel, on brief), for appellant.
Elizabeth A. Zwibel (William J. Minor, Jr.; Wochok, Robertson Notarius, on brief), for appellees.
Present: Judges Barrow, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
On appeal, Michael McKenney contends the Workers' Compensation Commission erred in finding that the evidence failed to prove that his back injury arose out of his employment. Because the evidence does not prove as a matter of law that a specific identifiable work-related event caused McKenney's injury, we cannot say that the commission erred in holding that the claimant failed to prove causation.
The claimant presented evidence which indicated that he injured his back while loading a delivery truck at work. According to the claimant, the injury occurred in the morning while he was turning around with a tray of doughnuts in his hand. While in that position, he coughed and suddenly "had a real sharp pain" in his back. The claimant worked the entire day, made all his deliveries, went home, and slept. The next day he awoke and had a "real difficult time walking." He reported to his supervisor that he had injured his back, but made no mention that the injury was from an accident related to his work. On that same day, he went to the emergency room. The emergency room physician reported that the claimant had "bad back pain" which had begun eight days prior to his on-the-job injury. The physician also reported that after this initial pain the claimant "[r]eturned to work"got better. Yesterday [he] coughed and got worse." No mention was made in this medical report that attributed the injury to McKenney's coughing, lifting, or twisting. Later that week, the claimant's attending physician diagnosed his condition as a herniated disk.
The employer presented the testimony of two witnesses who saw the claimant on the day of the injury. Both witnesses testified that the claimant did not exhibit any signs of injury or pain on the day he claims to have been injured. The claimant presented a letter from his treating physician which stated:
As the above-named individual was lifting a tray at work and twisted, he had a coughing attack, and had an onset of sharp pain in his back.
As a result of this injury he was totally disabled from work from 12/6/92 through February 7, 1993.
His treatment was related to the accident.
The commission held that claimant's coughing had caused his injury and that the evidence failed to prove that the coughing was the result of a risk of employment. Thus, the commission held, in effect, that the claimant had failed to prove that the lifting and turning associated with claimant's work caused his injury.
To be entitled to an award of compensation benefits, a claimant must be injured by an accident arising "out of" and "in the course" of employment. Code Sec. 65.2-101; see County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). An accident arises "out of" employment when "there is a causal connection between the claimant's injury and the conditions under which the employer requires the work to be performed." United Parcel Service v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 892 (1985) (emphasis added).
The determination of causation is a "factual determination frequently turning upon the weight and credibility accorded to the evidence." Stancil v. Ford Motor Co., 15 Va. App. 54, 57, 421 S.E.2d 872, 874 (1992). See also Code Sec. 65.2-706(A); Ross Laboratories v. Barbour, 13 Va. App. 373, 377-78, 412 S.E.2d 205, 208 (1991). "When there is credible evidence to support it, such a finding of fact is 'conclusive and binding' on this Court." Id. (quoting Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d 782, 788 (1988)). The burden of proving the causal connection is on the claimant. Marketing Profiles, Inc. v. Hill, 15 Va. App. 567, 570, 425 S.E.2d 546, 547 (1993); see also Bergman v. L W Drywall, 222 Va. 30, 32, 278 S.E.2d 801, 802 (1981).
On appeal, we view the evidence in the light most favorable to the prevailing party before the commission. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
The claimant contends that the findings of fact as to causation are clearly erroneous and are not supported by any evidence. However, upon our review of the record, we find that sufficient evidence exists to support the commission's findings.
The evidence regarding causation consisted of a report of the treating orthopedic physician. The report stated:
As the above-named individual was lifting a tray at work and twisted, he had a coughing attack, and had an onset of sharp pain in his back.
As a result of this injury he was totally disabled from work from 12/6/92 through February 7, 1993.
His treatment was related to the accident.
As the commission stated, "[t]here is no evidence that the lifting, if any, and the turning caused the claimant's injury." The report is inconclusive as to which, if any, of the three factors"coughing, lifting, or twisting" caused the claimant's injury. The report merely stated that coughing, lifting, and twisting occurred. Presenting evidence that an injury occurred is not enough to award compensation. See Code Sec. 65.2-101. The claimant must prove the element of causation. See Johnson, 237 Va. at 183, 376 S.E.2d at 74. The claimant failed to prove which, if either, of the three possible causation factors caused his herniated disk.
Injuries caused by hazards that do not come from a risk which is associated with the natural consequences of employment are noncompensable. Fetterman, 230 Va. at 259, 336 S.E.2d at 893; Johnson, 237 Va. at 183-84, 376 S.E.2d at 75; Plumb Rite Plbg. Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). The claimant stated he was suffering from a cold at the time of the injury. The record is silent, or at least fails to prove, that the claimant's cough or cold was caused by a work-related risk or had "its origin in a risk connected with the employment." Richmond Memorial Hosp. v. Crane, 222 Va. 283, 285, 278 S.E.2d 877, 878 (1981) (quoting Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938)). Because the cough was a nonwork-related risk, if, as the commission found, the cough caused the claimant's herniated disk, his injury would be noncompensable. Because the claimant did not isolate the cause or causes of his injury, it is as likely that the injury resulted solely from his nonwork-related cough, as it is that it resulted from lifting the tray and twisting. As the Supreme Court of Virginia stated: "If the evidence shows that it is just as probable that the disability resulted from a cause which is not compensable, as it is that it resulted from one which is compensable, the claimant has not sustained his burden of proof." Bergman, 222 Va. at 32, 278 S.E.2d at 802 (quoting Southall, Adm'r. v. Reams, Inc., 198 Va. 545, 548-49, 95 S.E.2d 145, 147-48 (1956).
Therefore, because the evidence is sufficient to support the commission's finding that the claimant failed to sustain his burden of proof on the issue of causation, we affirm the commission's decision.
Affirmed.