COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
MEDICAL COLLEGE OF VIRGINIA
SCHOOL OF DENTISTRY
MEMORANDUM OPINION *
v. Record No. 0247-97-2 PER CURIAM
JUNE 17, 1997
BARBARA A. HAWKINS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James S. Gilmore, III, Attorney General;
Gregory Lucyk, Senior Assistant Attorney
General; Ingrid E. Olson, Assistant Attorney
General, on brief), for appellant.
(T. Andrew Lingle, on brief), for appellee.
Medical College of Virginia School of Dentistry (employer)
appeals a decision of the Workers' Compensation Commission
(commission) awarding benefits to Barbara A. Hawkins (claimant).
Employer contends that the commission erred in finding that
claimant proved that she sustained an injury by accident arising
out of her employment on December 11, 1995. Finding no error, we
affirm.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). A
finding by the commission that an injury did or did not arise out
of the employment is a mixed finding of law and fact and is
properly reviewable on appeal. See Jones v. Colonial
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Williamsburg Found., 8 Va. App. 432, 434, 382 S.E.2d 300, 301
(1989). The phrase "arising out of" refers to the origin or
cause of the injury. See County of Chesterfield v. Johnson, 237
Va. 180, 183, 376 S.E.2d 73, 74 (1989). To prevail, claimant
must "show that the conditions of the workplace . . . caused the
injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482,
484, 382 S.E.2d 305, 306 (1989).
In holding that the back injury claimant sustained when she
bent over to retrieve paper from a cabinet arose out of her
employment, the commission made the following factual findings:
Here, claimant was required to perform her
job duties in a limited workspace. She had
to twist to move dental instruments through
different phases of sterilization. As a
final step, the claimant was required to wrap
the instruments in disposable paper. This
paper was located in a cabinet on the bottom
shelf, and she had to twist and bend in order
to retrieve it. The claimant maintained this
awkward position in order to accomplish an
employment-related task. She was in this
position due to the confined work area and
the location of the cabinet.
Claimant's testimony constitutes credible evidence to
support the commission's factual findings. Thus, these findings
are binding and conclusive upon us. Based upon these findings,
the commission could reasonably conclude that claimant's injury
arose from an actual risk occasioned by her work environment.
The commission, in its role as fact finder, was entitled to give
more weight to claimant's testimony than to the testimony of
claimant's supervisor, Teresa Duke, who did not witness the
2
actual mechanics of claimant's injury. Moreover, "[t]he fact
that there is contrary evidence in the record is of no
consequence if there is credible evidence to support the
commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va.
App. 890, 894, 407 S.E.2d 32, 35 (1991).
For these reasons, we affirm the commission's decision.
Affirmed.
3
Annunziata, J., dissenting.
Claimant testified that she felt a "funny pull in [her]
back," when she bent over at the waist and reached to get the
"blue wrap," which was kept inside a cabinet. Claimant's
attorney asked claimant the following question: "And at the time
you felt that pain were you twisting or bending at all?"
Claimant responded: "I was bent over." Only after further
leading questions from her counsel did claimant state that she
had to turn to her right. Claimant never testified, however,
that she twisted to her right as she bent to retrieve the "blue
wrap." In addition, claimant signed and certified as true an
accident report which revealed that she was bending over and was
not twisting or carrying any weight at the time of her injury.
Dr. O.T. Graham, who began treating claimant on December 13,
1995, recorded the following history: "Just [b]ent over to get
blue wrap in the bottom of the cabinets and hurt low back."
Claimant's supervisor, Teresa Duke, testified that claimant
did not have anything in her hands and the cabinet door was not
yet open when the injury occurred. Duke noted that based upon
the placement of claimant's feet at the time of the injury, she
did not believe that claimant had twisted to reach her position.
The simple act of bending over is a hazard to which all
people are exposed and, absent a finding that claimant was
involved in a significant exertion, awkward position, or other
employment-related hazard, she is not entitled to an award of
4
compensation benefits. See Plumb Rite Plumbing Serv. v. Barbour,
8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). "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.
Based upon this record, I find that no credible evidence
proved that claimant engaged in any significant exertion, that
her action of bending involved any awkward position, or that any
condition or hazard peculiar to her workplace caused her injury,
aside from the usual act of bending to pick up a piece of paper.
For these reasons, I would reverse the commission's decision
awarding benefits to claimant.
5