Jerry Anne Bickell v Lake Taylor Hospital, et al

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.

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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

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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.