                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia


SOUTHERN EXPRESS AND HARLEYSVILLE
 MUTUAL INSURANCE COMPANY
                                                 OPINION BY
v.   Record No. 1316-97-2                JUDGE JAMES W. BENTON, JR.
                                              FEBRUARY 3, 1998
CLARA LOUISE GREEN


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           S. Vernon Priddy, III (William B. Judkins;
           Sands, Anderson, Marks & Miller, on brief),
           for appellants.

           No brief or argument for appellee.



      Southern Express contends the Workers' Compensation

Commission erred by awarding benefits to Clara Louise Green for

injuries she sustained while working in a refrigerated room at a

Southern Express convenience store.    Relying upon Morris v.

Morris, 238 Va. 578, 385 S.E.2d 858 (1989), and The Stenrich
Group v. Jemmott, 251 Va. 186, 467 S.E.2d 795 (1996), Southern

Express argues that Green's injury was not an "injury by

accident" within the meaning of Code § 65.2-101 because it was a

gradually incurred injury or a cumulative trauma condition.     We

disagree, and we affirm the commission's award.

                                  I.

      The evidence proved that on June 22, 1996, Green was working

at a Southern Express convenience store stacking beer and soft

drinks in a refrigerated room.    Green worked in the refrigerated

room from 2:00 a.m. until 6:00 a.m. wearing only a short-sleeved
shirt and no gloves.    She testified that she was unable to leave

the room because she could not get the door open.    She further

testified that when she came out of the refrigerated room at the

end of her work shift, she was cold and shivering.    She testified

that her "hands had gotten all balled up and [her] face had begun

to -- had sores on it."    Later that day, she went to the

hospital.

        The store manager testified that Green had undergone a

thirty to forty-five minute training session in the refrigerated

room because Green had not previously worked in the refrigerated

room.    After the training session, Green worked in the

refrigerated room between two and three hours shelving

merchandise.    The manager testified that the door to the

refrigerated room had no lock on it and that Green came out of

the area while she was working "a minimum of once, probably

twice."    He said Green did not complain to him after she

completed her work.
        According to the medical records, Green went to the hospital

several hours after her work shift ended, complaining of pain in

her fingers, hands, left elbow and left forearm.    The doctor

diagnosed "superficial frostbite of fingers."    The medical

reports indicated that Green, an insulin dependent diabetic, was

treated for frostbite in both hands and advised to wear gloves if

exposed to the cold again.    A podiatrist diagnosed Green with

chilblains caused by long-term exposure to cold temperature.      A




                                 - 2 -
dermatologist concurred that Green's history indicated a "cold

injury consistent with chilblains."

        Green filed a workers' compensation claim, alleging injuries

resulting from her exposure to the cold at work.      The commission

found that Green sustained chilblains from cold exposure at work.

 Citing Byrd v. Stonega Coke & Coal Co., 182 Va. 212, 28 S.E.2d

725 (1944), the commission ruled that the testimony and medical

reports established an "injury by accident" arising out of and in

the course of Green's employment.       Southern Express appeals from

the decision awarding Green the reasonable costs of her medical

care.
                                  II.

        "[G]enerally it has been held that the term 'injury,'

'personal injury,' or 'personal injury by accident,' caused by

excessive heat [or] cold . . . is embraced within the meaning of

the [Act]."     Id. at 215, 28 S.E.2d at 727.    In 1944, when the

Supreme Court applied that rule to uphold an award to an employee

in Byrd, the Act required an employee who sought compensation for
an injury to prove an "injury by accident arising out of and in

the course of the employment."    182 Va. at 215, 28 S.E.2d at 727.

 The current version of the Act has the identical language.          See

Code § 65.2-101.

        In Byrd, an employee worked for ten hours around coke ovens

that reached a temperature of 2,500 degrees.      182 Va. at 214-15,

28 S.E.2d at 726-27.    While the employee was breaking coke and



                                 - 3 -
pulling it from the ovens, he collapsed and died.    Noting that

"[a]s an original proposition, it would seem logical to hold that

the facts as related, do not disclose an 'accident,'" id., the

Court held, however, that "if the injury or death results from,

or is hastened by, conditions of employment exposing the employee

to hazards to a degree beyond that of the public at large, the

injury or death is construed to be accidental within the meaning

of the statute."   Id. at 216, 28 S.E.2d at 727.    In holding that

the employee had made out a prima facie case for compensation,
the Court noted that the employee's exposure to extreme heat was

the cause of the employee's death because "it is a matter of

common knowledge that frequently persons apparently normal

collapse from exposure to extreme heat or cold."     Id. at 217, 28

S.E.2d at 727.

