Charlotte M. Peck v. Tultex Corporation ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
CHARLOTTE M. PECK
v. Record No. 0165-95-3 MEMORANDUM OPINION *
PER CURIAM
TULTEX CORPORATION FEBRUARY 13, 1996
AND
KEMPER NATIONAL INSURANCE COMPANIES
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
James B. Feinman, for appellant.
Gregory T. Casker (Martha White Medley;
Daniel, Vaughan, Medley & Smitherman, on
brief), for appellees.
Charlotte M. Peck appeals the ruling by the Workers'
Compensation Commission that her back injury did not arise out of
her employment with Tultex Corporation. We affirm the
commission's decision.
Peck worked for Tultex as a sewing machine operator for nine
years. Peck described her work station as consisting of a sewing
machine positioned on a table in front of her with an eighteen-
inch wide work bench located six inches to her right and an
eighteen-inch wide work bench located six inches to her left. To
perform her job duties, Peck sat in a wooden back chair. She
placed her legs in front of her and under the sewing machine
table. Peck's chair did not have arms or rollers, and it did not
swivel. She kept her right foot on the sewing machine pedal and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
her left foot rested on the floor. There was an on/off box
located on the right underside of the sewing machine table.
There was another sewing machine table located two to three feet
behind Peck.
Peck testified that, on July 22, 1993 at approximately
3:00 p.m., she received five bundles of sweatshirts to sew. She
placed two of the bundles on the right work bench and two of the
bundles on the left work bench. She put the remaining bundle on
her table. She untied the bundle and placed a ticket in her left
hand. At that time, she decided to eat her afternoon snack, an
orange. 1 As she sat in her chair with her legs under the sewing
machine table, she turned her upper body "slightly" to the right
to pick up the orange that was located on the work bench. It is
unclear from the record whether the orange was six or eighteen
inches away from Peck. As she turned her upper body and before
she picked up the orange, something "popped" in her lower back
and she experienced significant pain.
Peck stated that she could not move her legs at the time she
attempted to retrieve the orange because she was sitting with her
legs under the sewing machine table and her right knee would have
hit the on/off box. Peck testified that the work benches and the
on/off switch restricted her movement. However, she admitted
that there was nothing to prevent her from moving her chair back
1
The employer permitted its employees to eat food while they
were working.
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two to three feet and getting up from her chair to retrieve the
orange.
Peck promptly reported the back injury to her supervisor.
Peck was diagnosed as suffering from a lumbar strain. She was
out of work until September 27, 1993.
To recover benefits, Peck must establish that she suffered
an injury by accident "arising out of and in the course of [her]
employment," Code § 65.2-101. The issue here is whether the
injury arose out of her employment. "Whether an injury arises
out of the employment is a mixed question of law and fact and is
reviewable by the appellate court." Plumb Rite Plumbing v.
Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305 (1989). However,
unless we conclude as a matter of law that Peck's evidence
sustained her burden of proof, the commission's findings are
binding and conclusive upon us. Tomko v. Michael's Plastering
Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Peck must establish "that the conditions of the workplace or
some significant work related exertion caused the injury." Plumb
Rite Plumbing v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305,
306 (1989). In denying Peck's application, the commission
stated:
We disagree with the Deputy
Commissioner's determination that [Peck's]
injury arose out of her employment. [Peck]
was merely turning at the time of her injury.
Unlike the claimants in Brown, Inc. v.
Caporaletti, 12 Va. App. 242, 402 S.E.2d 709(1991) and Grove v. Allied Signal, Inc., 15
Va. App. 17, 421 S.E.2d 32 (1992), [Peck] was
neither in an awkward position nor engaged in
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any extraordinary or unusual exertion.
In other words, the commission found that unlike the
claimants in Caporaletti and Grove, Peck's voluntary act of
turning her body slightly to the right to reach for the orange
involved no awkward position, extraordinary or unusual exertion,
or other hazardous circumstances peculiar to her workplace.
We do not find any support for Peck's argument that, as a
matter of law, the configuration of the furniture in her
workplace constituted a hazard peculiar to her employment which
caused her injury. The evidence did not show, as a matter of
law, that Peck was confined in her chair to such an extent that
she could not get up and move around within her workplace. The
evidence did not require a finding that it was necessary for Peck
to contort her body to retrieve her afternoon snack, and the
commission could have found that merely turning her body
"slightly to the right" was not significant or unusual exertion.
In other words, Peck's injury did not have its origin in a work-
related hazard. We are, therefore, unable to find that Peck
proved as a matter of law that her injury arose out of her
employment.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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