 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Bonnie Be-Lo Markets v. House3/13/2001
Argued at Chesapeake, Virginia
MEMORANDUM OPINION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Bonnie Be-Lo Markets and its insurer (hereinafter referred to as "employer") contend on appeal that the Workers' Compensation Commission erred in its May 4, 2000 opinion which held that Benny Edward House (claimant) proved that (1) he sustained a compensable injury by accident on December 5, 1997; and (2) that he has been totally disabled since December 5, 1997, as a result of the December 5, 1997 injury by accident. We affirm the decision of the Workers' Compensation Commission.
BACKGROUND
The claimant had worked for the employer as a meat cutter since 1995. Before December 5, 1997, claimant suffered from back problems for which he had undergone seven back surgeries, the last of which occurred in July 1997. Following the July 1997 back surgery, claimant remained out of work until November 3, 1997. Claimant's treating physician, Dr. Mark B. Kerner, executed a document dated October 29, 1997, which said only the following:
Benny House is able to return to his full time work duties as a meat cutter without restriction on 11/3/97.
Claimant testified that before he returned to work on November 3, 1997, Dr. Kerner did not tell him that he should avoid performing work which required heavy lifting. Claimant testified that Dr. Kerner told him to wear a back brace and to be careful as to how he lifted objects. Claimant stated that he wore a back brace after he returned to work in November 1997 when his job necessitated heavy lifting.
After claimant returned to work as a meat cutter on November 3, 1997, he was able to perform his regular duties, including heavy lifting, up until December 5, 1997. Claimant testified that on December 5, 1997, he tried to move a case of meat weighing approximately one hundred pounds from the floor to a dolly. As he did so, he experienced pain in his back that radiated into his right hip and right leg. Claimant was wearing a back brace at the time of the accident. After the December 5, 1997 incident, claimant again sought medical treatment from Dr. Kerner. Claimant has not returned to work since December 5, 1997.
Dr. Kerner wrote several letters to counsel or insurance carriers after his initial treatment of the claimant for the December 5, 1997 injury. Reflective of that correspondence is a letter of January 14, 1998 to Trigon in which Dr. Kerner wrote:
I did not give the patient permission to go back to his usual and customary duties. Quite the opposite. I told him it would be foolish and wrong for him to return to that work.
All of Dr. Kerner's recorded statements of this type are after the December 5, 1997 accident.
On December 9, 1997, Dr. Kerner diagnosed "a work related flare of injury . . ." and opined that "the patient appears unable to return to his usual and customary work . . . ."
ANALYSIS
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). Factual findings made by the commission will be upheld on appeal if supported by credible evidence. See James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
I. Injury by Accident
Employer argues that claimant failed to prove he sustained an "accident" on December 5, 1997, as defined by the Workers' Compensation Act, on the ground that claimant's December 5, 1997 back injury was the foreseeable result of his returning to work as a meat cutter, which required heavy ben
Page 1 2 3 Virginia Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|