COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

JERRY ANNE BICKELL 

 MEMORANDUM OPINION*

v. Record No. 1328-98-1 PER CURIAM 

 NOVEMBER 24, 1998 

LAKE TAYLOR HOSPITAL AND 

 HEALTHCARE PROVIDERS GROUP 

 SELF-INSURANCE ASSOCIATION 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (A. 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 § 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." 

 

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

designated for publication. 
- 2 - 

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 
- 3 - 

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.