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Buren v. Augusta County and Virginia Association of Counties Group Self Insurance

Court of Appeals of Virginia

July 19, 2016

ROBERT VAN BUREN, SR.
v.
AUGUSTA COUNTY AND VIRGINIA ASSOCIATION OF COUNTIES GROUP SELF INSURANCE

         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Bradford M. Young (Hammond Townsend, PLC, on briefs), for appellant.

          Richard D. Lucas (Lucas & Kite, PLC, on brief), for appellee.

          OPINION

          RICHARD Y. ATLEE, JR. JUDGE

         Robert 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."[1] We reverse.

         I. Background

         "On 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.

         A. Injury

         At the 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.

         Initially, 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.

         Once 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.

         B. Treatment

         Four 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.

         C. Commission Proceedings

         Van 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."

         In 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.

         II. Analysis

         A. Stand ...


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