Opinion
Record No. 0117-94-3
Decided: July 12, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(Richard M. Thomas; Rider, Thomas, Cleaveland, Ferris Eakin, on briefs), for appellant.
(Richard D. Lucas; Woods, Rogers Hazlegrove, on brief), for appellees.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Dorothy L. Conley contends that the Workers' Compensation Commission erred in finding that her back injury did not arise out of her 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. Rule 5A:27.
To recover benefits, Conley must establish that she suffered an injury by accident "arising out of and in the course of [her] employment," Code Sec. 65.2-101, and "that the conditions of the workplace or some significant work related exertion caused the injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). "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). "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, 8 Va. App. at 483, 382 S.E.2d at 305. However, unless we conclude as a matter of law that Conley sustained her burden of proof, then the commission's finding is binding and conclusive on appeal. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In reversing the deputy commissioner and denying Conley's application, the full commission stated that:
The injury itself and resulting disability are well established by the record. However, we do not agree with the Deputy Commissioner's finding that the claimant's injury was caused by a risk of her employment. Although she was squatting or arising at the time she noticed the sudden onset of low back pain, there is nothing in the record to establish that she was in an awkward, unusual, or strenuous position. The claimant had completed the simple maneuver of squatting, removing items from her locker, and standing.
Conley testified that, on December 23, 1993, while at work, she squatted to get coffee and a notebook out of her locker. After she squatted, she opened the combination lock and picked up a half-full five pound can of coffee and a composition notebook. As she started to rise from the squatting position, she experienced a sudden onset on pain in her back and left leg. She testified that she did not know how long she remained in the squatting position.
The January 18, 1993 office note of Dr. Kenneth W. Gray, the treating orthopedic surgeon, relates a history of Conley bending to get something out of her locker and then not being able to straighten up.
An injury, such as Conley's back injury, that results from merely squatting, absent evidence that the conditions of the workplace or that some significant work-related exertion caused the injury, is not compensable. Plumb Rite, 8 Va. App. at 484, 382 S.E.2d at 306. Unlike the claimant in Richard E. Brown, Inc. v. Caporaletti, 12 Va. App. 242, 402 S.E.2d 709 (1991), a case cited by claimant in her opening brief, Conley did not engage in any unusual exertion. In Caporaletti, the claimant had lowered a 100 pound furnace, and then leaned over it for four to five minutes, cutting and fitting it into place, before he felt pain. Conley's action of squatting and rising involved no awkward position, extraordinary exertion, or other hazardous circumstances peculiar to her employment. We are, therefore, unable to find as a matter of law that Conley met her burden of proving that her injury arose out of her employment.
Since our ruling on the "arising out of" issue disposes of this appeal, we decline to address the remaining issues presented by the parties in their briefs. For the reasons stated, we affirm the commission's decision.
Affirmed.