COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Frank and Humphreys 

Argued at Richmond, Virginia 

DENNIS LEWIS 

 MEMORANDUM OPINION* BY 

v. Record No. 1335-01-2 JUDGE ROBERT P. FRANK 

 MARCH 5, 2002 

ARBY'S OF EMPORIA AND 

 TIG INDEMNITY COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Louis D. Snesil for appellant. 

 Joseph F. Giordano (Thomas E. Dempsey; 

Semmes, Bowen & Semmes, on brief), for 

appellees. 

 Dennis Lewis (claimant) appeals a decision of the Workers' 

Compensation Commission (commission) denying his claim for 

benefits. Claimant contends the commission erred in (1) finding 

his injury did not arise out of his employment where he was 

injured while bent at the waist to sweep under a low counter, 

and (2) failing to enter an award for temporary total disability 

benefits. Finding no error, we affirm the commission. 

BACKGROUND

 The facts are not controverted. Claimant was employed by 

Arby's as a cook. He defined the work as not strenuous and not 

requiring much lifting. On the evening of July 18, 1999, 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
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claimant was sweeping at the restaurant when he endeavored to 

sweep underneath the "back line," which, according to claimant, 

consisted of a fifteen-foot long, waist-high counter with 

approximately six inches of clearance underneath. Claimant, who 

is 5'10" tall, testified he intermittently bent "very low" from 

the waist to sweep underneath the back line, over the course of 

about two minutes. He used a "regular broom," approximately 

three feet in length. 

 He straightened up after sweeping for about thirty seconds 

and felt a sharp pain in his lower back. After claimant rested 

for a few minutes, the pain subsided, and he was able to 

continue his shift. Claimant continued to work during the 

ensuing weeks, although he was never pain-free, and he missed 

occasional days from work because of back pain. Claimant ceased 

working in September when the pain became too intense. 

 The full commission affirmed the deputy commissioner's 

determination that claimant failed to establish a compensable 

injury by accident. 

ANALYSIS

 On appeal, we view the evidence in the light most favorable 

to the party prevailing below – employer, in this instance. See

Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 

339 S.E.2d 916, 916 (1986). Factual findings by the commission, 

supported by credible evidence, are conclusive and binding upon 
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this Court on appeal. See Rose v. Red's Hitch & Trailer Servs., 

Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395 (1990). 

 "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) 

(citations omitted). "The phrase arising 'in the course of' 

refers to the time, place, and circumstances under which the 

accident occurred," while "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 
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relationship.'" Johnson, 237 Va. at 183-84, 376 S.E.2d at 75 

(quoting United Parcel Serv. v. Fetterman, 230 Va. 257, 258-59, 

336 S.E.2d 892, 893 (1985)). 

 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 (1995). 

 Generally, simple acts of walking, bending, or turning, 

without other contributing environmental factors, are not risks 

of employment. Southside Virginia Training Center v. Ellis, 33 

Va. App. 824, 829, 537 S.E.2d 35, 37 (2000). Claimant contends, 

however, that since he had to bend over to sweep under the 

counter, he performed his task in an "awkward position." He 

cites Richard E. 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), to support his position. 

 In Caporaletti, a worker had lowered a 100-pound furnace 

and leaned over it for approximately four to five minutes, 

cutting and fitting the furnace into place. As he attempted to 

stand, he was injured. This Court held that lowering the 

furnace and working over it for four to five minutes involved 

risks which were encountered solely due to the nature of the 

job. Caporaletti, 12 Va. App. at 245, 402 S.E.2d at 711. We 

characterized his work as involving "unusual exertion." Id.

 In Grove, a pipe-fitter was working "in a crouched position 

several feet off the ground" when he reached for an eight-pound 
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piece of pipe and ruptured a disc in his back. 15 Va. App. at 

18, 421 S.E.2d at 33. Finding Grove performed his task in an 

"awkward position," we held, "'[t]o constitute injury by 

accident it is not necessary that there should be an 

extraordinary occurrence in or about the work engaged in.'" Id.

at 21-22, 421 S.E.2d at 35 (citing Kemp v. Tidewater Kiewit, 7 

Va. App. 360, 363, 373 S.E.2d 725, 726 (1988)). The evidence 

was sufficient "'even though the degree of exertion is usual and 

ordinary.'" Id. at 22, 421 S.E.2d at 35 (citing Kemp, 7 Va. 

