Opinion
Record No. 1012-92-1
June 15, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
David L. Horne (Philip J. Infantino; Pender Coward, P.C., on briefs), for appellant.
P. Dawn Bishop (William Orr Smith Associates, on brief), for appellees.
Present: Judges Baker, Barrow and Benton.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
This appeal is from a decision of the Workers' Compensation Commission finding that the employee's accident did not arise out of his employment. We hold that the commission was not plainly wrong in concluding that the employee's herniated disc did not arise from his employment where it occurred when he stood up from a bent position holding a "mud pan" in his left hand and a finishing knife in his right hand. See County of Chesterfield v. Johnson, 237 Va. 180, 183-84, 376 S.E.2d 73, 74-75 (1989); Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). Therefore, the commission's decision is affirmed.
Affirmed.
The uncontradicted evidence proved that Herman Thomas Isaacs, who was employed as a drywall finisher, was injured while finishing the inside corner of newly hung drywall. At the time of his injury, he was holding in one hand a pan of joint compound and holding in his other hand a knife, which he was using to apply joint compound to conceal corners, joints, and nail holes. He was rising from a bending position and applying compound "over the wall when [he] felt the pain in his lower back." The medical evidence established that Isaacs suffered a herniated disc and that the injury was causally related to the work activity.
Relying upon Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 482, 382 S.E.2d 305 (1989), the commission stated "that the employee did not describe significant work related exertion, twisting injury or other incident which qualifies as an injury by accident." The commission's ruling is plainly wrong and contrary to the law. By focusing only on the lack of "significant work-related exertion" the commission has misreadBarbour. In Barbour, a panel of this Court stated that an employee must "show that the conditions of the workplaceor that some significant work related exertion caused the injury." 8 Va. App. at 484, 382 S.E.2d at 306 (emphasis added). Both the commission and the majority fail to recognize that the evidence proved that the condition of the workplace caused the injury.
In upholding the commission, the majority also relies uponCounty of Chesterfield v. Johnson, 237 Va. 180, 376 S.E.2d 73 (1989). Johnson is irrelevant to the decision of this case. InJohnson, an employee's knee gave way when the employee turned on a stairway. 237 Va. at 182, 376 S.E.2d at 74. In denying recovery, the Supreme Court explained that "[t]he causative danger must be peculiar to the work, incidental to the character of the business, and not independent of the master-servant relationship." Id. at 183-84, 376 S.E.2d at 75. The Supreme Court did not state that in order for an employee to recover compensation the employee must prove that conditions of the workplace involve a significant exertion. Indeed, this Court in First Federal Savings Loan Ass'n v. Gryder, 9 Va. App. 60, 65, 383 S.E.2d 755, 759 (1989), has stated that "contortions of the body" to perform a job task is a hazard of the workplace.See also Grove v. Allied Signal, Inc., 15 Va. App. 17, 421 S.E.2d 32 (1989).
The Act "was adopted for the benefit of employees," Byrd v. Stonega Coke Coal Co., 182 Va. 212, 221, 28 S.E.2d 725, 729 (1943), and was intended to be "highly remedial and . . . liberally construed in favor of [employees]." Barker v. Appalachian Power Co., 209 Va. 162, 166, 163 S.E.2d 311, 314 (1968).
"To constitute injury by accident it is not necessary that there should be an extraordinary occurrence in or about the work engaged in." The evidence is sufficient to establish an injury by accident "even though the degree of exertion is usual and ordinary and 'the workman had some predisposing physical weakness.'"
Kemp v. Tidewater Kiewit, 7 Va. App. 360, 363, 373 S.E.2d 725, 726 (1988) (citations omitted).
This case falls precisely within the principle that an injury by accident "arises out of the employment [when] there is a causal connection between the [employee's] injury and the conditions under which the employer requires the work to be performed." R T Investments, Ltd. v. Johns, 228 Va. 249, 252, 321 S.E.2d 287, 289 (1984). Isaacs' evidence proved that the "'causative danger . . . had its origin in a risk connected with the employment and . . . flowed from that source as a rational consequence." Id. at 253, 321 S.E.2d 289 (quotingBradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938)). The causative danger proved was the need to bend and rise as Isaacs applied joint compound onto the drywall. While bending and rising to apply the joint compound, Isaacs was engaged in an activity for the benefit of his employer. It was precisely his work environment that caused him to injure himself.
For these reasons, I would reverse the commission's decision.