COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Annunziata 

Argued at Salem, Virginia 

GOODYEAR TIRE & RUBBER CO., INC., ET AL. 

v. Record No. 1350-95-3 MEMORANDUM OPINION* BY 

 JUDGE ROSEMARIE ANNUNZIATA 

LARRY D. LANUM JUNE 18, 1996 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Martha White Medley (Daniel, Vaughan, Medley 

& Smitherman, P.C., on brief), for 

appellants. 

 No brief or argument for appellee. 

 Employer, Goodyear Tire & Rubber Co., Inc., appeals the 

decision of the Virginia Workers' Compensation Commission, 

awarding medical benefits to claimant, Larry D. Lanum. The 

commission found claimant suffered a compensable injury by 

accident arising out of and in the course of his employment. 

Employer contends claimant's injury did not "arise out of" his 

employment. Finding no error, we affirm. 

 Claimant's job duties included filing three-by-seven inch 

aperture cards in the bottom drawer of a knee-high cabinet for 

approximately ten to fifteen minutes each day.1

 In conducting 

this task, claimant bent at the waist, at approximately fortyfive degrees, and tilted his head back to see through his 

 

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

designated for publication. 

 1An aperture card is a small negative of a drawing. 
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bifocals. Claimant testified that on July 15, 1994 he 

experienced a sudden pain in his neck while in this position. He 

stated that the pain grew progressively worse the next day and 

through the summer and fall. Claimant's medical records also 

indicate that claimant's pain gradually intensified. 

 Following his injury, claimant continued to work and perform 

his usual tasks. Claimant first sought medical attention for his 

condition on August 10 from the plant dispensary where he 

complained of neck pain and numbness and tingling in his right 

shoulder. In September, Dr. Lawrence F. Cohen, claimant's 

attending physician, diagnosed claimant with a C3-4 herniated 

disk. Dr. Cohen's "Attending Physician's Report" notes that 

claimant's condition resulted from a hyperextension of his neck 

at work on July 15. Claimant subsequently underwent surgery. 

 The deputy commissioner found claimant suffered a 

compensable injury by accident arising out of and in the course 

of his employment. The deputy commissioner made specific 

findings that claimant was injured at work and that the injury 

was not a pre-existing condition. However, the deputy 

commissioner did not make a specific finding with respect to 

whether claimant's injury arose out of and in the course of 

employment. 

 The full commission affirmed. It found the evidence 

sufficient to establish the specific time and place of claimant's 

injury and further found that claimant's employment required him 
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to file the cards and required the work be performed in an 

unusual or awkward position. The ability to do the filing in a 

different manner was found to be of no consequence. 

 I. 

 "Injury by accident" is defined, within the context of the 

Workers' Compensation Act as "an identifiable incident or sudden 

precipitating event [that results] in an obvious sudden 

mechanical or structural change in the body." Morris v. Morris, 

238 Va. 578, 589, 385 S.E.2d 858, 865 (1989). By contrast, a 

gradually incurred injury is not an injury by accident within the 

meaning of the Act. Middlekauff v. Allstate Insurance Co., 247 

Va. 150, 154, 439 S.E.2d 394, 397 (1994). Though an injury by 

accident must be "`bounded with rigid temporal precision,' . . . 

[a]n injury need not occur within a specific number of seconds or 

minutes . . . but instead, must occur within a `reasonably 

definite time.'" Brown v. Caporaletti, 12 Va. App. 242, 243-44, 

402 S.E.2d 709, 710 (1991) (quoting Morris, 238 Va. at 589, 385 

S.E.2d at 865 (1989)). 

 On appeal, this Court construes the evidence in the light 

most favorable to the party prevailing below. R.G. Moore Bldg. 

Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 

(1990). The commission's findings of fact will be upheld if 

supported by credible evidence. James v. Capitol Steel Constr. 

Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). 

 We find credible evidence to support the commission's 
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finding that claimant suffered an "injury by accident." Claimant 

testified to a "sudden" pull in his neck, occurring during a ten 

to fifteen minute period on a specific date. Moreover, the 

medical report of claimant's treating physician notes that the 

condition was due to claimant hyperextending his neck at work on 

that date. 

 II. 

 To be compensable, an injury by accident must "aris[e] out 

of and in the course of employment." Code § 65.2-101; County of 

Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 

(1989).2 The claimant bears the burden of proving his injury 

arose out of his employment. Marketing Profiles, Inc. v. Hill, 

17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993). The issue of 

whether an injury arose out of employment is a mixed question of 

law and fact, reviewable on appeal. Southside Training Center v. 

Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995). 

However, the commission's underlying findings of fact will not be 

disturbed on review if credible evidence supports them. See

Hill, 17 Va. App. at 435, 437 S.E.2d at 729-30; Ogden Allied 

Aviation v. Shuck, 17 Va. App. 53, 55, 434 S.E.2d 921, 922 

(1993), aff'd on reh'g, 18 Va. App. 756, 446 S.E.2d 898 (1994). 

