Dennis Lewis v. Arby's of Emporia and TIG Indemnity ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Richmond, Virginia
DENNIS LEWIS
MEMORANDUM OPINION* BY
v. Record No. 1335-01-2 JUDGE ROBERT P. FRANK
MARCH 5, 2002
ARBY'S OF EMPORIA AND
TIG INDEMNITY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Louis D. Snesil for appellant.
Joseph F. Giordano (Thomas E. Dempsey;
Semmes, Bowen & Semmes, on brief), for
appellees.
Dennis Lewis (claimant) appeals a decision of the Workers'
Compensation Commission (commission) denying his claim for
benefits. Claimant contends the commission erred in (1) finding
his injury did not arise out of his employment where he was
injured while bent at the waist to sweep under a low counter,
and (2) failing to enter an award for temporary total disability
benefits. Finding no error, we affirm the commission.
BACKGROUND
The facts are not controverted. Claimant was employed by
Arby's as a cook. He defined the work as not strenuous and not
requiring much lifting. On the evening of July 18, 1999,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
claimant was sweeping at the restaurant when he endeavored to
sweep underneath the "back line," which, according to claimant,
consisted of a fifteen-foot long, waist-high counter with
approximately six inches of clearance underneath. Claimant, who
is 5'10" tall, testified he intermittently bent "very low" from
the waist to sweep underneath the back line, over the course of
about two minutes. He used a "regular broom," approximately
three feet in length.
He straightened up after sweeping for about thirty seconds
and felt a sharp pain in his lower back. After claimant rested
for a few minutes, the pain subsided, and he was able to
continue his shift. Claimant continued to work during the
ensuing weeks, although he was never pain-free, and he missed
occasional days from work because of back pain. Claimant ceased
working in September when the pain became too intense.
The full commission affirmed the deputy commissioner's
determination that claimant failed to establish a compensable
injury by accident.
ANALYSIS
On appeal, we view the evidence in the light most favorable
to the party prevailing below – employer, in this instance. See
Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504,
339 S.E.2d 916, 916 (1986). Factual findings by the commission,
supported by credible evidence, are conclusive and binding upon
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this Court on appeal. See Rose v. Red's Hitch & Trailer Servs.,
Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395 (1990).
"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)
(citations omitted). "The phrase arising 'in the course of'
refers to the time, place, and circumstances under which the
accident occurred," while "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
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
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relationship.'" Johnson, 237 Va. at 183-84, 376 S.E.2d at 75(quoting United Parcel Serv. v. Fetterman, 230 Va. 257, 258-59,
336 S.E.2d 892, 893 (1985)).
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 Center v. Ellis, 33
Va. App. 824, 829, 537 S.E.2d 35, 37 (2000). Claimant contends,
however, that since he had to bend over to sweep under the
counter, he performed his task in an "awkward position." He
cites Richard E. 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), to support his position.
In Caporaletti, a worker had lowered a 100-pound furnace
and leaned over it for approximately four to five minutes,
cutting and fitting the furnace into place. As he attempted to
stand, he was injured. This Court held that lowering the
furnace and working over it for four to five minutes involved
risks which were encountered solely due to the nature of the
job. Caporaletti, 12 Va. App. at 245, 402 S.E.2d at 711. We
characterized his work as involving "unusual exertion." Id.In Grove, a pipe-fitter was working "in a crouched position
several feet off the ground" when he reached for an eight-pound
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piece of pipe and ruptured a disc in his back. 15 Va. App. at
18, 421 S.E.2d at 33. Finding Grove performed his task in an
"awkward position," we held, "'[t]o constitute injury by
accident it is not necessary that there should be an
extraordinary occurrence in or about the work engaged in.'" Id.
at 21-22, 421 S.E.2d at 35 (citing Kemp v. Tidewater Kiewit, 7
Va. App. 360, 363, 373 S.E.2d 725, 726 (1988)). The evidence
was sufficient "'even though the degree of exertion is usual and
ordinary.'" Id. at 22, 421 S.E.2d at 35 (citing Kemp, 7 Va.
App. at 363, 373 S.E.2d at 726).
Claimant also cites Ogden Allied Aviation Servs. v. Shuck,
18 Va. App. 756, 446 S.E.2d 898 (1994) (en banc), and
Bassett-Walker, Inc. v. Wyatt, 26 Va. App. 87, 493 S.E.2d 384(1997) (en banc). These cases involved injuries caused by
engaging in an "awkward position" while performing work-related
tasks.
In Ogden, Shuck was an aircraft refueler whose job
"involved connecting fuel hoses" to aircraft and observing "fuel
gauges in the underside of the aircraft's wings to determine
when the aircraft was completely fueled." 18 Va. App. at 757,
446 S.E.2d at 898. On the date of the injury, Shuck looked
directly overhead "in an unusual or awkward position" and heard
a "pop" in his neck. Id. We held that, while "the act of
looking up is a common occurrence that most people do daily,"
Shuck's work required looking directly overhead in "a movement
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far different from looking up in a way that would be commonplace
to the general public." Id. at 758, 446 S.E.2d at 899.
Similarly, in Bassett-Walker, Wyatt's job required her to
perform repetitious work in an awkward position. Wyatt was
required to perform deep knee bends with her weight on her heels
and her knees not touching the floor while her "rear-end [was]
lower than [her] knees" in order to re-load her knitting
machine. 26 Va. App. at 91, 493 S.E.2d at 386. She had to
perform these deep knee bends approximately 200 times in each
twelve-hour shift. Id. We held that a causal connection
existed between the unique demands of operating the knitting
machine and her knee injury. Id. at 93, 493 S.E.2d at 387.
In each of these cases cited by claimant, a compensable
"bending" injury was based on an "awkward position," "unusual
exertion," or repetitive motion. The facts here, however,
indicate claimant bent over intermittently for two minutes to
sweep under a counter, with the last incident of bending lasting
approximately thirty seconds. There was no "awkward position"
or "unusual exertion." Therefore, we believe that the facts in
Ellis, 33 Va. App. 824, 537 S.E.2d 35, control.
Ellis was a truck driver who drove to various buildings and
collected slotted carts filled with empty food trays. Id. at
826, 537 S.E.2d at 36. He injured his back when, at one of the
buildings, he bent from the waist to place a tray in a slot
approximately twelve inches above floor level. Id. at 827, 537
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S.E.2d at 36. We held the injury did not arise out of
employment, stating:
The action of bending was neither unusual,
awkward, nor something that Ellis was
required to do on a repetitive basis. Grove
v. Allied Signal, Inc., 15 Va. App. 17,
21-22, 421 S.E.2d 32, 34-35 (1992); see also
Vint, 32 Va. App. at 65-66, 526 S.E.2d at
297-98. In such cases, we have held that
"[a]n injury resulting from merely bending
over to do something does not arise out of
the employment . . . [because] merely
bending over is a risk to which the general
public is equally exposed." Vint, 32 Va.
App. at 65-66, 526 S.E.2d at 297-98.
Id. at 829-30, 537 S.E.2d at 37 (footnote omitted).
Claimant's act of bending over to sweep under the counter
was neither unusual, awkward, nor strenuous, but was a risk to
which the general public is exposed. The injury was not caused
by the workplace itself.
Because we conclude that claimant's injury did not arise
out of his employment, we do not address the issue of
disability. We, therefore, affirm the commission's denial of
compensation.
Affirmed.
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