Home / Fulltext Opinions / Virginia Court of Appeals / SOUTHERN EXPRESS, et al. v. GREEN



FEBRUARY 3, 1998
Record No. 1316-97-2





Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia

S. Vernon Priddy, III (William B. Judkins; Sands, Anderson,
Marks & Miller, on brief), for appellants.

No brief or argument for appellee.

Southern Express contends the Workers’ Compensation Commission
erred by awarding benefits to Clara Louise Green for injuries she
sustained while working in a refrigerated room at a Southern
Express convenience store. Relying upon Morris v. Morris,
238 Va. 578, 385 S.E.2d 858 (1989), and The Stenrich Group v.
, 251 Va. 186, 467 S.E.2d 795 (1996), Southern Express
argues that Green’s injury was not an "injury by
accident" within the meaning of Code ? 65.2?101 because it
was a gradually incurred injury or a cumulative trauma condition.
We disagree, and we affirm the commission’s award.


The evidence proved that on June 22, 1996, Green was working
at a Southern Express convenience store stacking beer and soft
drinks in a refrigerated room. Green worked in the refrigerated
room from 2:00 a.m. until 6:00 a.m. wearing only a short?sleeved
shirt and no gloves. She testified that she was unable to leave
the room because she could not get the door open. She further
testified that when she came out of the refrigerated room at the
end of her work shift, she was cold and shivering. She testified
that her "hands had gotten all balled up and [her] face had
begun to ?? had sores on it." Later that day, she went to
the hospital.

The store manager testified that Green had undergone a thirty
to forty?five minute training session in the refrigerated room
because Green had not previously worked in the refrigerated room.
After the training session, Green worked in the refrigerated room
between two and three hours shelving merchandise. The manager
testified that the door to the refrigerated room had no lock on
it and that Green came out of the area while she was working
"a minimum of once, probably twice." He said Green did
not complain to him after she completed her work.

According to the medical records, Green went to the hospital
several hours after her work shift ended, complaining of pain in
her fingers, hands, left elbow and left forearm. The doctor
diagnosed "superficial frostbite of fingers." The
medical reports indicated that Green, an insulin dependent
diabetic, was treated for frostbite in both hands and advised to
wear gloves if exposed to the cold again. A podiatrist diagnosed
Green with chilblains caused by long?term exposure to cold
temperature. A dermatologist concurred that Green’s history
indicated a "cold injury consistent with chilblains."

Green filed a workers’ compensation claim, alleging injuries
resulting from her exposure to the cold at work. The commission
found that Green sustained chilblains from cold exposure at work.
Citing Byrd v. Stonega Coke & Coal Co., 182 Va. 212,
28 S.E.2d 725 (1944), the commission ruled that the testimony and
medical reports established an "injury by accident"
arising out of and in the course of Green’s employment. Southern
Express appeals from the decision awarding Green the reasonable
costs of her medical care.


"[G]enerally it has been held that the term ‘injury,’
‘personal injury,’ or ‘personal injury by accident,’ caused by
excessive heat [or] cold . . . is embraced within the meaning of
the [Act]." Id. at 215, 28 S.E.2d at 727. In 1944,
when the Supreme Court applied that rule to uphold an award to an
employee in Byrd, the Act required an employee who sought
compensation for an injury to prove an "injury by accident
arising out of and in the course of the employment." 182 Va.
at 215, 28 S.E.2d at 727. The current version of the Act has the
identical language. See Code ? 65.2?101.

In Byrd, an employee worked for ten hours around coke
ovens that reached a temperature of 2,500 degrees. 182 Va. at
214?15, 28 S.E.2d at 726?27. While the employee was breaking
coke and pulling it from the ovens, he collapsed and died. Noting
that "[a]s an original proposition, it would seem logical to
hold that the facts as related, do not disclose an
‘accident,’" id., the Court held, however, that
"if the 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
statute." Id. at 216, 28 S.E.2d at 727. In holding
that the employee had made out a prima facie case
for compensation, the Court noted that the employee’s exposure to
extreme heat was the cause of the employee’s death because
"it is a matter of common knowledge that frequently persons
apparently normal collapse from exposure to extreme heat or
cold." Id. at 217, 28 S.E.2d at 727.

