Spanish
VIRGINIA: 12/31/2003
IN THE WORKERS’ COMPENSATION COMMISSION
EZEQUIEL VELEZ RIVERA, Claimant
Opinion by the
COMMISSION
v. VWC File No. 213-20-24
AHC MANAGEMENT, L.L.C., Employer
HARTFORD UNDERWRITERS INSURANCE COMPANY, Insurer
Daniel P. Barrera, Esquire
for the Claimant.
Roger L. Williams, Esquire
for the Defendants.
REVIEW on the record by Commissioner Dudley, Commissioner Tarr, and Commissioner Diamond at Richmond, Virginia.
This case is before the Commission on the employer’s request for Review of the Deputy Commissioner’s June 19, 2003, Opinion finding the claimant established an injury arising out of and in the course of his employment, as well as causally-related disability from January 13 through April 28, 2003. We AFFIRM the Opinion below.
This 28-year-old maintenance worker testified through a translator that at 9:00 a.m. on May 13, 2002, he and his supervisor, Pablos Zamora, brought a refrigerator up to the second floor of a building. The claimant was wearing a security belt at the time. The claimant testified that he told Mr. Zamora he felt a “bump in [his] back”and asked to take a break because he “felt the impact in the back of [his] back” but felt no pain. The claimant continued working after the break until noon, when he went to lunch and took his belt off and felt pain. The claimant testified that he went to his bed in his apartment, and later fell because the pain in his back went down his left leg.
The claimant returned to work after lunch and told Mr. Zamora that he had a “very strong pain” in his back. At approximately 2:30 p.m., he stopped working because he “couldn’t stand the pain anymore.” The claimant testified that he went with his supervisor to report to the chief and then went home to rest. However, he fell again because he could not feel his legs, so he decided to go to George Mason Hospital. He sought follow-up treatment in May and September from Dr. Fernandez. He returned to full duty on May 20, 2002, but continued to refill his medication.
The claimant denied suffering any other incidents or falls between May 13, 2002, and January 2003, when his condition became worse and the medicine no longer worked. He eventually had surgery.
Pablos Zamora, the employer’s maintenance supervisor, testified that when the claimant returned from lunch on May 13, 2002, he reported a “very hard back pain” which he did not attribute to anything in particular. Mr. Zamora testified that approximately two weeks later, the claimant stated that he felt he had hurt his back moving a refrigerator. Mr. Zamora stated that the claimant missed a few days from work in May 2002 and then returned to his regular duty without complaint until January 13, 2003. Mr. Zamora testified that the claimant’s regular duties include lifting, bending, pushing, and climbing.
Mr. Zamora testified that he did not remember moving a refrigerator with the claimant on the morning of May 13, 2002, but after reviewing his files he has nothing to dispute that the refrigerator move took place. He does remember changing filters with the claimant that morning. He testified that they went to lunch around 1:00 p.m., and at 2:30 or 3:00 p.m., the claimant reported that he had taken a nap after lunch and had a difficult time getting up and had a “very bad back pain.” Mr. Zamora stated that the claimant tried to work that afternoon but could not, so he asked the claimant to report to the manager.
Escarlet Torres, resident manager for the employer, testified that she handles workers’ compensation claims. She testified that between 2:30 and 3:00 p.m. on May 13, 2002, the claimant reported a “really sharp pain on his back that he couldn’t even walk.” Ms. Torres testified that she asked the claimant if he was doing anything “unusual,” and the claimant replied that he “was just doing his normal work.” She testified that lifting a refrigerator would not have been “unusual” work for the claimant; rather, it would be part of his normal routine.
A translation of the claimant’s recorded statement, admitted as Defendants’ Exhibit 1, confirms the incident of moving the refrigerator with pain beginning on his break.