App. at 363, 373 S.E.2d at 726). 

 Claimant also cites Ogden Allied Aviation Servs. v. Shuck, 

18 Va. App. 756, 446 S.E.2d 898 (1994) (en banc), and 

Bassett-Walker, Inc. v. Wyatt, 26 Va. App. 87, 493 S.E.2d 384 

(1997) (en banc). These cases involved injuries caused by 

engaging in an "awkward position" while performing work-related 

tasks. 

 In Ogden, Shuck was an aircraft refueler whose job 

"involved connecting fuel hoses" to aircraft and observing "fuel 

gauges in the underside of the aircraft's wings to determine 

when the aircraft was completely fueled." 18 Va. App. at 757, 

446 S.E.2d at 898. On the date of the injury, Shuck looked 

directly overhead "in an unusual or awkward position" and heard 

a "pop" in his neck. Id. We held that, while "the act of 

looking up is a common occurrence that most people do daily," 

Shuck's work required looking directly overhead in "a movement 
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far different from looking up in a way that would be commonplace 

to the general public." Id. at 758, 446 S.E.2d at 899. 

 Similarly, in Bassett-Walker, Wyatt's job required her to 

perform repetitious work in an awkward position. Wyatt was 

required to perform deep knee bends with her weight on her heels 

and her knees not touching the floor while her "rear-end [was] 

lower than [her] knees" in order to re-load her knitting 

machine. 26 Va. App. at 91, 493 S.E.2d at 386. She had to 

perform these deep knee bends approximately 200 times in each 

twelve-hour shift. Id. We held that a causal connection 

existed between the unique demands of operating the knitting 

machine and her knee injury. Id. at 93, 493 S.E.2d at 387. 

 In each of these cases cited by claimant, a compensable 

"bending" injury was based on an "awkward position," "unusual 

exertion," or repetitive motion. The facts here, however, 

indicate claimant bent over intermittently for two minutes to 

sweep under a counter, with the last incident of bending lasting 

approximately thirty seconds. There was no "awkward position" 

or "unusual exertion." Therefore, we believe that the facts in 

Ellis, 33 Va. App. 824, 537 S.E.2d 35, control. 

 Ellis was a truck driver who drove to various buildings and 

collected slotted carts filled with empty food trays. Id. at 

826, 537 S.E.2d at 36. He injured his back when, at one of the 

buildings, he bent from the waist to place a tray in a slot 

approximately twelve inches above floor level. Id. at 827, 537 
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S.E.2d at 36. We held the injury did not arise out of 

employment, stating: 

The action of bending was neither unusual, 

awkward, nor something that Ellis was 

required to do on a repetitive basis. Grove 

v. Allied Signal, Inc., 15 Va. App. 17, 

21-22, 421 S.E.2d 32, 34-35 (1992); see also

Vint, 32 Va. App. at 65-66, 526 S.E.2d at 

297-98. In such cases, we have held that 

"[a]n injury resulting from merely bending 

over to do something does not arise out of 

the employment . . . [because] merely 

bending over is a risk to which the general 

public is equally exposed." Vint, 32 Va. 

App. at 65-66, 526 S.E.2d at 297-98. 

Id. at 829-30, 537 S.E.2d at 37 (footnote omitted). 

 Claimant's act of bending over to sweep under the counter 

was neither unusual, awkward, nor strenuous, but was a risk to 

which the general public is exposed. The injury was not caused 

by the workplace itself. 

 Because we conclude that claimant's injury did not arise 

out of his employment, we do not address the issue of 

disability. We, therefore, affirm the commission's denial of 

compensation. 

Affirmed.