SOUTHSIDE VIRGINIA TRAINING CENTER/COM. v. Ellis

                     COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Frank and Humphreys
Argued at Richmond, Virginia


SOUTHSIDE VIRGINIA TRAINING CENTER/
 COMMONWEALTH OF VIRGINIA
                                                  OPINION BY
v.   Record No. 0659-00-2                  JUDGE ROBERT J. HUMPHREYS
                                               NOVEMBER 21, 2000
FREDERICK W. ELLIS


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Scott John Fitzgerald, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          Judith Williams Jagdmann, Deputy Attorney
          General; Gregory E. Lucyk, Senior Assistant
          Attorney General, on brief) for appellant.

          No brief or argument for appellee.


     Southside Virginia Training Center contends the Workers'

Compensation Commission erred when it ruled that Frederick W.

Ellis sustained a compensable injury arising out of his

employment on May 26, 1998.      For the reasons that follow, we

reverse the commission's award of benefits.

                            I.   Background

     Ellis worked as a truck driver at Southside Virginia

Training Center from April 9, 1986 through 1999.      Ellis'

position as a truck driver required him to travel to various

buildings on the campus and take carts filled with empty food

trays to a central location.     On occasion, when the people using

the food trays had failed to place the empty tray on the cart,
Ellis and other employees in his job position took the empty

trays from the dining tables and put them on the top of the cart

or in one of the lower slots if the top of the cart was full.

        On April 5, 1997, Ellis sustained a back injury when he

bent to lift one of the empty trays from a cart to a nearby

cabinet.    This injury was found to be compensable.   Ellis was

taken off work for a brief period of time and then returned to

work on light duty.    For his light duty assignment, Ellis was

given a desk job which required him to maintain records of food

inventory in the storeroom.

        By May 1998, Ellis was returned to full duty work.    On May

26, 1998, he walked into one of the campus buildings with a

fellow employee to get the cart of empty trays.    However, he

noticed that one empty tray was left on one of the dining

tables.    Ellis went to the table and lifted the tray, which held

an empty bowl and plate and weighed approximately ten pounds or

less.    He then twisted to his side and bent from the waist to

place the tray in the cart.    Because the top of the cart was

full, he had to bend to a point approximately twelve inches

above floor level to slide the tray into an empty slot.       As

Ellis stood up, his back went out.    The employee who was with

him came to his aid and helped him get medical attention.

        Ellis' claim for workers' compensation benefits was

initially denied.    A hearing was subsequently held before the


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commission on May 20, 1999.    Ellis sought medical benefits for

the May 26, 1998 injury, which he claimed was work-related.     The

Commonwealth argued that the injury was not caused by an

"accident arising out of employment as there was no risk of

employment involved." 1

     During the hearing, the commission considered testimony

from Ellis and the employee who witnessed the incident, as well

as various reports from Ellis' treating physicians.     The

commission found that, based on our decision in Brown v.

Caporaletti, 12 Va. App. 242, 402 S.E.2d 709 (1991), the injury

was compensable because the activity of bending, prior to

straightening, created a risk of injury resulting from the

conditions of the workplace.      The full commission affirmed this

decision.

                            II.    Analysis

            By statutory mandate, "an award of the
            [c]ommission . . . shall be conclusive and
            binding as to all questions of fact." Code
            § 65.2-706(A). Thus, we have often
            expressed our standard of review as follows:

            "In reviewing the commission's decision, we
            are guided by well-settled principles.
            '[I]t is fundamental that a finding of fact
            made by the [c]ommission is conclusive and
            binding upon this court on review.' '[T]hat
            contrary evidence may be in the record is of


     1
       The Attorney General also argued that the injury was a new
injury and not a change in condition. The commission found that
the injury was a new injury. This finding is not before us on
appeal.

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           no consequence if there is credible evidence
           to support the [c]ommission's findings.'"

           "The scope of a judicial review of the fact
           finding function of a workers' compensation
           commission [, therefore,] is 'severely
           limited, partly in deference to the agency's
           expertise in a specialized field.'"

Georgia-Pacific Corp. v. Robinson, 32 Va. App. 1, 4-5, 526

S.E.2d 267, 268 (2000) (citations omitted).

