COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Fitzpatrick 

CHARLOTTE M. PECK 

v. Record No. 0165-95-3 MEMORANDUM OPINION*

 PER CURIAM 

TULTEX CORPORATION FEBRUARY 13, 1996 

AND 

KEMPER NATIONAL INSURANCE COMPANIES 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 James B. Feinman, for appellant. 

 Gregory T. Casker (Martha White Medley; 

Daniel, Vaughan, Medley & Smitherman, on 

brief), for appellees. 

 Charlotte M. Peck appeals the ruling by the Workers' 

Compensation Commission that her back injury did not arise out of 

her employment with Tultex Corporation. We affirm the 

commission's decision. 

 Peck worked for Tultex as a sewing machine operator for nine 

years. Peck described her work station as consisting of a sewing 

machine positioned on a table in front of her with an eighteeninch wide work bench located six inches to her right and an 

eighteen-inch wide work bench located six inches to her left. To 

perform her job duties, Peck sat in a wooden back chair. She 

placed her legs in front of her and under the sewing machine 

table. Peck's chair did not have arms or rollers, and it did not 

swivel. She kept her right foot on the sewing machine pedal and 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

 

her left foot rested on the floor. There was an on/off box 

located on the right underside of the sewing machine table. 

There was another sewing machine table located two to three feet 

behind Peck. 

 Peck testified that, on July 22, 1993 at approximately 

3:00 p.m., she received five bundles of sweatshirts to sew. She 

placed two of the bundles on the right work bench and two of the 

bundles on the left work bench. She put the remaining bundle on 

her table. She untied the bundle and placed a ticket in her left 

hand. At that time, she decided to eat her afternoon snack, an 

orange.1

 As she sat in her chair with her legs under the sewing 

machine table, she turned her upper body "slightly" to the right 

to pick up the orange that was located on the work bench. It is 

unclear from the record whether the orange was six or eighteen 

inches away from Peck. As she turned her upper body and before 

she picked up the orange, something "popped" in her lower back 

and she experienced significant pain. 

 Peck stated that she could not move her legs at the time she 

attempted to retrieve the orange because she was sitting with her 

legs under the sewing machine table and her right knee would have 

hit the on/off box. Peck testified that the work benches and the 

on/off switch restricted her movement. However, she admitted 

that there was nothing to prevent her from moving her chair back 

 1The employer permitted its employees to eat food while they 

were working. 
 3 

two to three feet and getting up from her chair to retrieve the 

orange. 

 Peck promptly reported the back injury to her supervisor. 

Peck was diagnosed as suffering from a lumbar strain. She was 

out of work until September 27, 1993. 

 To recover benefits, Peck must establish that she suffered 

an injury by accident "arising out of and in the course of [her] 

employment," Code § 65.2-101. The issue here is whether the 

injury arose out of her employment. "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 v. 

Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305 (1989). However, 

unless we conclude as a matter of law that Peck's evidence 

sustained her burden of proof, the commission's findings are 

binding and conclusive upon us. Tomko v. Michael's Plastering 

Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). 

 Peck must establish "that the conditions of the workplace or 

some significant work related exertion caused the injury." Plumb 

Rite Plumbing v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 

306 (1989). In denying Peck's application, the commission 

stated: 

 We disagree with the Deputy 

Commissioner's determination that [Peck's] 

injury arose out of her employment. [Peck] 

was merely turning at the time of her injury. 

 Unlike the claimants in 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), [Peck] was 

neither in an awkward position nor engaged in 
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any extraordinary or unusual exertion. 

 In other words, the commission found that unlike the 

claimants in Caporaletti and Grove, Peck's voluntary act of 

turning her body slightly to the right to reach for the orange 

involved no awkward position, extraordinary or unusual exertion, 

or other hazardous circumstances peculiar to her workplace. 

 We do not find any support for Peck's argument that, as a 

matter of law, the configuration of the furniture in her 

workplace constituted a hazard peculiar to her employment which 

caused her injury. The evidence did not show, as a matter of 

law, that Peck was confined in her chair to such an extent that 

she could not get up and move around within her workplace. The 

evidence did not require a finding that it was necessary for Peck 

to contort her body to retrieve her afternoon snack, and the 

commission could have found that merely turning her body 

"slightly to the right" was not significant or unusual exertion. 

 In other words, Peck's injury did not have its origin in a workrelated hazard. We are, therefore, unable to find that Peck 

proved as a matter of law that her injury arose out of her 

employment. 

 For the reasons stated, we affirm the commission's decision. 

 Affirmed.