Opinion
Record No. 0957-92-4
February 23, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Charles F. Midkiff (James G. Muncie; Midkiff Hiner, P.C., on briefs), for appellants.
Harvey J. Volzer (Kilcarr Volzer, on brief), for appellees.
Present: Chief Judge Koontz, Judges Barrow and Moon
Argued at Alexandria, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
In this appeal from the Workers' Compensation Commission, we address whether the evidence sufficiently supports the commission's finding that an employee's death arose out of and in the course of his employment. We conclude that, even though the evidence did not exclude all possible non-work related causes, the evidence was sufficient to support the commission's finding that the death resulted from employment related conditions.
An employee, or in this case his representative, must show a causal connection between the conditions under which the employee's work was required to be performed and the resulting injury. Brown v. Reed, 209 Va. 562, 564, 165 S.E.2d 394, 396-97 (1969). An employer is not responsible for "all accidental injuries which might happen to the employee while in the course of the employment, but only for such injuries arising from or growing out of the risks peculiar to the nature of the work, in the scope of the workman's employment or incidental to such employment, and accidents to which the employee is exposed in a special degree by reason of such employment." Richmond Memorial Hosp. v. Crane, 222 Va. 283, 286, 278 S.E.2d 877, 879 (1981). In this case, the employee's representative was required to prove that the conditions under which the employee was working caused his injury and eventual death.
The employee, a repairman of grain storage silos, was, at the time of his accident, working in a silo. Silos are designed to protect livestock feed by limiting the amount of oxygen inside. The employer assumes an oxygen-deficient atmosphere in these structures and requires its employees who enter a silo to use a respirator and to remain in the silo no longer than fifteen minutes at a time.
The employee entered the silo wearing his respirator. He was watched from the outside by a co-worker. The work proceeded normally at first, but after approximately fifteen minutes, the co-worker could no longer detect movement by the employee. He attempted to contact the employee by rapping on the unloader, but was unable to elicit a response. He notified the supervisor on the work site, who found the employee slumped over and motionless in the center of the structure. The supervisor attached a length of pipe to a centrifugal blower and blew fresh air into the structure. When this did not revive the employee, the co-worker entered the structure and retrieved him.
When retrieved, the employee still had the face mask respirator on. He had "marked swelling of the face and cyanosis (blue coloring)." Efforts were made to revive him, and after he vomited a small amount of green substance, he resumed breathing with short breaths and was making a "gurgling" sound. He was taken to a hospital, where he was treated for progressive deterioration and organ failure until he died eight days later.
The attending physician's diagnosis was "[r]espiratory arrest . . . [m]ultiple organ system failure . . . felt to be secondary to probable heat stroke or possible toxic inhalation." An autopsy report noted that "acute silo exposure presenting as sudden collapse and asphyxia seems to be an obvious possibility" and that a "cardiac arrhythmia in the setting of 80% occlusion of LAD, mild cardiomegaly is another possibility, but [that] the symptoms of facial cyanosis and swelling and return to spontaneous breathing and improvement in cyanosis seems like a respiratory event rather than cardiac."
The employee was a thirty-four year old man with no known history of medical problems. He was described by his family as being in good health before the accident. He had been in the silo approximately fifteen minutes where estimates of temperature ranged from 100 to 150 degrees.
This evidence supports the commission's findings that "the employee was working for a limited and precisely defined period in an oxygen-deprived atmosphere," "he was isolated from his external source of oxygen for a brief period of minutes," "no personal medical failure such as heart attack brought on the acute oxygen deprivation," and, therefore, he "died of an injury by accident which arose out of and in the course of the employment." These findings of fact, being supported by credible evidence, are binding on this Court. Code § 65.2-706;Goodyear Tire Rubber Co. v. Watson, 219 Va. 830, 833, 252 S.E.2d 310, 312 (1979); Jules Hairstylists, Inc. v. Galanes, 1 Va. App. 64, 68, 334 S.E.2d 592, 595 (1985). Thus, the award of the commission must be affirmed.
Affirmed.