Jeffrey Mitchell Weakley v. T. A. Geer & Sons, etal ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Coleman
JEFFREY MITCHELL WEAKLEY
v. Record No. 1294-95-2 MEMORANDUM OPINION *
PER CURIAM
T. A. GEER & SONS, INC. OCTOBER 31, 1995
AND
LIBERTY MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(V. R. Shackelford, III; Shackelford, Honenberger,
Thomas, Willis & Gregg, on brief), for appellant.
(Susan A. Evans; Siciliano, Ellis, Dyer & Boccarosse,
on brief), for appellees.
Jeffrey Mitchell Weakley contends that the Workers'
Compensation Commission erred in finding that he failed to prove
an injury by accident arising out of his employment on
July 11, 1994. 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.
On appeal, we construe 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). To
recover benefits, Weakley must establish that he suffered an
injury by accident "arising out of and in the course of his
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
employment." Code § 65.2-101. "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
finding 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). However, unless we conclude
that Weakley proved, as a matter of law, that his employment
caused his injury, 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).
The commission denied Weakley's application on the ground
that his neck injury did not arise out of a risk or hazard
associated with his employment. In so ruling, the commission
found as follows:
[Weakley] described merely the simple
act of turning his head slightly to observe
another employee. He did not describe or
allege an awkward movement or one that
required especial exertion that could be
attributed to his work. We attach no
significance to the slightly "upright"
position about which he testified, since the
physicians did not comment about it in their
medical notes. We presume the physicians did
not consider it pertinent to the etiology of
injury, or that [Weakley] did not communicate
that fact to the physicians, presumably
because he considered it irrelevant, at least
until the hearing.
Although Weakley was performing a work-related activity when
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the injury occurred, no condition of the workplace or additional
exertion necessitated by work, aside from the usual act of
turning one's head to look at another person, caused the injury.
The commission also found that Weakley's subsequent pulling of
the cable did not constitute the happening of the injury or any
compensable aggravation of the original injury. This finding is
supported by Weakley's testimony and by the medical records,
which attribute Weakley's neck injury to his act of turning his
head. We are, therefore, unable to find that Weakley proved as a
matter of law that his injury arose out of his employment. For
the reasons stated, we affirm the commission's decision.
Affirmed.
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