COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Frank and Humphreys 

Argued at Richmond, Virginia 

SOUTHSIDE VIRGINIA TRAINING CENTER/ 

 COMMONWEALTH OF VIRGINIA 

 OPINION BY 

v. Record No. 0659-00-2 JUDGE ROBERT J. HUMPHREYS 

 NOVEMBER 21, 2000 

FREDERICK W. ELLIS 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Scott John Fitzgerald, Assistant Attorney 

General (Mark L. Earley, Attorney General; 

Judith Williams Jagdmann, Deputy Attorney 

General; Gregory E. Lucyk, Senior Assistant 

Attorney General, on brief) for appellant. 

 No brief or argument for appellee. 

 Southside Virginia Training Center contends the Workers' 

Compensation Commission erred when it ruled that Frederick W. 

Ellis sustained a compensable injury arising out of his 

employment on May 26, 1998. For the reasons that follow, we 

reverse the commission's award of benefits. 

I. Background

 Ellis worked as a truck driver at Southside Virginia 

Training Center from April 9, 1986 through 1999. Ellis' 

position as a truck driver required him to travel to various 

buildings on the campus and take carts filled with empty food 

trays to a central location. On occasion, when the people using 

the food trays had failed to place the empty tray on the cart, 
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Ellis and other employees in his job position took the empty 

trays from the dining tables and put them on the top of the cart 

or in one of the lower slots if the top of the cart was full. 

 On April 5, 1997, Ellis sustained a back injury when he 

bent to lift one of the empty trays from a cart to a nearby 

cabinet. This injury was found to be compensable. Ellis was 

taken off work for a brief period of time and then returned to 

work on light duty. For his light duty assignment, Ellis was 

given a desk job which required him to maintain records of food 

inventory in the storeroom. 

 By May 1998, Ellis was returned to full duty work. On May 

26, 1998, he walked into one of the campus buildings with a 

fellow employee to get the cart of empty trays. However, he 

noticed that one empty tray was left on one of the dining 

tables. Ellis went to the table and lifted the tray, which held 

an empty bowl and plate and weighed approximately ten pounds or 

less. He then twisted to his side and bent from the waist to 

place the tray in the cart. Because the top of the cart was 

full, he had to bend to a point approximately twelve inches 

above floor level to slide the tray into an empty slot. As 

Ellis stood up, his back went out. The employee who was with 

him came to his aid and helped him get medical attention. 

 Ellis' claim for workers' compensation benefits was 

initially denied. A hearing was subsequently held before the 
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commission on May 20, 1999. Ellis sought medical benefits for 

the May 26, 1998 injury, which he claimed was work-related. The 

Commonwealth argued that the injury was not caused by an 

"accident arising out of employment as there was no risk of 

employment involved."1 

 During the hearing, the commission considered testimony 

from Ellis and the employee who witnessed the incident, as well 

as various reports from Ellis' treating physicians. The 

commission found that, based on our decision in Brown v. 

Caporaletti, 12 Va. App. 242, 402 S.E.2d 709 (1991), the injury 

was compensable because the activity of bending, prior to 

straightening, created a risk of injury resulting from the 

conditions of the workplace. The full commission affirmed this 

decision. 

II. Analysis

By statutory mandate, "an award of the 

[c]ommission . . . shall be conclusive and 

binding as to all questions of fact." Code 

§ 65.2-706(A). Thus, we have often 

expressed our standard of review as follows: 

"In reviewing the commission's decision, we 

are guided by well-settled principles. 

'[I]t is fundamental that a finding of fact 

made by the [c]ommission is conclusive and 

binding upon this court on review.' '[T]hat 

contrary evidence may be in the record is of 

 1

 The Attorney General also argued that the injury was a new 

injury and not a change in condition. The commission found that 

the injury was a new injury. This finding is not before us on 

appeal. 
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no consequence if there is credible evidence 

to support the [c]ommission's findings.'" 

"The scope of a judicial review of the fact 

finding function of a workers' compensation 

commission [, therefore,] is 'severely 

limited, partly in deference to the agency's 

expertise in a specialized field.'" 

