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SOUTHERN EXPRESS, et al. v. GREEN


SOUTHERN EXPRESS, et al.

v.

GREEN


January 8, 1999
Record No. 980453

SOUTHERN EXPRESS, ET AL.

v.

CLARA LOUISE GREEN

FROM THE COURT OF APPEALS OF VIRGINIA
Present: All the Justices
OPINION BY JUSTICE CYNTHIA D. KINSER


In this appeal, we decide whether chilblains
that the claimant suffered as a result of being exposed to cold
temperature in a walk-in cooler during a four-hour period
constitute an "injury by accident" under the Virginia
Workers’ Compensation Act (the Act). Because the claimant
proved that she sustained the injury at a particular time and
place and upon a particular occasion, that it was caused by an
identifiable incident, and that it resulted in a structural
change in her body, we will affirm the judgment of the Court of
Appeals that the injury is compensable under the Act.

I.

Clara Louise Green was an employee at a
Southern Express convenience store. When Green arrived at work on
June 22, 1996, John Patrick Vaillant, the store manager, asked a
co-worker to take Green inside the store’s walk-in cooler.
[1] He instructed the co-worker to show Green what tasks
needed to be completed in the cooler and how to perform those
tasks. Green had never before worked in the cooler. The training
session in the cooler lasted approximately 30 to 45 minutes.

Later, Vaillant assigned Green to work in the
cooler stocking "beer" and "cokes." When
Green went back inside the cooler, she was wearing a
short-sleeved shirt and an apron since she had not anticipated
that she would be working in the cooler. When Green asked
Vaillant for a pair of gloves, he authorized Green to use a pair
out of the store’s inventory. However, Green chose not to do
so.

Green testified that, in addition to the time
spent in the cooler during the training session, she worked in
the cooler stocking drinks from 2:00 o’clock a.m. until 6:00
o’clock a.m. without taking a single break. She further
stated that, at some point during this period of time, she tried
to leave the cooler but was unable to open the door. She
attempted to get someone’s attention by knocking on the
window of the cooler, but no one responded.

Vaillant’s testimony conflicted with
Green’s on this last point. He was present at the Southern
Express store during Green’s shift of work on the morning in
question and recalled Green coming out of the cooler to take at
least one break and possibly more. He further testified that the
cooler door had no locking device and that it could be opened
from both inside and outside at all times.

Green stated that, after finishing her work in
the cooler, she was "cold and shivering" with her hands
being "all balled up." She testified that her face also
had sores on it. Vaillant, however, testified that Green did not
mention any injury to him when she left work at the end of her
shift around 6:00 a.m. Green did not return to work at the
Southern Express store after she left that morning.
[2]

The record reflects that Green received
treatment from several doctors for her injury. On the morning of
June 23, 1996, Green saw Dr. Gary McGowan at Henrico
Doctors’ Hospital for "an evaluation of pain in her
hands, left forearm and left elbow" in connection with an
injury sustained while "lift[ing] beer cases in the cold
freezer for about 3-4 hours." Dr. McGowan diagnosed a left
hand/forearm strain and advised Green to wear gloves if she were
exposed to cold temperatures at work again. Two days later, Dr.
Lerla Joseph of the Charles City Medical Group, Inc., examined
Green and recommended that Green limit her lifting, bending, or
cold storage work.

On July 1, 1996, Dr. Marc Jay Pinsky treated
Green. At that time, Green complained of "pain, burning, and
stiffness in [her] hands and feet" as a result of having
worked several hours in a cooler without "proper protection
or a break for warm-up." Dr. Pinsky diagnosed
"chilbains [sic] [secondary] to longterm exposure to cold
temperature."
[3] He advised Green to avoid further exposure to the cold.

Next, on July 9, 1996, Green saw Dr. E.M.
Hudgins of the Dermatology Associates of Virginia, P.C. In a
letter to Dr. Pinsky, Dr. Hudgins opined that Green "has had
a mold cold injury consistent with chilblains."

Green filed a claim for workers’
compensation benefits on July 10, 1996. A deputy commissioner of
the Virginia Workers’ Compensation Commission (Commission)
denied Green’s claim on the basis that "there was no
sudden precipitating event, no accident which arose out of and in
the course of employment." Instead, the deputy commissioner
found that her injury resulted from "continuous exposure
over a period of time." Upon Green’s request for
review, the Commission reversed the deputy commissioner’s
decision and awarded benefits to Green. Southern Express then
appealed the Commission’s decision to the Court of Appeals
of Virginia. A panel of the Court of Appeals affirmed the award
of benefits on the basis that "a condition resulting from
exposure to extreme temperatures may still constitute an
‘injury by accident.’" Southern Express v.
Green
, 26 Va. App. 439, 445, 495 S.E.2d 500, 503 (1998). We
awarded Southern Express this appeal.

II.

