Douglas Delton Turner, etc v. Commonwealth Bolt et

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Kelsey and Senior Judge Hodges
DOUGLAS DELTON TURNER (DECEASED),
BY CONNIE TURNER (WIDOW)
MEMORANDUM OPINION*
v. Record No. 0676-02-3 PER CURIAM
OCTOBER 8, 2002
COMMONWEALTH BOLT, INC. AND
ASSOCIATED INDEMNITY CORPORATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Connie Turner, pro se, on brief).
No brief for appellees.
Douglas Delton Turner (deceased), employee, and Connie
Turner (widow), claimant, contend the Workers' Compensation
Commission erred in finding that claimant failed to prove that
the deceased employee sustained an injury by accident arising
out of his employment on February 20, 2001 and that his
subsequent death on February 26, 2001 was caused by his
employment. Upon reviewing the record, opening brief, and
employer's motion to dismiss, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the
commission's decision. Rule 5A:27. 1
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Because we summarily affirm the commission's decision, we
will deny the motion to dismiss.
In reaching its conclusion that claimant failed to
establish that the deceased employee sustained an injury by
accident arising out of his employment, the commission made the
following findings:
[W]e note that all of the relevant testimony
and medical evidence establishes that Mr.
Turner's neck popping incident on February
20, 2001, resulted from his simple bending
over to pick up a shop light. There is no
evidence that he was in a bent or crouched
position when he reached for the light, or
that his work even required that he assume
such a position.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
"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).
"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).
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
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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
relationship.'" Johnson, 237 Va. at 183-84, 376 S.E.2d at 75
(citation omitted).
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 Ctr. v. Ellis, 33
Va. App. 824, 829, 537 S.E.2d 35, 37 (2000).
Claimant's statements to his co-worker and his wife before
his death, as well as the medical histories, provide ample
support for the commission's factual findings. The evidence
established that something "popped" in the deceased employee's
neck when he simply bent over to pick up a shop light. No
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evidence showed that he was required to assume an "awkward
position" while bending or that he engaged in any "unusual
exertion" or repetitive motion. The deceased employee had not
been working in a bent or awkward position for any specific
period of time. The deceased employee's act of bending was
neither unusual, awkward, nor strenuous, but was a risk to which
the general public is exposed.
Accordingly, we affirm the commission's finding that
claimant failed to prove that the deceased employee sustained an
injury by accident arising out of his employment. Because we
affirm that finding, we need not address the causation issue.
Affirmed.
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