Georgia-Pacific Corp. v. Robinson, 32 Va. App. 1, 4-5, 526 

S.E.2d 267, 268 (2000) (citations omitted). 

 Here, it is not disputed that Ellis' injury was sustained 

during the course of his employment. However, "[i]n order to be 

compensable, . . . the injury 'must also arise out of the 

employment; the injury must be caused by the conditions of the 

workplace.' The claimant must 'prove by a preponderance of the 

evidence that the accident "arose out of and in the course of 

his employment[.]"'" Vint v. Alleghany Regional Hosp., 32 Va. 

App. 60, 63, 526 S.E.2d 295, 297 (2000) (citations omitted). 

 Whether an injury arose out of the employment is a mixed 

question of law and fact properly reviewable by this Court. 

Norfolk Community Hosp. v. Smith, 33 Va. App. 1, 4, 531 S.E.2d 

576, 578 (2000). In making these determinations, "Virginia 

employs the actual risk test. A claimant's injury arises out of 

the employment if the manner in which the employer requires the 

work to be performed is causally related to the resulting 

injury." Vint, 32 Va. App. at 63-64, 526 S.E.2d at 297. As the 

commission noted in its opinion "in [Brown,] the employee spent 

about five minutes in a bent over position [working on a 
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furnace,] and sustained an injury to his back while 

straightening up. The Court held that the injury was 

compensable [, because] [a]lthough he was merely straightening 

up at the time of the injury, this was connected to the previous 

activities of the claimant [laying the 100 pound furnace on its 

side]." We found that these activities were "peculiar to his 

work." Brown, 12 Va. App. at 245, 420 S.E.2d at 711. However, 

we have specifically held that "[a]n injury does not arise out 

of the employment when it 'cannot fairly be traced to the 

employment as a contributing proximate cause and . . . comes 

from a hazard to which the workmen would have been equally 

exposed apart from the employment. The causative danger must be 

peculiar to the work and not common to the neighborhood.'" 

Vint, 32 Va. App. at 63-64, 526 S.E.2d at 297. 

 Put another way, an injury is not compensable merely 

because it occurred during the performance of some employment 

duty if the act performed by the employee is not a causative 

hazard of the employment. Simple acts of walking, bending, or 

turning, without any other contributing environmental factors, 

are not risks of employment. 

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

favorable to the claimant, who prevailed before the commission."

Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d 

335, 340 (1998) (citations omitted). Here, the testimony of 
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Ellis and his fellow employee established that Ellis was injured 

after bending to pick up the tray. 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 297-98.2

 Our Supreme Court has noted that in an appropriate case, 

"[i]t is generally held . . . that the words 'arising out of and 

in the course of employment' should receive a liberal 

construction in order to carry out the humane and beneficent 

purposes of the act." Bradshaw v. Aronovitch, 170 Va. 329, 336, 

196 S.E. 684, 686 (1938). However, we have recognized that 

these words "cannot be liberalized by judicial interpretation 

for the purpose of allowing compensation on every claim 

 2

 We also note that the record established Ellis' duties as 

a truck driver required him to drive trucks to various locations 

and gather carts already filled with the empty trays. Although 

there was testimony that Ellis and his fellow employees would 

"bus" tables from time to time, the commission made no factual 

finding that Ellis was required to pick up trays from tables and 

put them into the carts, nor does the record establish, absent 

speculation, that this activity was related or incident to 

Ellis' employment. 
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asserted." Vint, 32 Va. App. at 63, 526 S.E.2d at 297 (emphasis 

added). "[A] claimant [must] show that the conditions of the 

workplace or that some significant work related exertion caused 

the injury." Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 

482, 484, 382 S.E.2d 305, 306 (1989). The record contains no 

such showing, and the mere happening of an accident at the 

workplace, not caused by any work-related risk or significant 

work-related exertion, is not compensable. Id.

Accordingly, we reverse the commission's decision, vacate 

the award of benefits and render final judgment for the 

appellant. 

 Reversed and final judgment.