COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Frank and Senior Judge Bray
Argued at Chesapeake, Virginia
JAMES A. CREWS
MEMORANDUM OPINION * BY
v. Record No. 1381-02-1 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 19, 2003
GATEWAY 2000 AND
SENTRY INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Chanda W. Stepney (Rutter, Walsh, Mills &
Rutter, L.L.P., on brief), for appellant.
Adam S. Rafal (Vandeventer Black L.L.P., on
brief), for appellees.
James Crews, claimant, appeals from a decision of the
Workers' Compensation Commission finding that his injury
occurred in the course of his employment but that it did not
arise out of his employment. For the reasons that follow, we
affirm.
Procedural Background
The claimant filed a claim for benefits with the commission
on November 23, 1999 and December 1, 1999, stating that he
sustained an injury by accident to his lower back and right leg
on April 3, 1998. Gateway 2000, employer, defended the claim on
the ground that the injury did not arise out of or occur in the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
course of claimant's employment. On November 6, 2000, the
deputy commissioner issued an opinion denying claimant's
application for benefits. Claimant appealed to the full
commission.
On April 27, 2001, the full commission issued an opinion
that vacated the deputy commissioner's opinion and remanded for
findings of fact and conclusions of law. The deputy
commissioner issued a revised opinion, on September 6, 2001, and
found that claimant's injury occurred in the course of his
employment, but did not arise out of his employment. The deputy
commissioner therefore denied claimant an award for benefits.
Claimant appealed to the full commission and on April 25, 2002,
the commission affirmed the deputy commissioner's decision.
Claimant now appeals the full commission's decision. 1
Facts
"On appeal, we view the evidence in the light most
favorable to the employer, the party prevailing before the
commission." Great Eastern Resort Corp. v. Gordon, 31 Va. App.
608, 610, 525 S.E.2d 55, 56 (2000). So viewed, the evidence
establishes that claimant began working for employer as a
security officer in May 1996. On April 3, 1998, claimant
sustained an injury by accident while participating in a
company-sponsored fundraising car wash. Claimant had a sponge,
1
Employer has not appealed the commission's finding that
the injury occurred in the course of claimant's employment.
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"someone would bring the car around, and [they] would soap it,
wash it off . . . ." Claimant had been washing cars for
approximately one hour, when he "bent over" to wash a hubcap and
felt pain in his lower back. He had no problems "up to the
point when [he] bent over to get the lower quadrant of the car."
Claimant had not been working in a bent position for any
particular period of time.
Claimant suffered an injury to his lower back. An MRI
performed on claimant revealed a herniated disc, and he
underwent laminectomy surgery.
Analysis
"In determining if an accident arises out of the
employment, Virginia applies the 'actual risk' test, which
'requires that the employment subject the employee to the
particular danger that brought about his or her injury.'"
Smithfield Packing Co. v. Carlton, 29 Va. App. 176, 181, 510
S.E.2d 740, 742 (1999) (quoting Lipsey v. Case, 248 Va. 59, 61,
445 S.E.2d 105, 106 (1994)). The injured employee must "show
that the conditions of the workplace or some significant work
related exertion caused the injury." Plumb Rite Plumbing Serv.
v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1985).
"'The mere happening of an accident at the workplace, not caused
by any work related risk or significant work related exertion,
is not compensable.'" Ogden Allied Aviation v. Shuck, 18
Va. App. 756, 758, 446 S.E.2d 898, 899 (1994) (en banc) (quoting
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Barbour, 8 Va. App. at 284, 382 S.E.2d at 306). "The causative
danger must be peculiar to the work, incidental to the character
of the business, and not independent of the master-servant
relationship." United Parcel Service v. Fetterman, 230 Va. 257,
258-59, 336 S.E.2d 892, 893 (1985). "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." Southside
Virginia Training Ctr. v. Ellis, 33 Va. App. 824, 829, 537
S.E.2d 35, 37 (2000).
In determining that claimant's injury was not caused by
work-related exertion or working in an awkward position, the
commission found that claimant's injury resulted from "merely
bending over" to wash a hubcap, "without other contributing
factors." Findings of fact made by the commission are
conclusive and binding upon us, Ellis, 33 Va. App. at 827, 537
S.E.2d at 36 (citing Georgia-Pacific Corp. v. Robinson, 32
Va. App. 1, 4-5, 526 S.E.2d 267, 268 (2000)), and will be upheld
on appeal if supported by credible evidence. Goodyear Tire &
Rubber Co. v. Harris, 35 Va. App. 162, 167, 543 S.E.2d 619, 621
(2001) (citing James v. Capitol Steel Constr. Co., 8 Va. App.
512, 515, 382 S.E.2d 487, 488 (1989)).
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Viewing this evidence in the light most favorable to
employer, we find the commission's decision is supported by
credible evidence. Claimant stated "I was bending over. . . .
That's basically what happened. I bent over." He also stated
he had "no problems up to the point where I bent over to get the
lower quadrant of that car."
Claimant's contention that he was working in an awkward
position when the injury occurred is not supported by the
evidence. His testimony on this point was not consistent.
Although he testified that he was "locked in a funny position"
after he injured himself and that he injured himself when he
"twisted" to reach the hubcap, he also made repeated assertions
that he was "bending over" when the injury occurred.
Specifically, he stated that he "bent over," "that thing
popped," and he felt pain after he was "locked into a funny
position." "That contrary evidence may be in the record is of
no consequence if there is credible evidence to support the
commission's findings." Robinson, 32 Va. App. at 4-5, 526
S.E.2d at 268 (internal quotations and citations omitted).
We find credible evidence supports the commission's
determination that claimant's injury did not arise from his
employment. See, e.g., Barbour, 8 Va. App. at 483-84, 382
S.E.2d at 306 (holding that claimant's injury was not
compensable because he was merely "bending over" to pick up a
piece of pipe when his injury occurred, and there was no
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significant work-related risk or exertion); Ellis, 33 Va. App.
at 829, 537 S.E.2d at 37 (holding that claimant's act of bending
over to pick up a tray in a cafeteria "was neither unusual,
awkward, nor something [he] was required to do on a repetitive
basis"); Vint v. Alleghany Reg'l Hosp., 32 Va. App. 60, 63, 526
S.E.2d 295, 297 (2000) (holding that claimant's injury did not
arise out of her employment where she was merely bending over to
pick up a trash can liner when she felt a sudden pain in her
back); compare Shuck, 18 Va. App. at 758, 446 S.E.2d at 899
(finding injury compensable where claimant sustained injury from
repeatedly looking up to view fuel gauges, which was "an unusual
or awkward position"); Grove v. Allied Signal, Inc., 15 Va. App.
17, 22, 421 S.E.2d 32, 35 (1992) (awarding benefits where injury
occurred while claimant worked in an awkward, crouched position,
because reaching for a pipe while in the position was a peculiar
hazard of his workplace); Brown v. Caporaletti, 12 Va. App. 242,
402 S.E.2d 709 (1991) (finding claimant's injury compensable
where it was sustained while trying to stand up after leaning
over a furnace for approximately four to five minutes, on the
ground that he was not simply bending over in a normal manner).
Accordingly, we affirm the commission's decision.
Affirmed.
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James A Crews v. Gateway 2000
Combined Opinion