COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Fitzpatrick 

Argued at Alexandria, Virginia 

BRIAN SCOTT TIMMONS 

v. Record No. 1761-94-4 MEMORANDUM OPINION* 

 BY JUDGE JOSEPH E. BAKER 

AIRBORNE FREIGHT CORPORATION MAY 16, 1995 

AND 

AMERICAN MANUFACTURERS MUTUAL 

 INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Kathleen G. Walsh (Ashcraft & Gerel, on brief), 

 for appellant. 

 Michael L. Zimmerman (Brault, Palmer, Grove, 

 Zimmerman, White & Mims, on brief), for appellees. 

 In this appeal from a decision of the Workers' Compensation 

Commission (commission), Brian Scott Timmons (claimant) contends 

that the commission erred when it found that claimant did not 

prove his injury arose out of his employment with Airborne 

Freight Corporation (employer). Finding no error, we affirm the 

commission's decision. 

 On appellate review, we construe 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). Claimant had been a customer service agent for employer 

for six years immediately prior to July 21, 1993. His work 

required him to receive telephone calls regarding employer's 

____________________ 

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

designated for publication. 
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freight services. In the performance of that work, claimant sat 

in a wheeled, swivel chair answering telephone calls through a 

headset and use of a computer. He was evaluated on how quickly 

he answered the calls. He worked at a desk and was required to 

swivel one to one and one-half feet to access the computer when 

responding to a call; however, he could reach the computer 

without turning. At the time of his injury, claimant had locked 

his foot behind a roller on the base of his chair, preventing the 

chair from moving. While responding to an incoming call on July 

21, 1993, claimant was required to access the computer. When he 

moved to receive the call, his locked foot prevented the swivel 

chair from moving. His lower body remained stationery while his 

upper body twisted. Claimant testified that as he twisted, he 

felt something pop in his back. His claim for compensation 

benefits was based upon the injury resulting from that incident. 

 To recover under the Workers' Compensation Act, claimant 

must prove, by a preponderance of the evidence, that he suffered 

an "injury by accident arising out of and in the course of the 

employment." Code § 65.2-101. "The phrase arising 'in the 

course of' refers to the time, place, and circumstances under 

which the accident occurred. 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). 

 The question of whether an injury "arose out of" the 

employment is a mixed question of law and fact. Park Oil Co. v. 
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Parham, 1 Va. App. 166, 168, 336 S.E.2d 531, 532 (1985). We 

must, therefore, determine whether the facts presented are 

sufficient as a matter of law to justify the commission's 

finding. Hercules, Inc. v. Stump, 2 Va. App. 77, 78, 341 S.E.2d 

394, 395 (1986). 

 In its opinion, the commission said: 

 The claimant has the burden of proving an 

injury by accident on July 21, 1993 arising 

out of and in the course of his employment. 

The dispositive question is whether the 

claimant's injury resulted from a risk of his 

employment. We find that it did not. The 

evidence shows that [claimant] did nothing 

more than turn in his chair to answer the 

telephone and access his computer. No 

significant exertion was required, and there 

was nothing awkward or strenuous in his 

movements. The mere act of turning in one's 

chair is insufficient to bring the injury 

within the coverage of the Act. 

We hold that the evidence supports that conclusion. 

 Claimant relies upon First Fed. Sav. and Loan v. Gryder, 9 

Va. App. 60, 383 S.E.2d 755 (1989). The cases are 

distinguishable by their facts. In Gryder, the Court 

specifically noted that if Gryder had been only working at her 

desk and felt a sharp pain when she "twisted," she would not have 

been permitted to recover. On those facts, Gryder supports the 

commission's decision. 

 In the case before us, claimant's injury was caused solely 

by his twisting. The conditions of the work place had nothing to 

do with the injury he sustained. See Plumb Rite Plumbing Service 

v. Barbour, 8 Va. App. 482, 382 S.E.2d 305 (1989). 
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 Accordingly, for the reasons stated, the commission's 

decision is affirmed. 

 Affirmed.