The medical record reveals that the claimant sought treatment at Virginia Hospital Center on May 13, 2002, where triage personnel reported a history of “lifting a refrig. this am @ work.” The personnel reported a complaint of back pain and numbness in his extremities. The claimant was diagnosed with a lumbosacral sprain.
On May 15, 2002, the claimant saw Dr. Ricardo Fernandez, who reported a complaint of back pain after “lifting refrigerator several days ago.” Dr. Fernandez diagnosed back pain and asthma. For the back problem, he prescribed Celebrex and noted that the claimant should return if the problem did not resolve. The claimant returned on September 16, 2002, with back pain and some radiation to the left leg. He also complained of increased allergies. Dr. Fernandez diagnosed lumbar radiculopathy. The claimant returned on January 13, 2003, reporting that the day before he awoke with severe pain in his low back radiating to his left leg and foot. He excused the claimant from work, ordered an MRI, and referred him to Dr. Dennis A. Carlini, orthopedic surgeon, who examined the claimant on January 17, 2003. Dr. Carlini reported that the claimant had a seven-month history of low back pain with bilateral leg radiation, worse on the left. He also reported that the MRI showed disc herniations at L4-5 and L5-S1.
After an unsuccessful epidural, Dr. Carlini referred the claimant to Dr. Alan G. Schreiber, who reported that the claimant “had an injury moving furniture to the third floor in May of last year” with back pain “off and on since that time.” Dr. Schreiber subsequently performed surgery
On Review, we note the claimant has the burden of proving that his injury was caused by an identifiable incident or sudden precipitating event causing an obvious, sudden mechanical or structural change in the body. Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989); Lane Co. v. Saunders, 229 Va. 196, 199, 326 S.E.2d 702, 703 (1985). ”Causation is an essential element which must be proven by a claimant in order to receive an award of compensation for an injury by accident.” AMP, Inc. v. Ruebush, 10 Va. App. 270, 274, 391 S.E.2d 879, 881 (1990). However, “it is not necessary in establishing causation that the pain or other physical manifestation of injury be contemporaneous with the incident in employment to prove that the injury arose out of the employment.” Morris v. Morris, 4 Va. App. 193, 200, 355 S.E.2d 892, 896 (1987), rev’d on other grounds, 238 Va. 578, 385 S.E.2d 858 (1989).
We find that the claimant credibly described a significant incident in carrying a refrigerator up steps on May 13, 2002. Although he felt no pain, he did feel a “bump’ or an “impact” in his back at the time. The claimant’s supervisor, Mr. Zamora, did not dispute that the claimant moved a refrigerator that morning. Ms. Torres merely asked if the claimant did anything “unusual” that morning, to which the claimant responded in the negative. Ms. Torres admitted that it would not have been unusual for the claimant to be moving a refrigerator in the course of his employment. We find the record supports the claimant’s testimony at the hearing concerning the incident.
We further find causation established. As noted above, it is not necessary for the claimant to have felt pain at the time he moved the refrigerator. The claimant’s pain developed over the course of the afternoon after moving the refrigerator. He attributed his pain to this event at the hospital later that same day and at subsequent medical visits. The medical reports consistently report a history of the incident. Moreover, in contrast to the employer’s assertions on Review, the claimant did seek further medical treatment prior to January 2003. The claimant saw Dr. Fernandez in May and September 2002. At the latter visit, it is evident that the claimant’s condition was worsening. The claimant also testified that between May and September, his medications were refilled. The medical reports confirm that the claimant’s back problems persisted and worsened, despite his continuing to work until his pain was so bad that he could no longer work in January 2003.
After careful Review, we find the evidence amply supports the Deputy Commissioner’s findings that the claimant sustained a compensable injury by accident arising out of and in the course of his employment on May 13, 2002, and that the incident caused the claimant’s disability. The Opinion below is AFFIRMED.
This matter is hereby removed from the Review docket.
APPEAL
This Opinion shall be final unless appealed to the Virginia Court of Appeals within 30 days of receipt.
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