Opinion
Record No. 0582-93-1
September 28, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Gary P. Arsenault; Courtney E. Mercer; Mercer, Grey Arsenault, on brief), for appellant.
(William L. Dudley, Jr.; Lawrence A. Dunn; Knight, Dudley, Dezern Clarke, on brief), for appellees.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
The sole issue on this appeal is whether Alan W. Lowe's back injury arose out of his employment. To recover benefits, Lowe must establish that he suffered an injury by accident "arising out of and in the course of his employment," Code § 65.2-101, and "that the conditions of the workplace or some significant work related exertion caused the injury." Barbour, 8 Va. App. at 484, 382 S.E.2d at 306. "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 Plumbing Serv. v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305, 305 (1989) (citation omitted). However, unless we conclude as a matter of law that Lowe sustained his 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 denying Lowe's application the commission stated that:
[T]he claimant engaged in ordinary bending which was not associated with lifting and which is not shown by the evidence to result from a hazard of the employment. The existence of a prior back injury and fusion does not preclude a finding of new back injury, but such condition places upon the claimant in this circumstance the burden to show that his injury resulted from a hazard of the employment and not just ordinary exertion.
The finding that Lowe was merely bending down at the time of his injury and was not involved in any unusual exertion, awkward position or other employment hazard 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).
Lowe testified that he injured his lower back when he "bent over in a quick motion, bending from [his] waist to put [a nylon] strap under [a] cabinet." In a telephone interview with a claims adjuster several days following the injury, Lowe recalled that he "stretched the strap out" and his back "hurt" when he "bent over to slide the strap." He stated that his arms were extended six to eight inches as he reached for the strap and he had nothing in his hands. Three days after the injury, Lowe reported to Dr. Irwin McNeely that he had experienced sudden low back and left posterior leg pain while "bending forward and to the left in a somewhat twisted position." Dr. McNeely noted that Lowe was bending at the time, not lifting or pulling.
The commission, in its role as fact finder, simply accorded greater weight to Lowe's statements made during the telephone interview and as part of the medical history than to his hearing testimony. Both the telephone interview and the medical records reflect that Lowe merely bent over to move the strap and experienced pain.
Unlike the claimants in 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), Lowe did not engage in 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 the pain. In Grove, the claimant had worked in a crouched position several feet off the ground and experienced sharp pain as he reached for a pipe. Lowe's action of bending involved no awkward position, extraordinary exertion or other hazardous circumstances peculiar to his employment. We are, therefore, unable to find as a matter of law that Lowe met his burden of proving that his injury arose out of his employment.
Finally, we do not agree with Lowe's assertion that the commission required a greater burden of proof because he had a pre-existing back injury. The commission, in noting that Lowe was required to establish that his injury resulted from a hazard of the employment and not just ordinary exertion, merely reiterated the rule which is applicable to all claimants.
Accordingly, we affirm the decision of the commission.
Affirmed.