Brian Scott Timmons v. Airborne Freight, etc ( 1995 )

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
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*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.
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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).
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Accordingly, for the reasons stated, the commission's
decision is affirmed.
Affirmed.
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