     In a later case, Robinette v. Kayo Oil Co., 210 Va. 376, 171

S.E.2d 172 (1969), the Court denied compensation to an employee

who contracted pneumonia after working for several days "without

boots, overshoes or raincoat in rainy, snowy and cold weather

during which there was standing water around the gasoline pumps"

where the employee worked.   Id. at 377, 171 S.E.2d at 173.

Ruling that the employee did not prove an injury by accident, the

Court noted the following:
          In the present case [the employee] contracted
          pneumonia from exposure to the elements in
          the regular course of his employment. He was
          engaged in carrying out the duties for which
          he had been employed for some six months.
          There was nothing catastrophic or
          extraordinary in his exposure, nor did it



                               - 4 -
          arise under emergency conditions. His
          exposure was neither unexpected nor
          unforeseen but was intentional, deliberate
          and protracted. There is nothing to
          distinguish his activities from those of
          other service station attendants or other
          workers who are required to do outside work
          in all kinds of weather.


Id. at 381, 171 S.E.2d at 176.

     Recently, this Court discussed these "exposure" decisions in

Imperial Trash Service v. Dotson, 18 Va. App. 600, 445 S.E.2d 716

(1994), and held that the more recent Supreme Court case of
Morris v. Morris, 238 Va. 578, 385 S.E.2d 858 (1989), did not

preclude recovery when the evidence proved that the employee

suffered a heatstroke while working in warm weather.    The

evidence in Dotson proved the employee suffered an embolism from

heatstroke from the following activity:
          On July 10, 1990, . . . Dotson drove the
          truck with the windows down. It was not air
          conditioned. After Dotson and Mickelson had
          picked up material, weighing fifteen to
          thirty pounds, at over seven hundred houses
          in 86 degree temperature, Dotson became
          confused and began losing his balance.
          Dotson said, "this heat has gotten to me."
          Mickelson, who realized that Dotson was in
          some distress, placed Dotson in the shade of
          a tree and finished the route alone. When
          Mickelson returned to the tree, Dotson was in
          critical condition. Within minutes, Dotson
          was taken to the hospital, unconscious, with
          a body temperature of 110 degrees.


18 Va. App. at 602, 445 S.E.2d at 717.

     In Dotson, this Court ruled that the conditions of

employment caused the heatstroke because the employee was

"work[ing] in hot, humid conditions over a period of time, a


                                 - 5 -
situation to which the general public is not regularly exposed."

 Id. at 605, 445 S.E.2d at 719.    Furthermore, this Court held

that "[t]he fact that [the employee] lifted containers over a

brief period does not make the heatstroke [the employee] suffered

a 'gradually incurred' injury, as the employer contends."     Id.

     After our Dotson decision, the Supreme Court in The Stenrich

Group v. Jemmott, 251 Va. 186, 199, 467 S.E.2d 795, 802 (1996),

and Middlekauff v. Allstate Ins. Co., 247 Va. 150, 154, 439

S.E.2d 394, 397 (1994), reiterated the view that a gradually

incurred injury is not an injury by accident within the meaning

of the Act.   Both Jemmott and Middlekauff cite Morris, which
states that "injuries resulting from repetitive trauma,

continuing mental or physical stress, or other cumulative events,

as well as injuries sustained at an unknown time, are not

'injuries by accident' within the meaning of Code § 65.1-7."      238

Va. at 589, 385 S.E.2d at 865.     See Allied Fibers v. Rhodes, 23

Va. App. 101, 104, 474 S.E.2d 829, 830 (1996) (hearing loss

resulting from prolonged exposure to industrial noise is

noncompensable gradually incurred injury).     But see Code

§ 65.2-400(C) (amended in 1997 to state that "[h]earing loss and

the condition of carpal tunnel syndrome are not occupational

diseases but are ordinary diseases of life as defined in [Code]

§ 65.2-401").

