Opinion
Record No. 2229-92-1
February 16, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Mary G. Commander; Goldblatt, Lipkin Cohen, on brief), for appellant. Appellant submitting on brief.
(Frederick M. Bruner; Law Offices of E. Wayne Powell, on brief), for appellees. Appellees submitting on brief.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Scott D. Corsar appeals from a decision of the Workers' Compensation Commission, reversing the opinion of the deputy commissioner, and denying him benefits for an injury sustained in an industrial accident while he was employed by Atlantic Teleco. Corsar contends that the commission erred in holding that his injury did not arise out of his employment. We find no error and affirm the commission's decision.
On November 14, 1991, Corsar was employed by Atlantic Teleco as a pay phone technician. His duties involved installing, collecting, cleaning and repairing telephones. On that date, in the course of driving his van while at work, he travelled into a crime-ridden part of town, and reached over the passenger seat to raise the van's passenger side window. When Corsar reached over to roll up the window, he felt a pull or a pain in his back. He then turned around while driving, reached behind his seat and leaned down in order to grab some coin cans. At that point, he felt additional pain and felt as if he was stuck in this position. The pain was in Corsar's lower back at waist level. He pulled over to the side of the road for a couple of minutes to relax and to get back into the position to drive. His pain continued for the rest of the day and the next day.
Corsar admits that he first felt the lower back pain when he reached over and rolled up the window. His first medical treatment was on November 18, 1991, with Dr. Loxley, an orthopedic surgeon. He had been treated by Dr. Loxley earlier in 1991 for back pain. His last visit to Dr. Loxley prior to the November 14, 1991 incident was on August 30, 1991.
Corsar maintains that his injury is compensable regardless of whether the reach for the window, the reach for the coin boxes, or the total process was the precipitating force. We disagree.
On appellate review, we construe the evidence in the light most favorable to the party who prevailed before the commission.R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212 , 390 S.E.2d 788, 788 (1990). Unless we can say, as a matter of law, that Corsar's evidence was sufficient to meet his burden of proof, the commission's finding is binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
A finding by the commission that an injury did or did not arise out of and in the course of the employment is a mixed finding of law and fact and is properly reviewable on appeal.City of Richmond v. Braxton, 230 Va. 161, 163-64, 335 S.E.2d 259, 261 (1985). 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). To prevail, Corsar must "show that the conditions of the workplace or that 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).
Corsar relies upon Grove v. Allied Signal, Inc., 14 Va. App. ___, 421 S.E.2d 32 (1992); Richard E. Brown, Inc. v. Caporaletti, 12 Va. App. 242, 402 S.E.2d 709 (1991); andKemp v. Tidewater Kiewit, 7 Va. App. 360, 373 S.E.2d 725 (1988), in support of his argument that his injury arose out of his employment. In Grove, the claimant, a plumber, was working on pipes in a crouched or bending position several feet off the ground and, while reaching for an eight pound piece of pipe, sustained an injury. 14 Va. App. at ___, 421 S.E.2d at 33. InCaporaletti, the claimant was exposed to a danger peculiar to his work. He was injured when he was installing a 100 pound furnace in the basement of a commercial building. He was required to lower the furnace on its side and then lean over it for approximately four to five minutes, cutting and fitting the furnace into place. He then attempted to stand up, but was unable to do so. 12 Va. App. at 243, 402 S.E.2d at 710. InKemp, while the claimant was working thirty feet above the ground, he crawled over the top of a column, and while in a fully extended position, was injured when he reached to attach his lanyard to a safety line. 7 Va. App. at 361-62, 373 S.E.2d at 725.
Corsar first experienced pain when he reached over the passenger seat and lowered the passenger side window on his van. The simple act of reaching over to roll up the window was an act to which the claimant was equally exposed to apart from his conditions of employment, unlike the dangers to which the claimants in Grove, Caporaletti and Kemp were exposed. The danger to which Corsar was exposed was not peculiar to his work. The activity of rolling up the window did not involve any unusual exertion or awkward positioning. Therefore, we agree with the commission's finding that the claimant's injury, resulting from reaching over to roll up the van window, did not result from the performance of any activity that was awkward or peculiar to his employment.
Accordingly, we affirm the commission's finding that Corsar's injury did not arise out of his employment.
Affirmed.