Douglas Wayne Basham v. Crestar Bank/SunTrust Bank

• Court: Court of Appeals of Virginia
• Decided: August 28, 2001
• Docket: 1099012
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Frank and Clements

DOUGLAS WAYNE BASHAM MEMORANDUM OPINION* v. Record No. 1099-01-2 PER CURIAM AUGUST 28, 2001 CRESTAR BANK/SUNTRUST BANK AND MADISON INSURANCE COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(T. Bryan Byrne, on briefs), for appellant.

(Jennifer G. Marwitz; Law Offices of Roya Palmer Ewing, on brief), for appellees.

Douglas Wayne Basham contends that the Workers'

Compensation Commission erred in holding that he failed to prove

that on March 29, 2000 he sustained an injury by accident

arising out of his employment. Upon reviewing the record and

the briefs of the parties, we conclude that this appeal is

without merit. Accordingly, we summarily affirm the

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

Whether an injury "arose out of" the employment is a mixed

question of law and fact. Park Oil Co. v. 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

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 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).

To receive compensation benefits, a claimant must prove

that he suffered an injury by accident that arose out of and in

the course of the employment. See County of Chesterfield v.

Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). An injury

"arises out of" the employment if a causal connection exists

between the claimant's injury and "'the conditions under which

the employer requires the work to be performed,'" Grove v.

Allied Signal, Inc., 15 Va. App. 17, 19, 421 S.E.2d 32, 34

(1992) (citation omitted), or "some significant work related

exertion caused the injury," Plumb Rite Plumbing Service v.

Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989).

"'Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises "out of" the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.'"

- 2 - R & T Investments, Ltd. v. Johns, 228 Va. 249, 252-53, 321

S.E.2d 287, 289 (1984) (citations omitted).

Basham testified that on March 29, 2000, he worked for

Crestar Bank/SunTrust Bank (employer) overseeing computerized

"batch production control," and monitoring lines between

employer and different banks. At the time, Crestar Bank was

merging with SunTrust Bank.

Basham described his work area as a fifteen to twenty-yard

long aisle. He stated that he sat in a rolling chair very close

to a table and his keyboard, which ran along one side of the

aisle. Computer monitors were in front of Basham and above him,

and other tables were approximately four feet behind him. The

tables behind him were used by employees to store various

personal belongings. At times, other employees walked in the

aisle behind his chair. Basham stated that he had collided with

such persons a couple of times in the past when arising from his

chair. He testified that as part of his job, when a "tape

mount" indicator lit up on his computer, he was required to

leave his chair and go to another room to mount a tape as

quickly as possible.

On March 29, 2000, while sitting in his chair, Basham saw

the tape mount indicator light up. As a result, he needed to

retrieve a tape from another room and mount it in a different

room. He testified that he "started twisting and coming up out

of [his] chair." He stated, "When I seen the tape mount I spun

- 3 - out of my chair, twisting my back at the same time where I

wouldn't have to throw my chair back . . . and when I stood up I

felt a pinching, burning sensation in my left buttocks." He

admitted that rather than twisting up out of his chair, he could

simply have turned his head to see if anyone was coming behind

him.

Basham described the incident in an e-mail to his

supervisor as follows: "got out of chair." He did not mention

anything about twisting. His supervisor, Robert Kerlaveg,

testified that Basham never told him he twisted up out of the

chair because he was in a hurry to mount a tape.

The medical records reflect that when Basham was examined

by Dr. Des P. Moore shortly after the March 29, 2000 incident,

he mentioned nothing about twisting to get out of his chair at

work. On May 16, 2000, when he was first examined by

Dr. David S. Geckle, Basham reported the following history:

"[A]t work and he just stood up and suddenly developed severe

back and leg pain that has been progressive and unrelenting

since." It was undisputed that claimant had suffered from back

problems before March 29, 2000 and that he had undergone two

previous back surgeries for a herniated disc at the L5-S1 level.

Based upon this record, the commission held as follows:

[I]t does not appear that the claimant was in an awkward or cramped situation when he stood up to get out of his chair. Although arguably he twisted to avoid backing up and bumping into someone, the evidence suggests

- 4 - that in standing he aggravated a previous back problem and this simple standing does not arise out of his employment.

The evidence supports the commission's holding that no

condition of Basham's workplace caused or contributed to his

back injury on March 29, 2000. The evidence did not prove that

he was required as a condition of his employment to twist up

from his chair from an awkward position. Rather, the evidence

proved that his work area was configured in such a manner that

he could have looked to see if anyone was behind him, pushed his

chair back, and then stood up from it. The fact that he chose

to do otherwise did not constitute a "causative danger" that

"had its origin in a risk connected with the employment."

For these reasons, we affirm the commission's decision.

Affirmed.

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