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the Virginia Court of Appeals.
THE GAP, INC., et al.
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Record No. 1896-03-4
BRENDA D. COATES
THE GAP, INC. AND
INSURANCE CO. OF THE STATE OF PENNSYLVANIA
NOVEMBER 12, 2003
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Lawrence J. Pascal; Ashcraft & Gerel, LLP, on brief), for
(Clinton R. Shaw, Jr.; Jordan Coyne & Savits, L.L.P., on
Brenda D. Coates (claimant) contends the Workers’ Compensation
Commission erred in
finding that she failed to prove she sustained an injury by
accident arising out of her employment
on June 2, 2001. Upon reviewing the record and the parties’
briefs, we conclude that this appeal
is without merit. Accordingly, we summarily affirm the
commission’s decision. Rule 5A:27.
Claimant, who worked as an associate manager at employer’s
Fair Oaks Mall store, had
suffered from back and right knee problems before June 2, 2001.
She had torn the meniscus in
her right knee, requiring surgery in November 2000 and February
2001. After she started
working for employer, she frequently complained of pain in her
right knee. She testified that
before working for employer, she had no problems with her left
knee. However, she admitted on
cross-examination that while working for employer, she had
"aches and pains" in her left knee,
but these were not similar to the pain in her right knee.
Claimant testified that on June 2, 2001, while she was unlocking
the cash register, an
associate asked her for journal tape. The journal tape was kept
in a locked drawer below the
register. Claimant took her key, bent down at the waist and
squatted to unlock the drawer.
While doing so, she placed most of her weight on her left leg
and kept her right knee straight
because she did not want to re-injure it. As she reached towards
the back of the drawer to
retrieve the journal tape, she heard a pop in her left knee.
Claimant testified that she reported the incident to her
coworkers and to Susan Massie,
the store manager. Claimant contends she left work early at
Massie’s suggestion. Claimant
sought medical care several days later from Dr. Richard L.
Gaertner, who had previously treated
her right knee problems.
In claimant’s July 27, 2001 recorded statement to the
insurance adjuster, claimant stated
that her accident occurred when she was trying to get the
journal tape from a drawer close to the
floor. She told the adjuster that she did not know how she bent
Massie, who had worked for employer as a store manager since
January 2001, testified
that claimant complained about pain in her "knees" on
a regular basis. Massie saw claimant
bend and stoop in a careful manner due to her knee problems. On
June 2, 2001, claimant
reported the incident to Massie, who did not complete an
accident report at the time because
claimant had an "ongoing issue with her knees," and
the complaint was similar to prior
complaints made by claimant.
Cheryl Lawson, a sales associate, confirmed that claimant
complained of pain in her knee
before June 2, 2001. Lawson could not remember which knee;
however, she stated that after
claimant’s February 2001 knee surgery, she started complaining
that the pain in the other knee
was getting worse.
Dr. Gaertner’s medical records indicate that claimant first
complained to him of left knee
pain on January 23, 2001, when he reported a history of claimant’s
continuing right knee
problems and "increasing pain and discomfort in her left
knee." Dr. Gaertner next examined
claimant on June 6, 2001. He reported at that time that
"[t]he other day she twisted her left knee
and felt a pop in it." He ordered an MRI, which showed a
tear of the posterior horn of the
medical meniscus of the left knee. On August 1, 2001, he
performed arthroscopic surgery on
claimant’s left knee. On February 5, 2002 and December 5,
2002, in response to questions posed
by claimant’s counsel, Dr. Gaertner causally related the need
for surgery to the June 2001
Based upon this record, the commission found as follows:
Regardless of whether the claimant suffers from a
pre-existing condition, she must prove that "a condition of
workplace either caused or contributed to her" accident. .
We have considered the record, including the testimony
and the photograph of the work area. The evidence shows that the
claimant’s left knee popped while she was bending down to
retrieve journal tape from a drawer close to the floor. We find
nothing unusual or awkward about the workplace configuration. A
drawer located close to the floor is common to the neighborhood
and does not constitute a work-related risk.
The evidence further shows that the claimant was bending
or squatting in a particular manner, holding her right leg
due to pre-existing right knee problems. However, we find that
squatting in this manner to accommodate the non-work-related
right knee injury was not necessitated by any hazard or
peculiar to the claimant’s employment.
"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 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
Generally, simple acts of walking, bending, or turning, without
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 testimony, her recorded statement, and the
photographs of the work area, as
well as the medical histories, provide ample support for the
commission’s factual findings. The
evidence established that claimant heard a pop in her left knee
when she simply bent down and
squatted to open a locked drawer that was close to the floor. No
evidence showed that she was
required to assume an "awkward position" while bending
due to a condition of her workplace or
that she engaged in any "unusual exertion." In
addition, unlike many of the cases relied upon by
claimant, in this case, no evidence showed that claimant was
required to work in a bent or
awkward position for any specific period of time as a condition
of her employment. Claimant’s
act of bending and squatting to open the drawer that was close
to the floor was neither unusual,
awkward, nor strenuous, but was a risk to which the general
public is exposed. Claimant’s
choice to hold her right leg in a certain manner when she bent
down was caused by her need to
accommodate her pre-existing non-work-related right knee
condition, not by any condition or
hazard associated with her workplace.
Accordingly, we affirm the commission’s finding that claimant
failed to prove that she
sustained an injury by accident arising out of her employment on
June 2, 2001.
Code ? 17.1-413, this opinion is not designated for publication.