COURT OF APPEALS OF VIRGINIA

Present: Judges Beales , Alston and Senior Judge Willis Argued at Alexandria, Virginia

GIANT FOOD LLC AND I NDEMNITY INSURANCE

COMPANY OF NORTH AME RICA MEMORANDUM OPINION * BY v. Record No. 1393

- 1 2

- 4 JUDGE ROSSIE D. ALS TON, JR. MARCH 5, 2013 JULIET WU

FROM THE VIRGINIA WORKERS ’ COMPENSATION COMMISSION Brandi R. Howell (Franklin & Prokopik, P.C., on briefs) , for appellant s . Andrew S. Kasmer for appellee.

Giant Food LLC (employer) appeals the c ommission’s award of benefits to Juliet Wu (claimant). On appeal, employer contends that the c ommission erred in finding that claimant sustained a compensable injury by accident on October 28, 2009, and in finding that the claimant’s left knee injury and disability from Sept ember 8, 2010 , and continuing are causally related to the occupational accident of October 28, 2009. Finding no error, we affirm.
I. BACKGROUND 1 On appeal from the Workers’ Compensation Commission, “we view the evidence in the light most favorable to the party prevailing below,” in this case, c laimant. Tomes v. James City

* Pursuant to Code § 17.1

- 413, this o pinion is not designated for publication.

1 As the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this appeal.UNPUBLISHED- 2

- Fire , 39 Va. App. 424, 429, 573 S.E.2d 312, 315 (2002) (citing R.G. Moore Bldg. Corp. v. Mullins , 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990) )

. So viewed, the evidence show s that on October 28, 2009, c laimant, a sixty

- five

- year - old

woman employed as a cashier for e mployer, was bagging groceries when her manager asked her to take a break. Claimant took her purse and, on her way to the bathroom in the back of the
store, the purse ca ught on a merchandise hook hangi ng from a shelf. As a result, c laimant lost her balance and fell. Claimant was immediately taken to INOVA Fairfax Hospital. At the hospital, c laimant complained of pain in her left knee, arm, and shoulder. A medical exam ination found some effusion and restriction on the range of motion in her left knee.
An x - ray of claimant’s knee did not show any fractures or dislocation. A separate x

- ray of claimant’s arm also show ed a fracture of c laimant’s left humerus. On November 11, 2009, c laimant had a follow

- up appointment with Dr. Robert A. Hymes, who noted that c laimant continued to complain of knee pain. Dr. Hymes provided

c laimant with a work status note recommending no use of her left arm and leg. On December 8, 2009, Dr . Hymes provided another work status note, this time stating that c laimant had pain in her left knee and diagnos ing claimant with a left humerus fracture. Cons equently, Dr. Hymes restricted c laimant to sit

- down work only. The next day, on December 9, 20 09, Dr. Hymes again examined c laimant and noted healing of her humerus fracture but also found a “ limited active range of motion

. ” On January 6, 2010, Dr. Hymes examined c laimant and released her to work, providing c laimant with a note stating that she ha d been diagnosed with a l eft d istal r adius fracture. The note also stated that
Dr. Hymes was releas ing c laimant to full duty work beginning on January 25, 2010. Claimant did return to work in January 2010.- 3

- On January 26, 2010, c laimant filed a claim fo r benefits. On March 9, 2010, c laimant filed a second claim for benefits seeking a total wage loss benefit from November 7, 2009 , to December 25, 2009 , and December 26, 2009 , to Januar y 22, 2010. On July 29, 2010, c laimant retained counsel and filed anoth er claim for benefits requesting a lifetime award of medical benefits for her injuries. In August 2010, Dr. Hymes referred c laimant to Dr. M

. Malek , and c laimant began treatment with Dr. Malek at Washington Orthopaedic and Knee Clinic on September 8, 2010

. Dr. Malek’s initial evaluation noted that c laimant was injured at work on October 28, 2009 , and complained of pain in her left shoulder and left knee. The evaluation also noted that c laimant continued to have “significant difficulty and inability to wa lk independently” and that she used a

cane. An x

- ray of c laimant’s left knee revealed “an old fracture of the patella which has malunited.” Dr. Malek furt her noted that he had reviewed claimant’s x

