                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Annunziata
Argued at Salem, Virginia


GOODYEAR TIRE & RUBBER CO., INC., ET AL.

v.   Record No.   1350-95-3            MEMORANDUM OPINION * BY
                                     JUDGE ROSEMARIE ANNUNZIATA
LARRY D. LANUM                             JUNE 18, 1996


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Martha White Medley (Daniel, Vaughan, Medley
           & Smitherman, P.C., on brief), for
           appellants.
           No brief or argument for appellee.



     Employer, Goodyear Tire & Rubber Co., Inc., appeals the

decision of the Virginia Workers' Compensation Commission,

awarding medical benefits to claimant, Larry D. Lanum.      The

commission found claimant suffered a compensable injury by

accident arising out of and in the course of his employment.

Employer contends claimant's injury did not "arise out of" his

employment.   Finding no error, we affirm.

     Claimant's job duties included filing three-by-seven inch

aperture cards in the bottom drawer of a knee-high cabinet for
                                                 1
approximately ten to fifteen minutes each day.       In conducting

this task, claimant bent at the waist, at approximately forty-

five degrees, and tilted his head back to see through his

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     1
      An aperture card is a small negative of a drawing.
bifocals.    Claimant testified that on July 15, 1994 he

experienced a sudden pain in his neck while in this position.     He

stated that the pain grew progressively worse the next day and

through the summer and fall.    Claimant's medical records also

indicate that claimant's pain gradually intensified.

        Following his injury, claimant continued to work and perform

his usual tasks.    Claimant first sought medical attention for his

condition on August 10 from the plant dispensary where he

complained of neck pain and numbness and tingling in his right

shoulder.    In September, Dr. Lawrence F. Cohen, claimant's

attending physician, diagnosed claimant with a C3-4 herniated

disk.    Dr. Cohen's "Attending Physician's Report" notes that

claimant's condition resulted from a hyperextension of his neck

at work on July 15.    Claimant subsequently underwent surgery.
        The deputy commissioner found claimant suffered a

compensable injury by accident arising out of and in the course

of his employment.    The deputy commissioner made specific

findings that claimant was injured at work and that the injury

was not a pre-existing condition.       However, the deputy

commissioner did not make a specific finding with respect to

whether claimant's injury arose out of and in the course of

employment.

        The full commission affirmed.    It found the evidence

sufficient to establish the specific time and place of claimant's

injury and further found that claimant's employment required him




                                 - 2 -
to file the cards and required the work be performed in an

unusual or awkward position.   The ability to do the filing in a

different manner was found to be of no consequence.

                                  I.

     "Injury by accident" is defined, within the context of the

Workers' Compensation Act as "an identifiable incident or sudden

precipitating event [that results] in an obvious sudden

mechanical or structural change in the body."    Morris v. Morris,

238 Va. 578, 589, 385 S.E.2d 858, 865 (1989).   By contrast, a

gradually incurred injury is not an injury by accident within the

meaning of the Act.   Middlekauff v. Allstate Insurance Co., 247
Va. 150, 154, 439 S.E.2d 394, 397 (1994).   Though an injury by

accident must be "`bounded with rigid temporal precision,' . . .

[a]n injury need not occur within a specific number of seconds or

minutes . . . but instead, must occur within a `reasonably

definite time.'"   Brown v. Caporaletti, 12 Va. App. 242, 243-44,

402 S.E.2d 709, 710 (1991) (quoting Morris, 238 Va. at 589, 385

S.E.2d at 865 (1989)).

     On appeal, this Court construes 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).   The commission's findings of fact will be upheld if

supported by credible evidence.    James v. Capitol Steel Constr.

Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

     We find credible evidence to support the commission's



                               - 3 -
finding that claimant suffered an "injury by accident."    Claimant

testified to a "sudden" pull in his neck, occurring during a ten

to fifteen minute period on a specific date.    Moreover, the

medical report of claimant's treating physician notes that the

condition was due to claimant hyperextending his neck at work on

that date.

                                 II.

