COURT OF APPEALS OF VIRGINIA Present: Judges Bent on, Elder and Kelsey Argued at Salem, Virginia

TELEFLEX AUTOMOTIVE MANUFACTURING CORP. AND TRAVERLERS INDEMNITY COMPANY OF AMERICA MEMORANDUM OPINION * BY v. Record No. 1856-03-3 JUDGE D. ARTHUR KELSEY APRIL 13, 2004 MILDRED HONAKER

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION James R. Hodges (Bundy McEl roy Hodges, on briefs), for appellants. Paul L. Phipps (D. Allison Mulli ns; Lee & Phipps, P.C., on brief), for appellee.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication. On appeal, Teleflex Automotive Manufactur ing Corp. claims the Virginia Workers’ Compensation Commission erred by c oncluding that Mildred Honaker’s knee injury arose out of her employment. Because the commission’s deci sion involves a question of fact and has the support of credible evidence, we will not disturb it.
I. We view the evidence in the light “most fa vorable” to the prevailing party before the commission. Clinchfield Coal Co. v. Reed , 40 Va. App. 69, 72, 577 S.E.2d 538, 539 (2003) (quoting Tomes v. James City (County Of) Fire , 39 Va. App. 424, 429, 573 S.E.2d 312, 315 (2002)).-2- Honaker injured her knee while at work as an assembler. At that time, she was operating a workstation where she assisted in assembling “parts to a cable” which were then assembled at a press. While standing on a two-inch thick rubber pad in front of the press, Honaker “turned to her right” and felt her knee “pop.” She experi enced an immediate onset of pain. “My leg turned,” Honaker explained, “but my feet didn’t turn with me.” At the time of the injury, Honaker was wearing “tennis shoes,” her normal f ootwear. She held in her hands a few small objects of negligible weight. Honaker promptly informed her supervisor, Patsy Monk, about her injury. Monk prepared an accident report detai ling Honaker’s accident. “Operator turned to her right,” Monk’s written account of the accident re ad, “then felt Right knee pop and then it started to hurt.” Honaker later received medical treatment for the injury, including arthroscopic surgery to repair a torn medial menisc us. Seeking lifetime medical benefits and temporary total compensation, she filed a claim with the commission. The deputy commissioner found Honaker “completely credible,” but concluded that “no as pect” of the employment caused her injury. On review, the full commission reve rsed. Honaker injured her knee, the commission found, because her “feet did not turn as she turned the rest of her body.” From this fact, the commission drew the inference that Honaker’s feet “did not m ove with her upper body because she was standing on a rubber mat at the time of her turn.” S upporting this inference, the commission concluded, was the fact that Monk, Teleflex ’s representative, acknowledged that the two-inch rubber pad had been placed in front of Honaker’s workstation to create “friction.”
II. We begin our analysis with the governing standa rd of review. On appeal, we defer to the commission in its role as fact finder. VFP, Inc. v. Shepherd , 39 Va. App. 289, 292, 572 S.E.2d 510, 511-12 (2002). “Decisions of the commission as to questions of fact, if supported by-3- credible evidence, are conclusive and binding on this Court.” Marshall v. Craft Forklift, Inc. , 41 Va. App. 777, 779, 589 S.E.2d 456, 457 (2003) (citation omitted). In addi tion, the commission’s “conclusions upon conflicting inferences, legitima tely drawn from prove n facts, are equally binding on appeal.” Watkins v. Halco Eng’g, Inc. , 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983);

see also Hall v. Winn Dixie Stores, Inc. , 41 Va. App. 835, 843, 589 S.E.2d 484, 488 (2003). Our deference to the commission’s factfinding applies “ev en though there is evidence in the record to support a contrary finding,” S.P. Terry Co. v. Rubinos , 38 Va. App. 624, 632, 567 S.E.2d 584, 588 (2002) (citations omitted), because the commission “i s free to adopt that view ‘which is most consistent with reason and justice, ’” Georgia-Pac. Corp. v. Robinson , 32 Va. App. 1, 5, 526 S.E.2d 267, 269 (2000) (quoting C.D.S. Const. Servs. v. Petrock , 218 Va. 1064, 1070, 243 S.E.2d 236, 240 (1978)). To be compensable, an injury must be “by accident arising out of and in the course of the employment . . . .” Code § 65.2-101 (emphasis added). 1 The arising-out-of phrase “refers to the origin or cause of the injury.” Lucas v. Fed. Express Corp. , 41 Va. App. 130, 134, 583 S.E.2d 56, 58 (2003). “An injury arises out of one’s em ployment if there is a causal connection between the injury and the ‘conditions unde r which the work is required to be performed.’” Dan River, Inc. v. Giggetts , 34 Va. App. 297, 304, 541 S.E.2d 294, 297 ( 2001) (quoting Metcalf v. A.M. Express Moving Sys., Inc. , 230 Va. 464, 468, 339 S.E.2d 177, 180 (1986)). The condition “‘must be peculiar to the work, in cidental to the character of the business, and not independent of

