Douglas Wayne Basham v. Crestar Bank/SunTrust Bank ( 2001 )

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.'"
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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
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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
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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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