When Green filed her claim for workers’
compensation benefits, she alleged an "injury by
accident" under Code Sect. 65.2-101. This section
states that "‘[i]njury’ means only injury by
accident arising out of and in the course of the
employment . . . ."
[4] The Act does not, however,
specifically define the term "injury by accident."
Consequently, the phrase has been the subject of judicial
interpretation. See Virginia Elec. & Power Co. v. Cogbill,
223 Va. 354, 288 S.E.2d 485 (1982), and Badische Corp. v.
Starks
, 221 Va. 910, 275 S.E.2d 605 (1981), for a survey of
cases discussing the "injury by accident" requirement.

"It is apparent from the language employed
by the drafters of the Act that it was originally intended to
provide coverage for the most frequently recurring kinds of
industrial accidents, e.g., injuries immediately resulting
from hazards of the workplace such as blows from falling objects
. . . [or] falls from
ladders . . . ." Morris v. Morris,
238 Va. 578, 585, 385 S.E.2d 858, 862 (1989). The more difficult
issue through the years has been "whether an injury
resulting from repetitive trauma, continuing mental or physical
stress, or other cumulative events, amounts to an ‘injury by
accident’ within the meaning of [the
Act] . . . ." Id. at 581, 385
S.E.2d at 859-60.

In Morris, a case relied upon by
Southern Express, the Court addressed this issue and reiterated
the parameters of an "injury by accident." We
considered the claims of three separate workers, two of whom had
sustained myocardial infarctions and a third worker who had a
ruptured cervical disc. One of the workers who had a myocardial
infarction had been lifting cartons of fiberglass, weighing
approximately 50 pounds each, for about 45 minutes. The second
employee with the same type of injury had been installing ceiling
panels weighing 30 to 35 pounds each over a period of
approximately two and one-half hours. The worker with the
ruptured disc injury had been unloading steel doors for
approximately an hour and a half. His injury was not diagnosed
until several weeks later, but the two employees with myocardial
infarctions were each taken to hospitals for treatment on the day
of the injury.

We vacated all three awards of compensation on
the basis that the claimants had not carried the burden of
establishing an "injury by accident." Although each
respective injury "made its appearance suddenly
‘at a particular time and upon a particular
occasion,’" we concluded that each claimant had failed
to prove "that the cause of his injury was an identifiable
incident or sudden precipitating event
and that it resulted
in an obvious sudden mechanical or structural change in the
body
." Morris, 238 Va. at 589, 385 S.E.2d at
864-65 (quoting The Lane Co., Inc. v. Saunders, 229 Va.
196, 199, 326 S.E.2d 702, 703 (1985) (emphasis added)). We
specifically held "that injuries resulting from repetitive
trauma, continuing mental or physical stress, or other cumulative
events, as well as injuries sustained at an unknown time, are not
‘injuries by accident.’" Morris, 238 Va. at
589, 385 S.E.2d at 865.

In our analysis of the term "injury by
accident" in Morris, we relied upon language from a
law review article that we had previously quoted with approval in
Aistrop v. Blue Diamond Coal Co., Inc., 181 Va. 287, 293,
24 S.E.2d 546, 548 (1943) (citations omitted):

‘The injury, to be regarded as
"by accident," must be received *** at a particular
time and in a particular place and by a particular accident.
And the accident must be something the date of which can be
fixed. It is not enough that the injury shall make its
appearance suddenly at a particular time and upon a
particular occasion.’ In other words, the
‘incident,’ the act done or condition encountered,
‘must be shown to have occurred at some reasonably
definite time’.

On the other hand, as the author says,
‘*** injury of gradual growth, *** not the result of
some particular piece of work done or condition encountered
on a definite occasion, but caused by the cumulative effect
of many acts done or many exposures to conditions prevalent
in the work, no one of which can be identified as the cause
of the harm, is definitely excluded from compensation.’

(quoting Francis H. Bohlen, A Problem in the
Drafting of Workmen’s Compensation Acts, 25 Harv. L. Rev.
328, 342-43 (1912)).

Thus, Morris and Aistrop teach
that, to establish an "injury by accident," a claimant
must prove (1) that the injury appeared suddenly at a particular
time and place and upon a particular occasion, (2) that it was
caused by an identifiable incident or sudden precipitating event,
and (3) that it resulted in an obvious mechanical or structural
change in the human body. Accord Cogbill, 223 Va.
354, 288 S.E.2d 485; Starks, 221 Va. 910, 275 S.E.2d 605.
Measuring these elements of proof against the facts as recited in
Morris, it is evident that those claimants failed to prove
that an identifiable incident or event at work caused
their injuries. The claimants asserted that the cause of their
respective injuries was the particular piece of work that they
were performing on the days when the injuries first manifested
themselves, but evidence of causation, especially medical
evidence, was noticeably absent.

The question of causation was also the critical
issue in Byrd v. Stonega Coke & Coal Co., 182 Va. 212,
28 S.E.2d 725 (1944), a case relied upon by the Court of Appeals.
Contrary to Southern Express’s assertion that the Court of
Appeals used the decision in Byrd to carve out an
exception to the principles enunciated in Morris for all
exposure cases, we find no such deviation from Morris. Nor
do we perceive any tension between those two decisions as
asserted by Southern Express.