- rays from October 2009 and that he could “see the fract ure[d] patella, which was present from the very beginning.”
Dr. Malek also examined and x

- rayed c laimant’s left shoulder and recommended surgery on her shoulder to address her limited range of motion. As a result of his diagnoses , Dr. Malek
p rovided c lai mant with a disability certificate recommending that she remain off work while undergoing diagnosis and therapy. On September 22, 2010, c laimant returned to see Dr. Malek, who opined that c laimant’s malunited left patella needed to be addressed by surgery . Dr. Malek recommended in a n ew disability certificate that c laimant remain off work and noted that he was sc heduling left knee surgery for c laimant.- 4

- From October 2010 through December 2010 , Dr. Malek continued to treat c laimant and consistently opined that c laimant’s malunion of the patellar fracture needed to be surgically addressed and recommend ed that c laimant remain off work. Dr. Malek noted that c laimant’s left knee would occasiona lly “give out on her” and that c laimant was now using a walker at home , likely due to the malunion of the patella . On December 15, 2010, D r. Malek again provided

c laimant with a disability certificate recommending she remain off work. On January 5, 2011, Dr. Malek responded to a questionnaire from c laimant’s attorney

r egarding her injuries, in whi ch he stated that he diagnosed c laimant with “arthrofibrosis [of the] left shoulder” and “a [m]alunion patella” in the left knee. When asked whether the stated conditions were caused by the October 28, 2009 accident, Dr. Malek checked the box for “yes.” When asked whether, in his opinion, c laimant was restricted from working from at least September 8, 2010 to the present, Dr. Malek checked the box for “yes.” Dr. Malek wrote that he recommended arthroscopic surgery for both th e left shoulder and the left knee to relieve

c laimant’s pain and increase her functioning. The letter also noted that the foregoing answers represented Dr. Malek’s opinions were expressed by Dr. Malek to a reasonable medical probability. The hearing befo re the d eputy c ommissioner took place on January 24, 2011. Regarding the October 28, 2009 accident, c laimant testified that “[o]n her way to the bathroom, [she passed] a shopping lane” in which “there was a customer [with] a shopping cart.” Claimant furt her said that, because the cart was in the middle of the aisle and the custome r was on the left of the cart,

c laimant passed on the right side of the ca rt. It was at this point that c laimant’s purse was “caught by the shelf, the hook on [the shelf] ” and s he fell. During cross

- examination, c laimant testified that the cart was empty and not moving.- 5

- On April 26, 2011, the d eputy c ommissioner denied c laimant’s claim for benefits, finding that c laimant’s injury did not arise out of her employment. Claimant a ppealed to the

c ommission. The c ommission subsequently reversed the d eputy c ommissioner on November 7, 2011, and remanded the case to the d eputy c ommission er “for further consideration of the remaining issues and defenses.” The c ommission found that c lai mant’s injury arose out of her employment because a causal connection existed between c laimant’s workplace and her injuries , stating, “[S] ignificant to this case, [ c laimant’s] employment placed her in the aisle and walking to the restroom. [Claimant] mane uvered around a cart and confronted a workplace hazard

– the shelf hook

. ” On January 12, 2012, c laimant underwent an i ndependent m edical e xamination with
Dr. George Kartalian, Jr. Dr. Kartalian took bilateral knee x

- rays and stated that “[n]o patella
fra cture was appreciated.” Upon review of c laimant’s October 2009 x

- rays, Dr. Kartalian said that they showed “irregularity of the patella” but that “no obvious fracture is seen[.]” There was, however, “a suggestion that there may be an injury or fracture” and the “lateral view also show[ed] a possible fracture line.” Dr. Kartalian concluded, though, that any fracture would not be “an obvious finding.” Regarding c laimant’s knee injury, Dr. Kartalian ultimately opined that c laimant had “healed from a patel la fracture , ” her left knee pain was due to “degenerative changes , ” and “[it was] possible that [ c laimant] suffered a patella fracture from the injury of [October 28, 2009]

. ” Dr. Kartalian continued that “[it was] not clear that an arthroscopic surgical p rocedure would benefit the left knee given the extensive degenerative changes and the symmetrical appearance and function of both of her knees,” nor was it clear that “the injuries from 10/28/2010 [sic] are causing [ c laimant’s] current inability to work.” Dr. Kartalian did state that “Dr. Malek’s- 6

