ROBERT VAN BUREN, SR.
AUGUSTA COUNTY AND VIRGINIA ASSOCIATION OF COUNTIES GROUP SELF INSURANCE
THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Bradford M. Young (Hammond Townsend, PLC, on briefs), for
Richard D. Lucas (Lucas & Kite, PLC, on brief), for
RICHARD Y. ATLEE, JR. JUDGE
Van Buren, Sr. appeals a decision of the Virginia
Workers' Compensation Commission ("the
Commission"). He asserts that the Commission erred when
it found his injury was "not the result of an
identifiable incident which occurred at a reasonably definite
time" but rather was "gradually incurred" and
"the result of repetitive or cumulative
trauma." We reverse.
appeal, this Court views the evidence in the light most
favorable to the prevailing party below." Town &
Country Hosp., LP v. Davis, 64 Va.App. 658, 660, 770
S.E.2d 790, 791 (2015). In this case, Augusta County and the
Virginia Association of Counties Group Self Insurance
(collectively "employer") prevailed below.
"Factual findings by the commission that are supported
by credible evidence are conclusive and binding upon this
Court on appeal." Nurses 4 You, Inc. v. Ferris,
49 Va.App. 332, 339-40, 641 S.E.2d 129, 132 (2007) (quoting
S. Iron Works, Inc. v. Wallace, 16 Va.App. 131, 134,
428 S.E.2d 32, 34 (1993)). The following facts are supported
by credible evidence.
time of his injury, Van Buren was fifty-two years old and
working as a firefighter. While on duty on July 25, 2014, he
responded to a call requesting assistance for an elderly man
who had fallen in the shower. The man weighed approximately
400 pounds and had broken his leg during the fall. When Van
Buren arrived, the man was crumpled awkwardly in the shower,
his broken limb crushed under the weight of his body. For the
next thirty to forty-five minutes, Van Buren and his
colleagues used a combination of improvisation, brute
strength, and equipment to rescue the injured man.
Van Buren and another firefighter used a sheet as a sling,
balancing on the ledge of the shower, looping the sheet under
the injured man's arms, then elevating and holding the
man to relieve pressure on his leg. From there, Van Buren
helped maneuver the man onto a towel, then onto a
flat-bottomed, flexible stretcher. Van Buren and the others
slowly dragged and pushed this stretcher the length of the
hallway, along the floor. Van Buren testified: "I had
stabilized his broken leg with my left arm and had to pull
down the hallway towards the cot with my right arm." At
the end of the hallway, Van Buren helped hoist the man off
the flat-bottomed stretcher and onto a wheeled stretcher. Van
Buren and the other firefighters then hauled the wheeled
stretcher out of the house and down a hill. At the bottom of
the hill, Van Buren helped heave the wheeled stretcher into
the back of the ambulance.
Van Buren had dealt with the crisis and loaded the injured
man into the ambulance, he noticed for the first time "a
pain on the outside [o]f [his] arm." At the hearing in
front of the deputy commissioner, in response to a question
about whether he ever felt a sudden onset of pain while
helping the man, Van Buren testified that he had not
initially noticed the pain because the injured man was
"hollering" and because of "the adrenaline
with the call and everything." However, "as soon as
[he] closed the door and got ready to go and walk[ed] around
the unit to drive, " Van Buren noticed the pain in his
arm. He then drove the injured man to the hospital.
days after the rescue, Van Buren called an employee hotline
and reported that he was experiencing pain in his right
shoulder. Over the next several months, he visited various
medical professionals: a nurse practitioner at his family
doctor's office, a physical therapist, his family doctor,
and doctors at a hospital affiliated with the University of
Virginia. In each instance, Van Buren described being hurt
while assisting the man during the rescue on July 25, 2014.
Ultimately, an MRI revealed a disc herniation at C5-6.
Doctors at the University of Virginia surgically removed the
herniated disc material in October of 2014 and performed both
a hemilaminotomy and a foraminotomy.
Buren filed an initial claim for benefits with the Commission
on September 11, 2014, and an amended claim several months
later. A hearing before the deputy commissioner occurred in
March of 2015. Van Buren testified at the hearing, and both
parties introduced exhibits. Among the evidence introduced by
employer was a letter signed by Dr. James LaGrua, Van
Buren's physician. In that letter, Dr. LaGrua affirmed
that it was his opinion, "to a reasonable degree of
medical probability, " that Van Buren suffered a
cervical herniation "as a result of the twisting,
lifting, awkward movements and exertion required to extract
the gentleman from the shower, into the bathroom, down the
hall, onto the gurney and into the ambulance."
April of 2015, the deputy commissioner awarded Van Buren
temporary total disability, lifetime medical benefits, and
attorney's fees. Employer appealed that award to the full
Commission. In November of 2015, a divided Commission
reversed and vacated the deputy commissioner's decision.
Van Buren then noted his appeal to this Court.