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BICKELL v. LAKE TAYLOR HOSPITAL, et al.


BICKELL v. LAKE TAYLOR
HOSPITAL, et al.

(unpublished)


NOVEMBER 24, 1998

Record No. 1328-98-1

 

JERRY ANNE BICKELL

v.

LAKE TAYLOR HOSPITAL AND

HEALTHCARE PROVIDERS
GROUP

SELF-INSURANCE
ASSOCIATION

 

MEMORANDUM OPINION[1] PER CURIAM

FROM THE VIRGINIA
WORKERS’ COMPENSATION COMMISSION

Present: Judges Benton,
Coleman and Willis

Kirk Whitworth; Joynes
& Marcari, on brief), for appellant.

(Andrea L. Bailey; Crews
& Hancock, on brief), for appellees.


Jerry Anne Bickell
contends that the Workers’ Compensation Commission erred in
finding she failed to prove an injury by accident arising out of
her employment on March 15, 1996. 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. See Rule 5A:27.

To recover benefits,
Bickell must establish that she suffered an "injury by
accident arising out of and in the course of [her] employment." Code Sect. 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). It requires proof "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). Furthermore, the
commission’s determination that the evidence failed to prove
"an injury arising 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.

On appeal, we view the
evidence in the light most favorable to the party prevailing
below. See R.G. Moore Bldg. Corp. v. Mullins, 10
Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). In denying
Bickell’s application, the commission found as follows:

[W]e are persuaded
that the accident occurred as described by [Bickell] both at
the hearing and in her recorded statement. [Bickell] was
standing, both feet flat on the floor, slightly bent at the
waist with her arms outstretched in preparation to lift the
patient. She had not lifted the patient or exerted any effort
in preparation to do so. [Bickell] was not in an awkward
position but was simply standing flat-footed. She had sought
medical treatment for her ankle the day before, and she has
not described any work-related cause for her ankle injury.

Credible evidence in the
record established that Bickell was standing flat-footed in
preparation for lifting the patient. She was not in an awkward
position and did not engage in any significant exertion. Thus, no
condition or hazard peculiar to Bickell’s workplace caused her
injury.

The commission correctly
rejected Patsy Meseroll’s testimony. Her testimony that Bickell
was actually lifting the patient, contradicted Bickell’s own
testimony. Under the doctrine enunciated in Massie v.
Firmstone
, 134 Va. 450, 462, 114 S.E. 652, 656 (1922),
Bickell could not rise above her own testimony, which was
insufficient to prove an injury by accident arising out of her
employment. Therefore, we hold that Bickell failed to prove as a
matter of law that her injury arose out of her employment.

For these reasons, we
affirm the commission’s decision.

Affirmed.

 

 

 

FOOTNOTES:

[1] Pursuant to Code Sect. 17-116.010 this
opinion is not designated for publication.

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