- treatment [had] been reasonable, necessary, and causally related to the injuries of [October 28, 2009].” On February 8, 2012, upon remand from the c ommission’s November 7, 2011 determination, the d eputy c ommissi oner issued her opin ion and found that c laimant’s left knee injury, treatment, and disability were causally related to the October 28, 2009 accident. The d eputy c ommissioner relied upon Dr. Malek’s opinion and the statement by Dr. Kartalian that the

x - ray s taken on October 28, 2009 , showed “irregularities” and that the left knee injury was possibly related to the accident. The d eputy c ommissioner entered an award for the c laimant, including temporary total disability benefits from October 29, 2009 to Nove mber 11, 2009; December 6, 2009 to January 24, 2010; and September 8, 2010 and continuing. The d eputy

c ommissioner also awarded c laimant medical benefits for as long as necessary for her left arm, shoulder, and knee. Employer appealed to the c ommission , and the c ommission affirmed the d eputy

c ommissioner’s February 8, 2012 opinion. This appeal followed.
II. ANALYSIS A. Compensable Injury by Accident On appeal, employer alleges that the c ommission erred in finding that claimant sustained a compensable injury by accident. 2

2 We note at the outset that we reject claimant’s argument that employer waived this assignment of error by failing to appeal the c ommission’s November 7, 2011 order holding that c laimant sustained a compensable injury by accident and remanding the case to the d eputy c ommissioner. The c ommission’s November 7, 2011 order, which contained no award to claimant and specifically remanded the case to the d eputy c ommissioner, was not a fi nal award and so did not become binding when employer did not appeal the November 7, 2011 order within thirty days under Code § 65.2

- 706. See Jewell Ridge Coal Corp . v. Henderson , 229 Va. 266, 269, 392 S.E.2d 48, 50 (1985) (stating that the Court reviews only the final awards of the c ommission).- 7

- “Whether an injury arises out of an d in the course of employment involves a mixed question of law and fact, which we review de novo on appeal.” Blaustein v. Mitre Corp. , 36
Va. App. 344, 348, 550 S.E.2d 336, 338 (2001). On review to this Court, “‘[d]ecisions of the

c ommission as to questions of fact, if supported by credible evidence, are conclusive and binding on this Court.’” VFP, Inc. v. Shepherd , 39 Va. App. 289, 292, 572 S.E.2d 510, 511 (2002) (quoting WLR Foods v. Cardosa , 26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997)). For an injury to be compensable under the Virginia Workers’ Compensation Act, the claimant must prove by a preponderance of the evidence that the injury “‘[arose] out of and in the course of the employment.’” Marketing Profiles, Inc. v. Hill , 17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993) ( en banc ) (quoting Code § 65.2

- 101). “The phrase arising ‘out of’ refers to the origin or cause of the injury.” Cnty

. of Chesterfield v. Johnson , 237 Va. 180, 183, 376
S .E.2d 73, 74 (1989). Virginia adheres to the actual risk test to determine whether an injury arose “out of” the employment. Id. at 18 5 , 376 S.E.2d at 75

- 76. An injury arises out of the employment when “‘there is apparent to the rational mind upon conside ration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.’” Hill , 17 Va. App. at 434, 437 S.E.2d at 7 29 (quoting Bradshaw v. Aronovitch , 170 Va. 329, 335, 196 S.E . 684, 686 (1938)). An injury does not arise out of the employment when it “cannot fairly be traced to the employment as a contributing proximate cause and .

. . comes from a hazard to which the workmen would have been equally exposed apart from the emplo yment. The causative danger must be peculiar to the work and not common to the neighborhood .” Vint v. Alleghany Reg’l Hosp. , 32 Va. App. 60, 63

- 64, 526 S.E.2d 295, 297 (2000) (quoting Bradshaw , 170 Va. at 335, 196 S.E. at 686 (emphasis added ) (citation omitted) )

.- 8

- In this case, claimant f e ll because her purse was caught on a hook on the merchandise shelf in the grocery store aisle. 3 The c ommission found, as a matter of fact, that the hook on the merchandise shelf was a hazard peculiar to the workplace w hen it identified the hook as “a workplace hazard.” On appeal, w e cannot disturb this factual determination because it was supported by evidence in the record

