Opinion
Record No. 0324-94-2
Decided: August 16, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(David W. Drash; Denton Drash, on briefs), for appellants.
(B. Mayes Marks, Jr.; Marks Harrison, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
John Randolph Medical Center and its insurer (collectively referred to hereinafter as "employer") contend that the Workers' Compensation Commission erred in finding that (1) Gayle Bradley sustained an injury by accident arising out of and in the course of her employment on June 2, 1992, and (2) her herniated disc and resultant disability were causally related to the June 2, 1992 incident.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
"An injury by accident requires an 'identifiable incident, or sudden precipitating event . . . bounded with rigid temporal precision [resulting in a] sudden mechanical or structural change in the body.' " Richard E. Brown, Inc. v. Caporaletti, 12 Va. App. 242, 243, 402 S.E.2d 709, 710 (1991) (citing Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989)). "An injury need not occur within a specific number of seconds or minutes to be 'bounded with rigid temporal precision,' but instead, must occur within a 'reasonably definite time.' " Caporaletti, 12 Va. App. at 243, 402 S.E.2d at 710 (citing Morris, 238 Va. at 589, 385 S.E.2d at 864).
In Caporaletti, we held that the claimant sustained an injury by accident arising out of his employment where he had lowered a 100 pound furnace, and then leaned over it for four to five minutes, cutting and fitting it into place, before he felt pain upon attempting to stand up. Id. at 245, 402 S.E.2d at 711. Similarly, in this case, the event which precipitated Bradley's pain and injury was the lifting and carrying of two oxygen tanks weighing approximately fifteen to twenty pounds each, and the replacement of the oxygen tanks on an infant resuscitator cart, performed in a squatting position, in a confined space, over a four to five minute period of time. This period of time is reasonably definite. Moreover, the identifiable incident of straightening up after working in a squatting position resulted in Bradley sustaining sudden acute lower back pain. The medical evidence established that Bradley's injury, a herniated disc, represents a sudden structural change. Accordingly, we cannot say that the commission erred in finding that Bradley sustained a compensable injury by accident.
In order to establish that an injury arose out of the employment, the injury must be shown to have been caused by some significant work related exertion or conditions peculiar to the claimant's workplace. Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). The danger to which Bradley was exposed was clearly peculiar to her work as an operating room nurse. Bradley's lifting of the oxygen tanks, in addition to their replacement on the cart, in a confined space, performed in an awkward squatting position over a four to five minute period of time, involved risks which were encountered solely due to the nature of her job. The lifting and maneuvering of the oxygen bottles constituted a risk of Bradley's employment sufficient to prove that her back injury arose out of her employment. See Caporaletti, 12 Va. App. at 244-45, 402 S.E.2d at 710-11.
Lastly, Dr. Benjamin Allen's June 29, 1992 report and subsequent records provide credible evidence to support the commission's finding that the June 2, 1992 incident caused Bradley's back injury and resulting disability.
The commission did not abuse its discretion in refusing to leave the record open to allow employer to take Dr. Allen's deposition. The March 1993 MRI provided no new findings according to Dr. Allen's subsequent office note, other than some scarring which was to be expected following the surgery the year before. Employer did not appeal the deputy commissioner's finding concerning disability to the full commission. Therefore, we will not address the issue of disability on appeal.
We find that employer had reasonable grounds for appeal. Therefore, Bradley's request for an award of costs, including attorney's fees, is denied. For the reasons stated, we affirm the commission's decision.
Affirmed.