Opinion
Record No. 1065-92-2
December 22, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Margaret McLeod Cain, on briefs), for appellant.
(Gregory P. Cochran; Caskie Frost, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
Kenneth J. Taylor contends that the commission erred in finding that he failed to establish that he sustained an injury by accident arising out of and in the course of his employment.
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). Unless we can say, as a matter of law, that Taylor'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).
"In order to recover on a worker's compensation claim, a claimant must prove: (1) an injury by accident, (2) arising out of and (3) in the course of his employment." Kane Plumbing, Inc. v. Small, 7 Va. App. 132, 135, 371 S.E.2d 828, 830 (1988) (citing Code § 65.1-7). "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, Taylor must "show that the conditions of the workplace or some significant work related exertion caused the injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989).
The evidence indicates that Taylor was working as a sawer on April 29, 1991, when he was required to cut twenty-foot boards into appropriate lengths. Taylor testified that he turned to pick up one of the boards, bent slightly, lifted the board, and then "got a sharp pain [which] bent [him] over." Taylor later testified on cross examination that he told his doctor that he "turned to the left to pick up a board and I got a sharp pain in my back." He acknowledged that he essentially gave the same history to his physical therapist.
Flora J. Woolfolk, Taylor's physical therapist, testified that when she first saw Taylor on May 9, 1991, she took a history from him as to how his injury had occurred. Taylor told Woolfolk that, while at work on April 29, 1991, he turned to the left with a slight bend, and had a sharp pain immediately. Woolfolk did not recall that Taylor mentioned anything about lifting a board.
Arthur Wars, employed as a catcher for Better Living Components, Inc., was working with Taylor on April 29, 1991. Wars testified that Taylor's only words to him were "I just hurt my back."
Paul Brown, employed as a truss sawer for Better Living Components, testified that Taylor came to him on April 29, 1991 and complained that when he turned to pick up a board he had hurt his back. Brown testified that Taylor said that he had not picked up a board, but that he had just turned to pick one up, at the time he felt the pain.
Eddie Lee Hammers, II, employed as an engineer for Better Living Components, was working in the office on April 29, 1991. He testified that, on that day, Taylor came into the office and complained that he had injured his back. Taylor said nothing about lifting a board.
Lloyd Walker, Vice president and Manager of Better Living Components, testified that Taylor called him the morning after his injury, and stated that, he had "pulled a muscle using a web saw when he turned to reach for a two by four to cut." Walker memorialized Taylor's statements on a Supervisor's Investigation Report.
In the course of his investigation of Taylor's claim for Better Living Components, Wayne Carlson, claims representative for Consolidated Risk Management, interviewed Taylor on May 23, 1991. Carlson, testifying from his notes, stated that Taylor told him that, at the time he was injured, he turned to the left to reach to pick up a board. Carlson testified that he specifically questioned Taylor as to whether he had a board in his hand at the time of his injury, and Taylor responded in the negative.
The medical evidence reflects that Taylor told Dr. Josie Kinkade that his back pain began as he was reaching for a piece of lumber at work. In a letter dated June 17, 1991, from Dr. Kinkade to Carlson, Dr. Kinkade stated that Taylor's job, in the three days prior to April 29, 1991, had entailed lifting unusually long boards. Dr. Kinkade stated that Taylor's pain began as an aching while he was reaching for a piece of lumber. In a patient questionnaire form from Scandia Centrum of Rehab Medicine, it is reflected that Taylor's pain began when "I went to turn to pick up a piece of lumber and got a sharp pain that bent me over."
Based on this evidence, the commission found that Taylor failed to establish an injury by accident arising out of and in the course of his employment. The testimony of Woolfolk, Wars, Brown, Hammers, Walker and Carlson, if believed, supports the finding that Taylor did not sustain an injury by accident arising out of his employment. Turning to reach for an object,absent any evidence that the conditions of the workplace required an awkward movement, position or exertion, is not sufficient to meet the "arising out of" requirement as set out in Plumb Rite. The commission chose to accept the testimony of these witnesses over the claimant. Such a choice was within the fact finder's exclusive purview. Goodyear Tire and Rubber v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).
Furthermore, the medical records do not provide evidence sufficient to show an injury by accident arising out of and in the course of Taylor's employment. Dr. Kinkade's notes corroborate the testimony of the various witnesses, rather than the testimony of Taylor.
Based on the foregoing, we cannot say as a matter of law that Taylor's evidence was sufficient to sustain his burden of proof.
For the reasons stated, we affirm the commission's decision.
Affirmed.