COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Willis and Bray 

Argued at Norfolk, Virginia 

B & F CONTRACTING CORPORATION and 

 ROYAL INSURANCE COMPANY OF AMERICA 

v. Record No. 1762-94-1 MEMORANDUM OPINION* BY 

 JUDGE RICHARD S. BRAY 

JOSEPH F. BEITLER JUNE 13, 1995 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 W. Glover Garner, Jr. (Marshall, Blalock & Garner, 

 on briefs), for appellants. 

 William M. McKee (Timothy T. Blank; Lowell A. Stanley, 

 on brief), for appellee. 

 B & F Contracting Corporation and Royal Insurance Company of 

America (together "employer") challenge the commission's finding 

that Joseph F. Beitler (claimant) suffered a compensable injury, 

arguing that the evidence was insufficient to support the award. 

 We disagree and affirm the decision of the commission. 

 The parties are fully conversant with the record in this 

case, and we recite only those facts necessary to explain our 

holding. Under familiar principles, we must consider the 

evidence in the light most favorable to the prevailing party 

below, claimant in this instance. Crisp v. Brown's Tysons Corner 

Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). 

 "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); see

 

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

designated for publication. 
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Code § 65.2-101. An "injury by accident" requires "(1) an 

identifiable incident; (2) that occurs at some reasonably 

definite time; (3) an obvious sudden mechanical or structural 

change in the body; and (4) a causal connection between the 

incident and the bodily change." Chesterfield County v. Dunn, 9 

Va. App. 475, 476, 389 S.E.2d 180, 181 (1990). "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). 

 Thus, 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. "The actual determination of causation is a factual finding 

that will not be disturbed on appeal," if supported by credible 

evidence. Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 

S.E.2d 814, 817 (1989); Code § 65.2-706. However, "[w]hether an 

injury arises out of and in the course of employment is a mixed 

question of law and fact . . . , reviewable on appeal." Jones v. 

Colonial Williamsburg Found., 8 Va. App. 432, 434, 382 S.E.2d 

300, 301 (1989). 

 Here, claimant was clearing "trash" and "weeds" from 
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employer's "yard compound" in accordance with instructions. At 

1:10 p.m., claimant moved a "large barrel," weighing 

"approximately 100 pounds," in order to access and remove 

surrounding weeds. Although claimant recalled no discomfort or 

other sensation incidental to this effort, his neck began 

"burning and feeling stiff" at "about" 2:30 p.m. Within an hour, 

claimant reported these symptoms to two supervisors, explaining 

to each that "he hurt himself moving the barrel." This evidence 

was corroborated by both superintendents in testimony before the 

commission. 

 Although claimant was initially diagnosed with "acute neck 

strain," a subsequent MRI revealed "a right sided disc herniation 

at the C5-6 level," with "a mildly bulging disc at the C3-4 

level." In later correspondence, Dr. Richard McAdam, the 

treating neurosurgeon, opined that this pathology was "causally 

related" to the "lifting incident" with the barrel and consistent 

with the delayed onset of claimant's attendant symptoms. 

 Therefore, the testimony of claimant, his supervisors and 

Dr. McAdam, together with the other evidence before the 

commission, established that claimant suffered a sudden 

structural change in his cervical spine, while moving a weighty 

barrel on the premises of his employer incidental to his duties 

of employment. See Pence Nissan Oldsmobile v. Oliver, ___ Va. 

App. ___, ___, ___ S.E.2d ___, ___ (1995). Such evidence 

supported the commission's finding of compensable injury by 

accident and the related award. 
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 Accordingly, we affirm the decision of the commission. 

 Affirmed.
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MOON, C.J., dissenting. 

 I respectfully dissent because claimant's testimony at 

hearing did not describe an identifiable incident that 

constituted an "accident" within the meaning of that term in 

workers' compensation law. See Morris v. Morris, 238 Va. 578, 

385 S.E.2d 858 (1989). He testified that he moved a barrel out 

of the way in order to cut weeds and that he then moved the 

barrel back into place. He testified "I reached down, I grabbed 

the barrel, moved one side and then moved the other side, then 

cut the weeds down and then moved the barrel back in place." He 

said that he felt "nothing." This was at 1:00 p.m. He continued 

to use the weed-eater. He "got back to Newsome Park at 2:30 

p.m." He got ready to sit down and his neck "was burning" and 

got "real stiff." He figured it was just a "stiff neck . . . 

from sleeping on it wrong." He does not describe any "lifting" 

incident to support the doctor's conclusion that he sustained an 

injury by accident while lifting a barrel. Because no credible 

evidence supports the commission's award, I would reverse it.