COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Bray
Argued at Norfolk, Virginia
PHILIP MORRIS USA, ET AL.
MEMORANDUM OPINION * BY
v. Record No. 2920-95-1 JUDGE RICHARD S. BRAY
JULY 9, 1996
BRENDA JEAN ARMSTEAD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Thomas Jackson Mitchell (Hunton & Williams,
on briefs), for appellants.
Gerald G. Poindexter (Poindexter & Brown, on
brief), for appellee.
Philip Morris USA (employer) appeals a decision of the
Workers' Compensation Commission (commission) awarding Brenda
Jean Armstead (claimant) temporary total disability benefits. On
appeal, employer contends that claimant failed to prove an injury
which "arose out of her employment." We disagree and affirm the
commission.
The parties are fully conversant with the record, and we
recite only those facts necessary to a disposition of this
appeal. Under familiar principles, we construe the evidence in
the light most favorable to the party prevailing below, claimant
in this instance. Crisp v. Brown's Tysons Corner Dodge, Inc., 1
Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).
"In order to recover on a workers' compensation claim, a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
claimant must prove: (1) an injury by accident, (2) arising out
of and (3) in the course of his employment." Kane Plumbing, Inc.
v. Small, 7 Va. App. 132, 135, 371 S.E.2d 828, 830 (1988); see
Code § 65.2-101. "The phrase arising 'in the course of' refers
to the time, place, and circumstances under which the accident
occurred," while "arising 'out of' refers to the origin or cause
of the injury." County of Chesterfield v. Johnson, 237 Va. 180,
183, 376 S.E.2d 73, 74 (1989). Thus, the "mere happening of an
accident at the workplace, not caused by any work related risk or
significant work related exertion, is not compensable." Plumb
Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d
305, 306 (1989). A claimant must establish "that the conditions
of the workplace or . . . some significant work related exertion
caused the injury." Id. Injury resulting from the "mere act" of
bending over is not compensable. Id.
"The actual determination of causation is a factual finding
that will not be disturbed on appeal," if supported by credible
evidence. Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376
S.E.2d 814, 817 (1989); see Code § 65.2-706. However, "[w]hether
an injury arises out of and in the course of employment is a
mixed question of law and fact . . . , reviewable []on appeal."
Jones v. Colonial Williamsburg Found., 8 Va. App. 432, 434, 382
S.E.2d 300, 301 (1989).
The record discloses that claimant had been employed as a
"Manufacturing Technician I" for approximately fifteen years
- 2 -
prior to the subject injury on October 11, 1994. Her duties
included "unfold[ing and assembling] corrugated boxes." She
testified that "when [she] went down [to lift a box, she] felt
this discomfort, but when [she] came up with the box in [her]
hand [she] knew [she] had hurt [her] back." Claimant thereafter
sought medical attention, and Dr. E. Claiborne Irby, Jr., an
orthopedic surgeon, diagnosed a "lumbar strain," recording that
claimant "injured herself at work . . . when she bent over to
pick up a large box and hurt her back."
The commission found that there was "little reliable
evidence that [claimant] experienced low back pain as she bent
forward, and before actually lifting the box," noting that
claimant "describe[d] one movement of bending forward, grasping
the box, and experiencing at least the most severe pain as she
was straightening it with her hand." The commission thus
concluded that the record "sufficiently establishe[d] that the
injury occurred as the claimant was lifting the heavy box."
The commission's factual finding that claimant's back injury
was caused by lifting the box is consistent with her testimony 1
1
Employer cites Massie v. Firmstone, 134 Va. 450, 114 S.E.
652 (1922), in support of its assertion that claimant's evidence
is limited by her testimony that the injury occurred when bending
to lift the box. However, "[t]he doctrine . . . does not apply
'to an adverse statement standing in isolation from the
litigant's testimony as a whole.'" Norfolk and Western Ry. v.
Chittum, 251 Va. 408, 413, 468 S.E.2d 877, 880 (1996) (citation
omitted). "'[A] damaging statement made in one part of [a
litigant's] testimony must be considered in the light of an
explanation of such statement made in a later part of [her]
testimony . . . . And it is generally for the [fact finder] to
determine whether it will accept such explanation or
- 3 -
and the medical evidence and is otherwise supported in the
record. Accordingly, we affirm the decision of the commission
that claimant's injury "arose out of her employment."
Affirmed.
clarification.'" Id. (citation omitted).
- 4 -