Douglas Delton Turner, etc v. Commonwealth Bolt et

• Court: Court of Appeals of Virginia
• Decided: October 8, 2002
• Docket: 0676023
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Kelsey and Senior Judge Hodges

DOUGLAS DELTON TURNER (DECEASED), BY CONNIE TURNER (WIDOW) MEMORANDUM OPINION* v. Record No. 0676-02-3 PER CURIAM OCTOBER 8, 2002 COMMONWEALTH BOLT, INC. AND ASSOCIATED INDEMNITY CORPORATION

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Connie Turner, pro se, on brief).

No brief for appellees.

Douglas Delton Turner (deceased), employee, and Connie

Turner (widow), claimant, contend the Workers' Compensation

Commission erred in finding that claimant failed to prove that

the deceased employee sustained an injury by accident arising

out of his employment on February 20, 2001 and that his

subsequent death on February 26, 2001 was caused by his

employment. Upon reviewing the record, opening brief, and

employer's motion to dismiss, we conclude that this appeal is

without merit. Accordingly, we summarily affirm the

commission's decision. Rule 5A:27. 1

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Because we summarily affirm the commission's decision, we will deny the motion to dismiss. In reaching its conclusion that claimant failed to

establish that the deceased employee sustained an injury by

accident arising out of his employment, the commission made the

following findings:

[W]e note that all of the relevant testimony and medical evidence establishes that Mr. Turner's neck popping incident on February 20, 2001, resulted from his simple bending over to pick up a shop light. There is no evidence that he was in a bent or crouched position when he reached for the light, or that his work even required that he assume such a position.

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

to the prevailing party below. R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

Factual findings made by the commission will be upheld on appeal

if supported by credible evidence. See James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

"In order to recover on a workers' compensation claim, a

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).

"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).

Virginia uses the actual risk test to determine whether an

injury arises out of employment. Vint v. Alleghany Reg'l Hosp.,

32 Va. App. 60, 63, 526 S.E.2d 295, 297 (2000). "The mere - 2 - 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. Thus, "the

arising out of test excludes 'an injury which comes from a

hazard to which the employee would have been equally exposed

apart from the employment. The causative danger must be

peculiar to the work, incidental to the character of the

business, and not independent of the master-servant

relationship.'" Johnson, 237 Va. at 183-84, 376 S.E.2d at 75

(citation omitted).

The commission's decision regarding this question involves

a mixed question of fact and law. Southside Virginia Training

Ctr. v. Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995).

Generally, simple acts of walking, bending, or turning,

without 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).

Claimant's statements to his co-worker and his wife before

his death, as well as the medical histories, provide ample

support for the commission's factual findings. The evidence

established that something "popped" in the deceased employee's

neck when he simply bent over to pick up a shop light. No - 3 - evidence showed that he was required to assume an "awkward

position" while bending or that he engaged in any "unusual

exertion" or repetitive motion. The deceased employee had not

been working in a bent or awkward position for any specific

period of time. The deceased employee's act of bending was

neither unusual, awkward, nor strenuous, but was a risk to which

the general public is exposed.

Accordingly, we affirm the commission's finding that

claimant failed to prove that the deceased employee sustained an

injury by accident arising out of his employment. Because we

affirm that finding, we need not address the causation issue.

Affirmed.

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