. See Diaz v. Wilderness Resort Ass’n , 56 Va. App. 104, 114, 691 S.E.2d 517, 522 (2010) (“ [W]e m ust defer to the c ommission’s findings of fact if supported by credible evidence in the record .”). This case is distinguishable from Bernard v. Carlson Cos. , 60 Va. App. 400, 728 S.E.2d 508 (2012), upon which employer relies. In Bernard , this Court held that the claimant’s injury did not arise out of an actual risk of his employment because there was nothing hazardous , dangerous , unusual , or peculiar about the quesadilla the claimant was consuming when he was injured nor was the act of swallowing partiall y chewed food peculiar to his workplace . 60
Va. App. at 410, 728 S.E.2d at 513. In contrast, in this case, the c ommission was entitled to conclude that the hook, located on a grocery store merchandise shelf, was peculiar to claimant’s workplace and not “ common to the neighborhood

. ” Bradshaw , 170 Va. at 335, 196 S.E. at 686

. Accordingly, we find that the c ommission did not err in holding that claimant’s injury arose out of her employment. B. Causal Connection Between the Workplace Accident and Injury E mployer also argues on appeal the c ommission erred in holding that claimant’s left knee injury and disability from September 8, 2010 , and continuing are causally related to the work accident.

3 Although there was some discussion by the parties on brief about the necessity of claimant’s maneuvering around the shopping cart in the aisle and the possible contribution of this movement to claimant’s injury, the shopping cart was not the focus of the c ommission’s analysis, nor is it a focus of our determination on appeal.- 9

- Determination of causation is a factual finding

. Thompson v. Br enco, Inc. , 38 Va. App. 617, 622, 567 S.E.2d 580, 583 (2002). When reviewing workers’ compensation cases, we defer to these factual findings

. Code § 65.2

- 706(A); Hawks v. Henrico [Cnty.] Sch. Bd. , 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). “ If the re is evidence , or reasonable inferences can be drawn from the evid ence, to support the commission’ s findings, they will not be disturbed on review, even though there is evidence in the record to support a contrary finding. ” Morris v. Badger Powhatan/Figg ie Int ’ l, Inc. , 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986). Amelia Sand Co. v. Ellyson , 43 Va. App. 406, 408, 598 S.E.2d 750, 751 (2004). Moreover, the “question [of causation] raised by ‘conflicting medical opinion s ’ is one of fact.” Eccon Const r. Co. v. Lucas , 221 Va. 786, 790, 273 S.E.2d 797, 799 (1981) (quoting Johnson v. Capitol Hotel , 189 Va. 585, 590, 54 S.E.2d 106, 109 (1949))

. Employer ’ s argument on appeal is essentially that Dr. Malek ’s and Dr. Kartalian’s opinions conflict regarding whether claimant suffered a patellar fracture in the October 28, 2009 accident and that claimant’s knee pain was caused by degeneration and arthritis , not the work accident. In finding that claimant’s knee injury was caused by the October 28, 2009 work

ac cident, the c ommission relied upon (1) claimant’s immediate complaints of knee pain and irregularities revealed by the examination of claimant’s knee after the accident; (2) “[t]he in i tial treating physicians ’ not[ing] of some type of acute knee injury”; ( 3) Dr. Malek’s review of claimant’s new and old x

- rays and his opinion that claimant suffered from a patellar fracture resulting from the work

- related fall that had not properly healed; and (4) Dr. Kartalian’s agreement that “the original x

- rays showed irr egularities” and acknowledgment of “the possibility of a patellar fracture.”
Th us, there is credible evidence in the record to support the c ommission’s conclusion that claimant’s knee injury and disability from September 8, 2010, was caused by the Oc tobe r 28, 2009 work accident. To the extent Dr. Kartalian’s assessment of the cause of claimant’s injury- 10

- conflicted with Dr. Malek’s, the c ommission was entitled to credit Dr. Malek’s opinion. See
Lucas , 221 Va. at 790, 273 S.E.2d at 799. As a result, we ho ld that the c ommission did not err.
III. CONCLUSION For the above reasons, we find that the c ommission did not err in any respect identified by employer. Accordingly, the c ommission’s opinion is affirmed. Affirmed.