1 The expression “‘in the course of,’” we have explained, “refers to the time, place, and circumstances under which the accident occurred.” Lucas v. Fed. Express Corp. , 41 Va. App. 130, 133-34, 583 S.E.2d 56, 58 (2003) (quoting County of Chesterfield v. Johnson , 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989)). Teleflex does not contest this issue on appeal.-4- the master-servant relationship.’” Id. (quoting County of Chesterfield v. Johnson , 237 Va. 180, 183-84, 376 S.E.2d 73, 75 (1989)). 2 In this case, we agree with Teleflex that the mere act of turn ing, by itself, involves no workplace risk justifying compensation. See Johnson , 237 Va. at 186, 376 S.E.2d at 76 (no coverage where employee “was injured by the mere act of turning”); Grayson Sch. Bd. v.
Cornett , 39 Va. App. 279, 287, 572 S.E.2d 505, 509 (2002) (“Simple acts of walking, bending, or turning, without any other contributing environm ental factors, are not risks of employment.” (quoting Southside Va. Training Ctr. v. Ellis , 33 Va. App. 824, 829, 537 S.E.2d 35, 37 (2000))); Vint v. Alleghany Reg’l Hosp. , 32 Va. App. 60, 65, 526 S.E.2d 295, 298 (2000) (“An injury resulting from merely bending over to do someth ing does not arise out of the employment.”). Some specific characteristic of the workplace must impair the employee’s ability to complete a normal turn before it can be said that any re sulting injury arises out of the employment. The commission found such a specific characteris tic in this case. Honaker’s foot did not naturally follow the turn of her upper body, the co mmission found, because of the mat: a two-inch thick slab of rubber that produced some unmeasured degr ee of “friction” between itself and Honaker’s foot. The commission inferred causation from Honaker’s testimony and from the conspicuous absence of any othe r explanation. Honake r had no prior physical impairment with her legs, knees, or feet. She wore the same te nnis shoes she ordinarily wears to work. She had

2 It matters not that the causal condition is si mply a matter of degree. An injury arises out of employment if it “results from, or is ha stened by, conditions of employment exposing the employee to hazards to a degree beyond that of the public at large . . . .” Kjellstrom & Lee, Inc. v. Saunders , ___ Va. App. ___, ___ S.E.2d ___, 2004 Va. App. LEXIS 126, at *8 (2004) (quoting Byrd v. Stonega Coke & Coal Co. , 182 Va. 212, 216, 28 S.E.2d 725, 727 (1944)) (emphasis added); see also Lucas , 41 Va. App. at 134, 583 S.E.2d at 58 (recognizing that the Act is inapplicable to hazards “to which the general pub lic is equally exposed”).-5- no anatomical problems (that we know of) af fecting her posture or mobility. Thus, the commission reasoned, the most lik ely explanation was the mat. 3 In theory, of course, had Honaker not been standing on the mat, she might have still injured her knee at that very moment because of some peculiar, unexplainable reason. To prevail, however, Honaker’s evidence need not re nder this hypothesis fanc iful or reduce it to a remote improbability. She simply must show it more likely than not to be untrue. In this respect, the case resembles a slip-and-fall wher e the only evidence is th e slippery spot on the floor and the fact that the claima nt slipped at that exact spot. 4 Reasonable factfinders can draw reasonable inferences in just these kinds of circumstances. Because the “actual determination of causation” constitutes a finding of fact, we review the case to determine whether the totality of thes e facts could reveal to a “rational mind” a causal link “between the conditions under which the work is required to be perf ormed and the resulting

3 A claimant must prove by a “preponderance of the evidence that an injury arose out of the employment.” K&G Abatement Co. v. Keil , 38 Va. App. 744, 755, 568 S.E.2d 416, 421-22 (2002). “The burden of showing something by a preponderance of the evidence, the most common standard in the civil law, simply requires th e trier of fact to believ e that the existence of a fact is more probable than its nonexistence . . . .” Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal. , 508 U.S. 602, 622 (1993) (citations and internal quotation marks omitted); Metro. Stevedore Co. v. Rambo , 521 U.S. 121, 137 n.9 (1997). Proof rises to this level of persuasion when “it is made to appear more likely or probable in the sense that actual belief in its truth, derived from th e evidence, exists in the mind or minds of the tribunal, notwithstanding any doubts that may st ill linger there.” N. Va. Power Co. v. Bailey , 194 Va. 464, 471, 73 S.E.2d 425, 429 (1952) (citation a nd internal quotation marks omitted); see also Henrico County Sch. Bd. v. Etter , 36 Va. App. 437, 446, 552 S.E.2d 372, 376 (2001).

4 Consider too the analogous situatio n in Reserve Life Ins. Co. v. Hosey , 208 Va. 568, 569, 159 S.E.2d 633, 634 (1968). There, an employee st epped onto a series of “rock steps” that were a “little bit higher than usual” and sustained a s pontaneous knee injury. Id. No evidence proved that the employee slipped or tripped, and the employee admitted she “did not know” what caused her knee to give way. Id. Nevertheless, the abnormal natu re of the steps — coupled with the spontaneity of the knee inju ry — provided a rational basis fo r inferring causation. Because a “rational mind” could find a causa l connection under such circumst ances, the Virginia Supreme Court held, the commission’s factual findi ng on causation must be affirmed. Id. at 571, 159 S.E.2d at 635. The same conclusion applies here.-6- injury.” K&G Abatement Co. v. Keil , 38 Va. App. 744, 756, 568 S.E.2d 416, 422 (2002) (citations and internal quotation marks om itted). Having found a rational basis for the commission’s decision, we affirm. Affirmed.