Brian Scott Timmons v. Airborne Freight, etc

• Court: Court of Appeals of Virginia
• Decided: May 16, 1995
• Docket: 1761944
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Fitzpatrick Argued at Alexandria, Virginia

BRIAN SCOTT TIMMONS

v. Record No. 1761-94-4 MEMORANDUM OPINION* BY JUDGE JOSEPH E. BAKER AIRBORNE FREIGHT CORPORATION MAY 16, 1995 AND AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Kathleen G. Walsh (Ashcraft & Gerel, on brief), for appellant.

Michael L. Zimmerman (Brault, Palmer, Grove, Zimmerman, White & Mims, on brief), for appellees.

In this appeal from a decision of the Workers' Compensation

Commission (commission), Brian Scott Timmons (claimant) contends

that the commission erred when it found that claimant did not

prove his injury arose out of his employment with Airborne

Freight Corporation (employer). Finding no error, we affirm the

commission's decision.

On appellate review, we construe the evidence in the light

most favorable to the party prevailing below. R.G. Moore Bldg.

Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788

(1990). Claimant had been a customer service agent for employer

for six years immediately prior to July 21, 1993. His work

required him to receive telephone calls regarding employer's ____________________

*Pursuant to Code § 17-116.010 this opinion is not designated for publication. freight services. In the performance of that work, claimant sat

in a wheeled, swivel chair answering telephone calls through a

headset and use of a computer. He was evaluated on how quickly

he answered the calls. He worked at a desk and was required to

swivel one to one and one-half feet to access the computer when

responding to a call; however, he could reach the computer

without turning. At the time of his injury, claimant had locked

his foot behind a roller on the base of his chair, preventing the

chair from moving. While responding to an incoming call on July

21, 1993, claimant was required to access the computer. When he

moved to receive the call, his locked foot prevented the swivel

chair from moving. His lower body remained stationery while his

upper body twisted. Claimant testified that as he twisted, he

felt something pop in his back. His claim for compensation

benefits was based upon the injury resulting from that incident.

To recover under the Workers' Compensation Act, claimant

must prove, by a preponderance of the evidence, that he suffered

an "injury by accident arising out of and in the course of the

employment." Code § 65.2-101. "The phrase arising 'in the

course of' refers to the time, place, and circumstances under

which the accident occurred. The phrase 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).

The question of whether an injury "arose out of" the

employment is a mixed question of law and fact. Park Oil Co. v.

- 2 - Parham, 1 Va. App. 166, 168, 336 S.E.2d 531, 532 (1985). We

must, therefore, determine whether the facts presented are

sufficient as a matter of law to justify the commission's

finding. Hercules, Inc. v. Stump, 2 Va. App. 77, 78, 341 S.E.2d

394, 395 (1986).

In its opinion, the commission said: The claimant has the burden of proving an injury by accident on July 21, 1993 arising out of and in the course of his employment. The dispositive question is whether the claimant's injury resulted from a risk of his employment. We find that it did not. The evidence shows that [claimant] did nothing more than turn in his chair to answer the telephone and access his computer. No significant exertion was required, and there was nothing awkward or strenuous in his movements. The mere act of turning in one's chair is insufficient to bring the injury within the coverage of the Act.

We hold that the evidence supports that conclusion.

Claimant relies upon First Fed. Sav. and Loan v. Gryder, 9

Va. App. 60, 383 S.E.2d 755 (1989). The cases are

distinguishable by their facts. In Gryder, the Court

specifically noted that if Gryder had been only working at her

desk and felt a sharp pain when she "twisted," she would not have

been permitted to recover. On those facts, Gryder supports the commission's decision.

In the case before us, claimant's injury was caused solely

by his twisting. The conditions of the work place had nothing to

do with the injury he sustained. See Plumb Rite Plumbing Service

v. Barbour, 8 Va. App. 482, 382 S.E.2d 305 (1989).

- 3 - Accordingly, for the reasons stated, the commission's

decision is affirmed.

Affirmed.

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