In a later case, Robinette v. Kayo Oil Co., 210 Va.
376, 171 S.E.2d 172 (1969), the Court denied compensation to an
employee who contracted pneumonia after working for several days
"without boots, overshoes or raincoat in rainy, snowy and
cold weather during which there was standing water around the
gasoline pumps" where the employee worked. Id. at
377, 171 S.E.2d at 173. Ruling that the employee did not prove an
injury by accident, the Court noted the following:

In the present case [the employee] contracted pneumonia
from exposure to the elements in the regular course of his
employment. He was engaged in carrying out the duties for
which he had been employed for some six months. There was
nothing catastrophic or extraordinary in his exposure, nor
did it arise under emergency conditions. His exposure was
neither unexpected nor unforeseen but was intentional,
deliberate and protracted. There is nothing to distinguish
his activities from those of other service station attendants
or other workers who are required to do outside work in all
kinds of weather.

Id. at 381, 171 S.E.2d at 176.

Recently, this Court discussed these "exposure"
decisions in Imperial Trash Service v. Dotson, 18 Va. App.
600, 445 S.E.2d 716 (1994), and held that the more recent Supreme
Court case of Morris v. Morris, 238 Va. 578, 385 S.E.2d
858 (1989), did not preclude recovery when the evidence proved
that the employee suffered a heatstroke while working in warm
weather. The evidence in Dotson proved the employee
suffered an embolism from heatstroke from the following activity:

On July 10, 1990, . . . Dotson drove the
truck with the windows down. It was not air conditioned.
After Dotson and Mickelson had picked up material, weighing
fifteen to thirty pounds, at over seven hundred houses in 86
degree temperature, Dotson became confused and began losing
his balance. Dotson said, "this heat has gotten to
me." Mickelson, who realized that Dotson was in some
distress, placed Dotson in the shade of a tree and finished
the route alone. When Mickelson returned to the tree, Dotson
was in critical condition. Within minutes, Dotson was taken
to the hospital, unconscious, with a body temperature of 110

18 Va. App. at 602, 445 S.E.2d at 717.

In Dotson, this Court ruled that the conditions of
employment caused the heatstroke because the employee was
"work[ing] in hot, humid conditions over a period of time, a
situation to which the general public is not regularly
exposed." Id. at 605, 445 S.E.2d at 719. Furthermore,
this Court held that "[t]he fact that [the employee] lifted
containers over a brief period does not make the heatstroke [the
employee] suffered a ‘gradually incurred’ injury, as the employer
contends." Id.

After our Dotson decision, the Supreme Court in The
Stenrich Group v. Jemmott
, 251 Va. 186, 199, 467 S.E.2d 795,
802 (1996), and Middlekauff v. Allstate Ins. Co., 247 Va.
150, 154, 439 S.E.2d 394, 397 (1994), reiterated the view that a
gradually incurred injury is not an injury by accident within the
meaning of the Act. Both Jemmott and Middlekauff
cite Morris, which states 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’ within the meaning
of Code ? 65.1?7."
238 Va. at 589, 385 S.E.2d at 865. See Allied Fibers v.
, 23 Va. App. 101, 104, 474 S.E.2d 829, 830 (1996)
(hearing loss resulting from prolonged exposure to industrial
noise is noncompensable gradually incurred injury). But see
Code ? 65.2?400(C)
(amended in 1997 to state that "[h]earing loss and the
condition of carpal tunnel syndrome are not occupational diseases
but are ordinary diseases of life as defined in [Code] ? 65.2?401").