In Byrd, the employee collapsed suddenly
and died after having pulled coke out of a hot oven for more than
ten hours. The employer conceded that the employee was exposed to
heat of a much higher degree than that to which he otherwise
would have been exposed, but denied that there was a causal
connection between the hazards of the job and the employee’s
death. The record contained medical evidence from five doctors,
which we summarized by stating that all the doctors agreed that
acute heart failure was the immediate cause of the
employee’s death and that exposure to abnormal heat may
affect the heart. However, we acknowledged that the employee had
only some of the usual symptoms of heat stroke and that two of
the doctors did not state whether the excessive heat contributed
to the employee’s death. We concluded that the
employee’s death "was the result of the conditions
under which [he] was required to perform the duties of his
employment." Byrd, 182 Va. at 221, 28 S.E.2d at 729.
We also stated that "if . . . injury or death
results from, or is hastened by, conditions of employment
exposing the employee to hazards to a degree beyond that of the
public at large, the injury or death is construed to be
accidental within the meaning of the [Act]." Id. at
216, 28 S.E.2d at 727.

The Court in Byrd did not discuss
whether injuries caused by repetitive trauma, continuing mental
or physical stress, or other such cumulative occurrences satisfy
the "injury by accident" requirement. Such an inquiry
was not the focus of the parties or the Court for obvious
reasons. The employee’s death occurred at a particular time
and place and resulted in an obvious change in his body.
Moreover, the fact that the identifiable event, the exposure to
extreme heat, was not disputed is especially significant for the
present case. The only contested issue was whether the exposure
to the heat caused the employee’s collapse and death.
Although the Court in Byrd did not specifically identify
the elements of proof later enunciated in Morris, the
evidence, nevertheless, satisfied those elements.
[5]

Turning now to the facts of the present case
and using the elements of proof outlined in Morris, we
find that Green established an "injury by accident."
Green’s chilblains first appeared during the time that she
spent in the cooler, thus at a particular time and place and upon
a particular occasion, and resulted in a structural change in her
body. She testified that her face had sores on it and her hands
were "all balled up" after she finished her work in the
cooler. In fact, she sought medical treatment on the morning of
June 23, 1996. At least two of the doctors who treated Green
diagnosed chilblains resulting from Green’s exposure to cold
temperature. Southern Express does not contest that Green
suffered chilblains and that the cause of the chilblains was
Green’s exposure to cold temperature during her work in the
cooler.

The only remaining question, the one that
Southern Express does challenge, is whether exposure to cold
temperature in a cooler for approximately four hours during a
shift of work constitutes an identifiable event or incident.
Citing Morris, Southern Express argues that such a
four-hour exposure to the cold is not an event "bounded by
rigid temporal precision." 238 Va. at 589, 385 S.E.2d at
864. Rather, Southern Express asserts that Green’s injury
resulted from repetitive trauma, continuing physical stress, or a
cumulative event. We do not agree.

The evidence in this case shows that
Green’s chilblains were not an "injury of gradual
growth . . . caused by the cumulative effect of many
acts done or many exposures
to conditions prevalent in the
work, no one of which can be identified as the cause of the
harm . . . ." Aistrop, 181 Va. at
293, 24 S.E.2d at 548. (Emphasis added). Instead, the chilblains
were "the result of some particular piece of work done or
condition encountered on a definite
occasion . . . ." Id. In other
words, Green’s chilblains resulted from a single exposure to
cold temperature on a definite occasion during the performance of
a specific piece of work, i.e., an "identifiable
incident." Morris, 238 Va. at 589, 385 S.E.2d at 865.
It was not caused by repeated exposures over a period of months
or years.

For these reasons, we will affirm the judgment
of the Court of Appeals.

Affirmed.

 

 

 

FOOTNOTES:

[1] The cooler’s design included a
series of glass doors on the front, shelving units behind the
glass doors, and a walk-in room behind the doors and shelves,
which was also cold.

[2] The record contains conflicting evidence regarding
Green’s period of employment at the Southern Express store.
Green claims that she began working there in late May 1996 and
worked until June 9, 1996. Vaillant, however, testified that
Green’s period of employment ran from June 17 through 22,
1996. In her claim for workers’ compensation benefits, Green
originally listed her date of injury as June 22, 1996, but later
changed it to June 9, 1996.

[3] Chilblains are "[a] form of cold injury
characterized by localized erythema and sometimes blistering. The
affected area itches, may be painful, and may progress to crusted
ulcerations. The cause is thought to be prolonged constriction of
arterioles in reaction to exposure to cold and dampness."
Taber’s Cyclopedic Medical Dictionary 367 (17th
ed. 1993).

[4] In the definition of "injury," Code
Sect. 65.2-101 also includes "occupational disease as
defined in Chapter 4 (Sect. 65.2-400 et seq.)." Green
does not, however, contend that her chilblains constitute an
occupational disease under the Act.

[5] Notably, the Court in Byrd had
the benefit of the decision in Aistrop, which discussed
the same principles as those set forth in Morris.

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