Opinion
Record No. 0843-92-1
December 15, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(William C. Walker; Taylor Walker, on brief), for appellants.
No brief for appellee.
Present: Judges Barrow, Moon and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Upon reviewing the record and opening brief, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
Jayen Tile Corporation and its insurer argue on this appeal that the commission erred in finding that Harold Lee Hilty sustained an injury by accident arising out of his employment on July 10, 1990. "Whether an injury arises out of the employment is a mixed question of law and fact and is reviewable by the appellate court." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305, 305 (1989) (citation omitted).
In order to recover, a claimant must show that he suffered an injury by accident "arising out of and in the course of his employment." Code § 65.1-7 (now Code § 65.2-101). "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). To prevail on this element, the claimant must "show that the conditions of the workplace or that some significant work related exertion caused the injury." Plumb Rite, 8 Va. App. at 484, 382 S.E.2d at 306.
Here, Hilty testified that on July 10, 1990, he injured his left knee when he carried a ninety-four pound bag of cement up a flight of stairs on a job site. He stated that when he got to the third landing, his knee gave way and the bag fell off his shoulder. He caught himself before he hit the ground.
The medical evidence reflects that prior to the July 10, 1990 incident, Hilty had been treated by Dr. Curtis V. Spear, Jr. for an injury to his left knee which occurred at work in 1988. Hilty was last seen for the 1988 injury on January 17, 1989. He had returned to work and continued to work up until November 20, 1990. Hilty denied any further problems with his left knee, after the spring of 1989, up until the incident of July 10, 1990.
After the incident on July 10, 1990, Hilty was unable to work and rested the remainder of the day in an office trailer. Thereafter, he continued to work although he wore a brace on his left knee, which Dr. Spear had prescribed following his first injury. Hilty's knee continued to bother him and he returned to Dr. Spear in November, 1990.
Dr. Spear noted in his November 19, 1990 office notes that Hilty was having severe pain in his left knee and that about five months previously he had sustained an injury. Dr. Spear noted in his November 20, 1990 office notes that Hilty had a flare-up of giving way in his left knee and that Hilty could only explain the pain by relating it to carrying supplies up a flight of stairs.
Dr. Robert S. Neff performed arthroscopic surgery on Hilty's left knee on December 28, 1990. During the surgery, Dr. Neff found that Hilty had suffered a tear of the medial meniscus. Dr. Neff opined that the tear was the result of the July, 1990 incident.
The facts in the record as recited above provide substantial credible evidence to support the commission's decision that Hilty's injury arose out of his employment. Hilty clearly testified to a significant work related exertion when his knee gave way while carrying the ninety-four pound bag of cement from the ground to the third floor of a building. Furthermore, the medical evidence provides the requisite causal connection between the July 10, 1990 incident and Hilty's subsequent knee injury and resulting disability. Since there is credible evidence in the record to support the commission's findings, they will not be disturbed on appeal.
For the reasons stated, we affirm the commission's decision.
Affirmed.