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Cash v. Howard Johnson Motel2/28/1995
MEMORANDUM OPINION BY JUDGE JAMES W. BENTON, JR.
Lucy Collins Cash contends that the Workers' Compensation Commission erred by terminating her temporary total disability benefits after four months when she suffered disability from a separate non-employment related injury. Cash's employer, Howard Johnson Motel, contends on a cross appeal that the commission erred in finding that Cash's injury arose out of her employment and that Cash was entitled to disability benefits. We affirm the commission's award.
I.
The evidence proved that Cash, who is sixty-one years of age, was employed as a hotel maid. She injured her back on March 19, 1992 when kneeling and cleaning the track of a sliding glass door. She slid the door back and forth to determine whether the sliding track was cleaned and began to arise from her position when she injured her back. She informed the supervisor of the injury and later received medical treatment.
Dr. Whitehill examined Cash for this injury and reported that Cash's work effort caused her to stretch lumbar nerves and roots so as to exacerbate a pre-existing spinal stenosis. In a later examination, Dr. Whitehill diagnosed a degenerative hip joint disease which also pre-existed her work injury. Dr. Whitehill injected an anesthetic into Cash's hip to determine the components of her pain that were attributable to her back injury and those that were attributable to her hip joint. On August 26, 1992, Cash had surgery to replace her hip.
The deputy commissioner made a finding that nothing in the work place contributed to Cash's back injury and denied her application for benefits. Finding that "cleaning a glass door with two hands while kneeling is an awkward activity . . . [that] poses a risk peculiar to the employment," the commission reversed the deputy's decision. The commission also found that Cash became disabled from an unrelated hip problem on August 26, 1992, and awarded Cash temporary total disability benefits from April 2, 1992 to August 25, 1992, for her work related injury.
II.
"An [injury by] accident arises out of the employment if there is a causal connection between the [employee's] injury and the conditions under which the employer requires the work to be performed." R&T;Investments, Ltd. v. Jones, 228 Va. 249, 252, 321 S.E.2d 287, 289 (1985).
"To constitute injury by accident it is not necessary that there should be an extraordinary occurrence in or about the work engaged in." The evidence is sufficient to establish an injury by accident "even though the degree of exertion is usual and ordinary and 'the workman had some predisposing physical weakness.'"
Kemp v. Tidewater Kiewit, 7 Va. App. 360, 363, 373 S.E.2d 725, 726 (1988)(citations omitted).
The testimony of Cash and Dr. Whitehill supports the commission's finding that Cash's injury occurred as a consequence of working in an awkward position and that the injury was compensable. See Grove v. Allied Signal, Inc., 15 Va. App. 17, 421 S.E.2d 32 (1992). Moreover, an injury that exacerbates a pre-existing condition is compensable. Ohio Valley Construction Co. v. Jackson, 230 Va. 56, 58, 334 S.E.2d 554, 555 (1985); Southern Iron Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993). Accordingly, the commission's finding that Cash proved an injury by accident arising from the employment is supported by credible evidence.
Furthermore, Dr. Whitehill's medical repo
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