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FARNIA v. PRIME RECEIVABLES, et al.



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FARNIA

v.

PRIME RECEIVABLES, et al.


NOVEMBER 7, 2000

Record No. 0956-00-4

Present: Judges Willis, Frank and Clements

FARNAZ FARNIA

v.

PRIME RECEIVABLES, LLC AND

FEDERAL INSURANCE COMPANY

FROM THE VIRGINIA WORKERS’ COMPENSATION
COMMISSION

(Farnaz Farnia, pro se, on
brief).

(William T. Kennard; Mell, Brownell &
Baker, on brief), for appellees.


MEMORANDUM OPINION[1] PER
CURIAM

Farnaz Farnia (claimant) contends that the
Workers’ Compensation Commission erred in finding that she failed
to prove she sustained an injury by accident arising out of her
employment on July 31, 1998, or in the alternative, a compensable
occupational disease involving her left wrist. 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. See Rule 5A:27.

Injury by Accident

On appeal, we view the evidence in the light
most favorable to the prevailing party below. See R.G.
Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212,
390 S.E.2d 788, 788 (1990). To recover benefits, claimant must
establish that she suffered an "injury by accident arising
out of and in the course of [her] employment," Code
? 65.2-101, and "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 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). "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
, 8 Va. App. at 483, 382 S.E.2d at 305. However, unless
we conclude that claimant proved, as a matter of law, that her
employment caused her injury, the commission’s finding is binding
and conclusive upon us. See Tomko v. Michael’s
Plastering Co.
, 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

Claimant’s job required that she sit at a
computer terminal and constantly answer a telephone. In
performing her job, she grabbed the telephone receiver with her
left hand and typed on the computer with her right hand.

On July 31, 1998, she grabbed her telephone
receiver and her wrist twisted backwards. She stated that her
telephone had been moved on her desk from its normal location.
Claimant admitted that she did not know what caused her wrist to
twist backwards. She described nothing unusual about the
telephone handset or cord, and she confirmed that the telephone
did not get caught on anything. She did not attribute her injury
to the weight of the telephone nor could she determine what
caused her injury. After July 31, 1998, the constant use of her
left hand to answer the telephone made her symptoms worse.

Claimant admitted that in a conversation with
employer’s insurance adjuster, claimant denied that her injury
was caused by a specific event, but rather contended that it was
due to several events.

On November 3, 1998, Dr. Carlos Gonzales
examined claimant. Dr. Gonzales recorded a history of claimant
experiencing left wrist pain while grabbing a telephone at work
three months earlier. Dr. Gonzales also noted that claimant
developed complaints of left neck, arm, and upper back pain after
she helped to lift items when employer moved its business.

Dr. Stephen Pournaras, a hand specialist,
examined claimant on November 11, 1998. Dr. Pournaras noted that
claimant first began having left hand symptoms in July 1998 while
at work "when she was answering a lot more telephone
calls." Claimant told Dr. Pournaras that her wrist was being
hyperextended on a regular basis and that she developed left neck
pain after she started holding her telephone with her neck
between her left shoulder and her chin. Dr. Pournaras diagnosed
degenerative arthritis of the cervical spine and tendinitis of
the left wrist. Dr. Pournaras indicated that he was uncertain as
to whether claimant’s problems were related to her work.

On November 18, 1998, Dr. Lisa White-Hudgens
examined claimant. Dr. White-Hudgens noted that claimant suffered
from constant moderate left-sided neck and upper back pain and
intermittent left-sided wrist and arm pain. Dr. White-Hudgens
recorded a history of wrist pain beginning in July 1998 after
claimant answered telephones at work for an extended period of
time. Claimant told Dr. White-Hudgens that she exacerbated her
symptoms when she helped move items at work in September,
October, and November, 1998. Dr. White-Hudgens diagnosed cervical
and thoracic myofascial pain syndrome secondary to cumulative
trauma disorder most likely secondary to occupational duties of
answering telephones.

On January 25, 1999, Dr. White-Hudgens provided
a revised medical report upon claimant’s request. In that report,
Dr. White-Hudgens indicated that claimant had brought to her
attention that an inaccuracy existed in Dr. White-Hudgens’s
initial evaluation report. Claimant told Dr. White-Hudgens that
"she actually twisted her wrist on July 31, 1998 while
answering high volume telephones and then developed wrist pain
with radiation into the arm." As a result, Dr. White-Hudgens
changed her diagnosis to "cervical and thoracic segmental
dysfunction and related myofascial pain syndrome secondary to
trauma secondary to occupational injury."

In ruling that claimant failed to prove that
she sustained an injury by accident arising out of her employment
on July 31, 1998, the commission found as follows:

Although [claimant] contends that her telephone
had been moved to a different location on her desk, the evidence
fails to show that [claimant's] injury was caused by significant
exertion, or that her movements were awkward or strenuous. The
claimant denied that the weight of the telephone receiver caused
her injury. In fact, the claimant candidly acknowledged that she
could not determine what caused her wrist injury. The simple act
of answering the telephone under these circumstances does not
constitute an actual risk of the employment
. . . .

The evidence established that claimant did not
engage in any significant exertion, that her simple act of
picking up the telephone receiver did not involve any significant
exertion or awkward position, and that no condition or hazard
peculiar to her workplace caused her injury, aside from the usual
act of answering the telephone. Therefore, we hold that claimant
failed to prove as a matter of law that her wrist injury arose
out of her employment.

Occupational Disease

Dr. White-Hudgens initially opined that
claimant’s condition was caused by cumulative trauma, which is
not compensable under the Act as an occupational disease. See
Stenrich Group v. Jemmott, 251 Va. 186, 199, 467 S.E.2d
795, 802 (1996). Dr. White-Hudgens later changed her opinion as a
result of a telephone conversation with claimant to reflect that
claimant’s condition was caused by traumatic injury. However, for
the reasons stated above, claimant failed to prove that she
sustained an injury by accident arising out of her employment.
Furthermore, Dr. Pournaras, who diagnosed claimant as suffering
from degenerative arthritis and tendinitis, was not able to
causally relate these conditions to claimant’s work. For an
occupational disease to be compensable under the Act, claimant
must prove "[a] direct causal connection between the
conditions under which work is performed and the occupational
disease." Code ? 65.2-400(B)(1). Accordingly, the
commission did not err in finding that claimant failed to prove a
compensable occupational disease.

For these reasons, we affirm the commission’s
decision.

Affirmed.

FOOTNOTES:

[1] Pursuant to Code ? 17.1-413, this opinion is not
designated for publication.

 

 

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