 The phrase "arising out of" refers to the origin or cause of 

the injury. Johnson, 237 Va. at 183, 376 S.E.2d at 74 (comparing 

 

 2Employer does not contend that claimant's injury did not 

arise in the course of his employment; the issue is solely 

whether his injury arose out of his employment. 
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phrase "arising in the course of," which refers to time, place, 

and circumstances under which accident occurred); Marion 

Correctional Center v. Henderson, 20 Va. App. 477, 479, 458 

S.E.2d 301, 303 (1995). As employer argues, Virginia has 

rejected the "positional risk" test in favor of the "actual risk" 

test. E.g., Johnson, 237 Va. at 185, 376 S.E.2d at 75-76. In 

Virginia, "[t]he mere happening of an accident at the workplace, 

not caused by any work related risk or significant work related 

exertion, is not compensable." Shuck, 17 Va. App. at 54, 434 

S.E.2d at 922 (quoting Plumb Rite Plumbing Service v. Barbour, 8 

Va. App. 482, 484, 382 S.E.2d 305, 306 (1989)). The "actual 

risk" test "`requires only that the employment expose the workman 

to a particular danger from which he was injured, notwithstanding 

the exposure of the public generally to like risks.'" Henderson, 

20 Va. App. at 480, 458 S.E.2d at 303 (quoting Olsten v. 

Leftwich, 230 Va. 317, 319, 336 S.E.2d 893, 894 (1985)). Thus, 

to prove the injury arose out of the employment, a claimant must 

establish "a causal connection between the conditions under which 

the work is required to be performed and the resulting injury." 

Henderson, 20 Va. App. at 480, 458 S.E.2d at 303; Shuck, 17 Va. 

App. at 54, 434 S.E.2d at 922 (quoting Barbour, 8 Va. App. at 

484, 382 S.E.2d at 306) ("claimant must `show that the conditions 

of the workplace or that some significant work related exertion 

caused the injury'"). "The causative danger must be peculiar to 

the work, incidental to the character of the business, and not 
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independent of the master-servant relationship." United Parcel 

Service v. Fetterman, 230 Va. 257, 258-59, 336 S.E.2d 892, 893 

(1985). 

 Thus, in cases where an injury does not follow "as a natural 

incident of the work" and does not result from "exposure 

occasioned by the nature of the employment," the injury does not 

"arise out of" employment. Id. at 258-59, 336 S.E.2d at 893 

(back pain resulting from bending to tie shoe while at work did 

not arise out of employment); see also Johnson, 237 Va. at 186, 

376 S.E.2d at 76 (fall resulting from mere act of turning on a 

normal flight of stairs while at work did not arise out of 

employment); Central State Hospital v. Wiggers, 230 Va. 157, 

159-60, 335 S.E.2d 257, 259 (1985) (twisted ankle resulting from 

mere act of walking while at work did not arise out of 

employment); Richmond Memorial Hospital v. Crane, 222 Va. 283, 

285-86, 278 S.E.2d 877, 879 (1981) (leg injury resulting from 

mere act of walking while at work did not arise out of 

employment); Barbour, 8 Va. App. at 484, 382 S.E.2d at 306 (back 

injury resulting from the mere act of bending over to pick up 

pipe while at work did not arise out of employment). 

 However, an injury may be found to arise out of employment 

when it is occasioned by the nature of the employment itself. 

See Henderson, 20 Va. App. at 481, 458 S.E.2d at 303 (injury 

resulting from fall on normal flight of stairs arose out of 

employment because work required claimant to observe guard towers 
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while descending stairs); Brown, 12 Va. App. at 244-45, 402 

S.E.2d at 710-11 (1991) (injury resulting from lowering 100 pound 

furnace and cutting and fitting motions performed while bent over 

arose out of employment because such risks were encountered 

solely due to nature of job); Grove v. Allied Signal, Inc., 15 

Va. App. 17, 21, 421 S.E.2d 32, 34-35 (1992) (back injury 

resulting from bending, crouching, or squatting to perform work 

task arose out of employment); Shuck, 17 Va. App. at 54-55, 434 

S.E.2d at 922 (neck injury resulting from tilting head back to 

look directly overhead to monitor fuel gauges arose out of 

employment). 

 Here, the commission relied on Shuck in finding claimant's 

neck injury arose out of his employment. The commission found 

the position claimant maintained while filing the aperture cards 

was unusual or awkward. Employer contends claimant's condition 

was not unusual since he could have found himself in the same 

position outside the work environment. However, the test is 

whether claimant's injury resulted from an exposure to risk 

occasioned by the nature of his employment, "notwithstanding the 

exposure of the public generally to like risks." Henderson, 20 

Va. App. at 480, 458 S.E.2d at 303 (quoting Olsten, 230 Va. at 

319, 336 S.E.2d at 894). Here, claimant maintained his "awkward" 

body position in order to accomplish an employment related task. 

 Employer further argues that other means were available to 

claimant for performing the task. However, the test is not 
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whether the actual act, movement, or "body contortion" which 

resulted in injury might have been avoided by using other 

available methods to perform the work. Rather, where the injuryproducing act, movement, or "contortion" is inherent in the 

nature of the employment, it matters not that other approaches to 

the task are available to the claimant. 

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

Affirmed.