Awarding Green medical treatment for her injuries, the
commission cited Byrd and noted that "[i]t is well
established that exposure to cold or hot temperatures resulting
in conditions such as frostbite or heatstroke may constitute an
injury by accident." Indeed, that is precisely the holding
in Byrd. See 182 Va. at 217, 28 S.E.2d at 727.
Because the Supreme Court has not expressly overruled Byrd,
we are unable to conclude that the unequivocal rule in Byrd
has been overruled sub silento by the current line
of decisions represented by Morris, Jemmott and Middlekauff.
Those cases did not change the elements of injury by accident as
explained in Byrd.[1] Accordingly, we hold that the
commission did not err when it concluded that a condition
resulting from exposure to extreme temperatures may still
constitute an "injury by accident."


Factual findings by the commission are conclusive and binding
on appeal where credible evidence exists to support these
findings. Classic Floors, Inc. v. Guy, 9 Va. App. 90, 95,
383 S.E.2d 761, 764 (1989). The commission found that Green
worked in a refrigerated room for two to four hours and that
Green contracted chilblains from the cold exposure in the
refrigerated room. Credible evidence in the record supports this
finding. Green’s testimony established that she was without any
relief from the cold temperatures because she was unable to open
the door. This was Green’s first and only day working in the
refrigerated room, and she did not have any protective clothing.
Green was wearing a short?sleeved shirt and no gloves when she
was assigned to work in the refrigerated room for four hours.
Thus, the facts in evidence prove an extraordinary exposure that
distinguishes this case from Robinette and prove Green was
subjected to a greater hazard in the refrigerated room than she
otherwise would have been exposed. The harmful exposure that
Green experienced was due to a particular and specific work
event, as in Byrd, and was not the result of a series of
events, as in Robinette.

In addition, the commission’s finding that Green contracted
chilblains from the cold exposure in the refrigerated room is
supported by credible medical evidence. Reports from the doctors
diagnosed chilblains and related it to Green’s exposure to the
cold temperature in the refrigerated room. Chilblains is a
"localized erythema and doughy subcutaneous swelling caused
by exposure to the cold associated with
dampness, . . . usually involving the hands, feet,
ears, and face in children, the legs and toes in women, and the
hands and fingers in men." Dorland’s Illustrated Medical
331 (28th ed.).[2]
The medical evidence also proved that Green suffered superficial
frostbite. "Superficial frostbite . . . may be manifested as
simple erythema." Dorland’s Illustrated Medical
665 (28th ed.). Both conditions were the result of
sudden mechanical or structural changes in the body which
occurred when Green’s body reached a critical point of chilling.

The testimony and medical evidence provide credible evidence
to support the commission’s decision that Green suffered an
"injury by accident." Accordingly, we affirm the
commission’s award of the reasonable cost of Green’s medical
treatment for her injury.






[1]  We note that other states
have held that injury caused by exposure to extremes of heat or
cold constitute an exception to the "gradually
incurred" injury rule. For example, the Alabama courts hold
that the "concept of accident contemplates a reasonably
definite period of time during which the accident manifests
itself, rather than a gradual disintegration or
deterioration." Buchanan Lumber Co. v. Edwards, 531
So.2d 1, 2 (Ala. Civ. App. 1988). However, the Alabama Supreme
Court has also held that an employee’s death was caused by an
"accident" within the meaning of the workers’
compensation statute when the employee suffered an injury and
died from "severe heat exhaustion." See Ex
parte Neal
, 423 So.2d 850, 853 (Ala. 1982).

"Other jurisdictions hold, with virtual unanimity, that
when the conditions of employment expose the claimant to extreme
heat or cold, injuries such as heatstroke, heat exhaustion, heat
prostration, sunstroke, freezing, and frostbite are considered
accidental." Dillingham v. Yeargin Constr. Co., 358
S.E.2d 380, 382 (N.C. 1987). See also Holley v. Owens
Corning Fiberglas Corp.
, 392 S.E.2d 804 (S.C. App. 1990).

[2] "Women
are more often affected than men." Dr. Evans L. Lloyd, Hypothermia
and Cold Stress