     Awarding Green medical treatment for her injuries, the

commission cited Byrd and noted that "[i]t is well established




                                 - 6 -
that exposure to cold or hot temperatures resulting in conditions

such as frostbite or heatstroke may constitute an injury by

accident."    Indeed, that is precisely the holding in Byrd.     See

182 Va. at 217, 28 S.E.2d at 727.       Because the Supreme Court has

not expressly overruled Byrd, we are unable to conclude that the

unequivocal rule in Byrd has been overruled sub silento by the

current line of decisions represented by Morris, Jemmott and

Middlekauff.     Those cases did not change the elements of injury

by accident as explained in Byrd. 1      Accordingly, we hold that the

commission did not err when it concluded that a condition

resulting from exposure to extreme temperatures may still

constitute an "injury by accident."

                                 III.

        Factual findings by the commission are conclusive and

binding on appeal where credible evidence exists to support these
    1
     We note that other states have held that injury caused by
exposure to extremes of heat or cold constitute an exception to
the "gradually incurred" injury rule. For example, the Alabama
courts hold that the "concept of accident contemplates a
reasonably definite period of time during which the accident
manifests itself, rather than a gradual disintegration or
deterioration." Buchanan Lumber Co. v. Edwards, 531 So.2d 1, 2
(Ala. Civ. App. 1988). However, the Alabama Supreme Court has
also held that an employee's death was caused by an "accident"
within the meaning of the workers' compensation statute when the
employee suffered an injury and died from "severe heat
exhaustion." See Ex parte Neal, 423 So.2d 850, 853 (Ala. 1982).
     "Other jurisdictions hold, with virtual unanimity, that when
the conditions of employment expose the claimant to extreme heat
or cold, injuries such as heatstroke, heat exhaustion, heat
prostration, sunstroke, freezing, and frostbite are considered
accidental." Dillingham v. Yeargin Constr. Co., 358 S.E.2d 380,
382 (N.C. 1987). See also Holley v. Owens Corning Fiberglas
Corp., 392 S.E.2d 804 (S.C. App. 1990).




                                 - 7 -
findings.     Classic Floors, Inc. v. Guy, 9 Va. App. 90, 95, 383

S.E.2d 761, 764 (1989).    The commission found that Green worked

in a refrigerated room for two to four hours and that Green

contracted chilblains from the cold exposure in the refrigerated

room.    Credible evidence in the record supports this finding.

Green's testimony established that she was without any relief

from the cold temperatures because she was unable to open the

door.    This was Green's first and only day working in the

refrigerated room, and she did not have any protective clothing.

Green was wearing a short-sleeved shirt and no gloves when she

was assigned to work in the refrigerated room for four hours.

Thus, the facts in evidence prove an extraordinary exposure that

distinguishes this case from Robinette and prove Green was
subjected to a greater hazard in the refrigerated room than she

otherwise would have been exposed.       The harmful exposure that

Green experienced was due to a particular and specific work

event, as in Byrd, and was not the result of a series of events,

as in Robinette.
        In addition, the commission's finding that Green contracted

chilblains from the cold exposure in the refrigerated room is

supported by credible medical evidence.      Reports from the doctors

diagnosed chilblains and related it to Green's exposure to the

cold temperature in the refrigerated room.      Chilblains is a

"localized erythema and doughy subcutaneous swelling caused by

exposure to the cold associated with dampness, . . . usually




                                 - 8 -
involving the hands, feet, ears, and face in children, the legs

and toes in women, and the hands and fingers in men."     Dorland's

Illustrated Medical Dictionary 331 (28th ed.). 2    The medical

evidence also proved that Green suffered superficial frostbite.

"Superficial frostbite . . . may be manifested as simple

erythema."     Dorland's Illustrated Medical Dictionary 665 (28th

ed.).    Both conditions were the result of sudden mechanical or

structural changes in the body which occurred when Green's body

reached a critical point of chilling.
        The testimony and medical evidence provide credible evidence

to support the commission's decision that Green suffered an

"injury by accident."    Accordingly, we affirm the commission's

award of the reasonable cost of Green's medical treatment for her

injury.

                                                          Affirmed.




    2
     "Women are more often affected than men."     Dr. Evans L.
Lloyd, Hypothermia and Cold Stress (1996).




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