     Here, it is not disputed that Ellis' injury was sustained

during the course of his employment.   However, "[i]n order to be

compensable, . . . the injury 'must also arise out of the

employment; the injury must be caused by the conditions of the

workplace.'   The claimant must 'prove by a preponderance of the

evidence that the accident "arose out of and in the course of

his employment[.]"'"   Vint v. Alleghany Regional Hosp., 32 Va.

App. 60, 63, 526 S.E.2d 295, 297 (2000) (citations omitted).

     Whether an injury arose out of the employment is a mixed

question of law and fact properly reviewable by this Court.

Norfolk Community Hosp. v. Smith, 33 Va. App. 1, 4, 531 S.E.2d

576, 578 (2000).   In making these determinations, "Virginia

employs the actual risk test.   A claimant's injury arises out of

the employment if the manner in which the employer requires the

work to be performed is causally related to the resulting

injury."   Vint, 32 Va. App. at 63-64, 526 S.E.2d at 297.   As the

commission noted in its opinion "in [Brown,] the employee spent

about five minutes in a bent over position [working on a

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furnace,] and sustained an injury to his back while

straightening up.   The Court held that the injury was

compensable [, because] [a]lthough he was merely straightening

up at the time of the injury, this was connected to the previous

activities of the claimant [laying the 100 pound furnace on its

side]."   We found that these activities were "peculiar to his

work."    Brown, 12 Va. App. at 245, 420 S.E.2d at 711.   However,

we have specifically held that "[a]n 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 employment.   The causative danger must be

peculiar to the work and not common to the neighborhood.'"

Vint, 32 Va. App. at 63-64, 526 S.E.2d at 297.

     Put another way, an injury is not compensable merely

because it occurred during the performance of some employment

duty if the act performed by the employee is not a causative

hazard of the employment.   Simple acts of walking, bending, or

turning, without any other contributing environmental factors,

are not risks of employment.

     "On appeal, we view the evidence in the light most

favorable to the claimant, who prevailed before the commission."

Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d

335, 340 (1998) (citations omitted).   Here, the testimony of


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Ellis and his fellow employee established that Ellis was injured

after bending to pick up the tray.    The action of bending was

neither unusual, awkward, nor something that Ellis was required

to do on a repetitive basis.    Grove v. Allied Signal, Inc., 15

Va. App. 17, 21-22, 421 S.E.2d 32, 34-35 (1992); see also Vint,

32 Va. App. at 65-66, 526 S.E.2d at 297-98.   In such cases, we

have held that "[a]n injury resulting from merely bending over

to do something does not arise out of the employment . . .

[because] merely bending over is a risk to which the general

public is equally exposed."    Vint, 32 Va. App. at 65-66, 526

S.E.2d at 297-98. 2

     Our Supreme Court has noted that in an appropriate case,

"[i]t is generally held . . . that the words 'arising out of and

in the course of employment' should receive a liberal

construction in order to carry out the humane and beneficent

purposes of the act."   Bradshaw v. Aronovitch, 170 Va. 329, 336,

196 S.E. 684, 686 (1938).   However, we have recognized that

these words "cannot be liberalized by judicial interpretation

for the purpose of allowing compensation on every claim


     2
       We also note that the record established Ellis' duties as
a truck driver required him to drive trucks to various locations
and gather carts already filled with the empty trays. Although
there was testimony that Ellis and his fellow employees would
"bus" tables from time to time, the commission made no factual
finding that Ellis was required to pick up trays from tables and
put them into the carts, nor does the record establish, absent
speculation, that this activity was related or incident to
Ellis' employment.

                              - 6 -
asserted."     Vint, 32 Va. App. at 63, 526 S.E.2d at 297 (emphasis

added).   "[A] claimant [must] show that the conditions of the

workplace or that some significant work related exertion caused

the injury."     Plumb Rite Plumbing Service v. Barbour, 8 Va. App.

482, 484, 382 S.E.2d 305, 306 (1989).    The record contains no

such showing, and the mere happening of an accident at the

workplace, not caused by any work-related risk or significant

work-related exertion, is not compensable.     Id.

     Accordingly, we reverse the commission's decision, vacate

the award of benefits and render final judgment for the

appellant.

                                      Reversed and final judgment.




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