Opinion
Record No. 2437-92-2
July 20, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
R. Ferrell Newman (Thompson, Smithers, Newman Wade, on brief), for appellants.
William H. Shewmake (Coates Davenport, on brief), for appellee.
Present: Chief Judge Moon, Judges Benton and Fitzpatrick.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Tidewater Construction Corporation appeals from an award for temporary total disability in favor of Michael Vann Thornsberry. Tidewater contends that the evidence (1) did not support the finding of a compensable injury that arose out of employment, and (2) failed to prove that Thornsberry made reasonable efforts to market his residual work capacity. We affirm the commission's award.
I.
On appellate review of a decision by the commission, this Court must view the evidence in the light most favorable to the party that prevailed before the commission. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). When the evidence is so viewed, it proved that at the time of his injury Thornsberry was employed by Tidewater as a pipefitter helper. He was required to move a twenty foot carbon steel pipe and place it next to similar pipes. To move the pipe, Thornsberry crouched and knelt with his left knee and lower leg resting on pipes under him. While in that position, he used his right leg to push the twenty foot carbon steel pipe into place. Thornsberry felt a cramp in his left leg while he was crouched. When Thornsberry "started to straighten up and put some weight on there [, his] knee felt like a ball was just pushing up into [his] leg" and his left knee gave way. He yelled for assistance and his co-workers went to his aid.
Immediately after Thornsberry's injury, Tidewater's foreman took him to the safety office where Thornsberry prepared a written report of the accident. The report reflected that Thornsberry was able to push the bar without difficulty and that his knee joint gave way when he began to straighten up. In addition, Robert Buchanan, a claims adjuster for the insurer, testified that he took a recorded statement from Thornsberry. Buchanan stated that Thornsberry related that his injury had occurred when he "straightened up."
Dr. DeBlois treated Thornsberry for the injury. Dr. DeBlois's medical records state that Thornsberry was pushing a steel beam under a rack. He noted that while Thornsberry was kneeling on his left knee, Thornsberry's knee buckled causing his injury.
The deputy commissioner denied Thornsberry's claim. Finding that Thornsberry moved the pipe without trouble and that the work effort did not increase the "weight bearing down on his left knee," the deputy commissioner concluded that the evidence was insufficient to show that the work environment contributed to Thornsberry's knee injury. Relying on the doctor's report and Thornsberry's testimony that he experienced pain while he was in a crouched position, the commission reversed the deputy's decision. The commission held that "the physical position of the claimant in kneeling was the causative danger which had its origin in a risk connected with the employment, and the injury occurred as a result of that risk." The commission further found that the extent of Thornsberry's exertion when moving the beam was irrelevant as to the determination whether Thornsberry's injury arose out of his employment.
II.
"An injury arises out of employment when the injury is the result of a 'hazard to which [the claimant] would not have been equally exposed apart from the conditions 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. Gayder, 9 Va. App. 60, 65, 383 S.E.2d 755, 759 (1989)). The test is whether "there is a causal connection between the claimant's injury and the conditions under which the employer requires the work to be performed." Grove v. Allied Signal, Inc., 15 Va. App. 17, 19, 421 S.E.2d 32, 34 (1992). Thus, an injury is compensable if the "'causative danger . . . had its origin in a risk connected with employment, and . . . flowed from that source as a rational consequence.'" Id. at 22, 421 S.E.2d at 35 (quoting R T Investments Ltd. v. Johns, 228 Va. 249, 253, 321 S.E.2d 287, 289 (1984)).
The commission accepted Thornsberry's testimony concerning the work activity in which he was engaged. The commission also made specific reference to Thornsberry's testimony that he felt a cramp in his left knee while he was in the crouched position moving the pipe. Although a mere "statement of the evidence does not satisfy the requirements of a statement of fact,"Goodyear Tire Rubber Co. v. Pierce, 5 Va. App. 374, 385, 363 S.E.2d 433, 439 (1987), it is established that "[w]here reasonable inferences may be drawn from the evidence in support of the commission's factual findings, they will not be disturbed by this Court on appeal." Hawks v. Henrico County School Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).
It is reasonable to infer from the commission's reference to Thornsberry's testimony and the report of Dr. DeBlois that the commission was making a finding that the work activity was the danger that caused the injury. That finding is supported by credible evidence. The record contains evidence that Thornsberry experienced the onset of injury while in the crouched position performing his work activity. Moreover, the commission correctly concluded that when the work activity was a risk connected with the employment and the injury occurred as a result of the risk, the degree of exertion employed in the work activity is irrelevant. See Grove, 15 Va. App. at 21-22, 421 S.E.2d at 35.
III.
Tidewater raises for the first time on appeal the question whether Thornsberry failed to market his residual work capacity. The record does not show that this issue was raised at any time during either hearing before the commission. Indeed, at the beginning of the evidentiary hearing, the deputy commissioner stated the issues and the defense raised — "that this injury did not arise out of the claimant's employment." No effort was made then or at any later time to assert as an issue any question regarding whether Thornsberry failed to market his residual work capacity. Accordingly, that issue may not be raised for the first time on appeal. Rule 5A:18; Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 192, 355 S.E.2d 347, 349 (1987).
Affirmed.