     To be compensable, an injury by accident must "aris[e] out

of and in the course of employment."    Code § 65.2-101; County of

Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74

(1989). 2   The claimant bears the burden of proving his injury

arose out of his employment.    Marketing Profiles, Inc. v. Hill,

17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993).    The issue of

whether an injury arose out of employment is a mixed question of

law and fact, reviewable on appeal.     Southside Training Center v.

Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995).

However, the commission's underlying findings of fact will not be

disturbed on review if credible evidence supports them.     See

Hill, 17 Va. App. at 435, 437 S.E.2d at 729-30; Ogden Allied

Aviation v. Shuck, 17 Va. App. 53, 55, 434 S.E.2d 921, 922

(1993), aff'd on reh'g, 18 Va. App. 756, 446 S.E.2d 898 (1994).

     The phrase "arising out of" refers to the origin or cause of

the injury.    Johnson, 237 Va. at 183, 376 S.E.2d at 74 (comparing
     2
      Employer does not contend that claimant's injury did not
arise in the course of his employment; the issue is solely
whether his injury arose out of his employment.



                                - 4 -
phrase "arising in the course of," which refers to time, place,

and circumstances under which accident occurred); Marion

Correctional Center v. Henderson, 20 Va. App. 477, 479, 458
S.E.2d 301, 303 (1995).   As employer argues, Virginia has

rejected the "positional risk" test in favor of the "actual risk"

test.   E.g., Johnson, 237 Va. at 185, 376 ashleyjohnson@example.com.      In

Virginia, "[t]he mere happening of an accident at the workplace,

not caused by any work related risk or significant work related

exertion, is not compensable."     Shuck, 17 Va. App. at 54, 434

S.E.2d at 922 (quoting Plumb Rite Plumbing Service v. Barbour, 8
Va. App. 482, 484, 382 S.E.2d 305, 306 (1989)).    The "actual

risk" test "`requires only that the employment expose the workman

to a particular danger from which he was injured, notwithstanding

the exposure of the public generally to like risks.'"     Henderson,

20 Va. App. at 480, 458 S.E.2d at 303 (quoting Olsten v.

Leftwich, 230 Va. 317, 319, 336 S.E.2d 893, 894 (1985)).     Thus,

to prove the injury arose out of the employment, a claimant must

establish "a causal connection between the conditions under which

the work is required to be performed and the resulting injury."
Henderson, 20 Va. App. at 480, 458 S.E.2d at 303; Shuck, 17 Va.

App. at 54, 434 S.E.2d at 922 (quoting Barbour, 8 Va. App. at

484, 382 S.E.2d at 306) ("claimant must `show that the conditions

of the workplace or that some significant work related exertion

caused the injury'").   "The causative danger must be peculiar to

the work, incidental to the character of the business, and not




                                 - 5 -
independent of the master-servant relationship."   United Parcel

Service v. Fetterman, 230 Va. 257, 258-59, 336 S.E.2d 892, 893

(1985).

     Thus, in cases where an injury does not follow "as a natural

incident of the work" and does not result from "exposure

occasioned by the nature of the employment," the injury does not

"arise out of" employment.   Id. at 258-59, 336 S.E.2d at 893

(back pain resulting from bending to tie shoe while at work did

not arise out of employment); see also Johnson, 237 Va. at 186,
376 S.E.2d at 76 (fall resulting from mere act of turning on a

normal flight of stairs while at work did not arise out of

employment); Central State Hospital v. Wiggers, 230 Va. 157,

159-60, 335 S.E.2d 257, 259 (1985) (twisted ankle resulting from

mere act of walking while at work did not arise out of

employment); Richmond Memorial Hospital v. Crane, 222 Va. 283,

285-86, 278 S.E.2d 877, 879 (1981) (leg injury resulting from

mere act of walking while at work did not arise out of

employment); Barbour, 8 Va. App. at 484, 382 S.E.2d at 306 (back
injury resulting from the mere act of bending over to pick up

pipe while at work did not arise out of employment).

     However, an injury may be found to arise out of employment

when it is occasioned by the nature of the employment itself.

See Henderson, 20 Va. App. at 481, 458 S.E.2d at 303 (injury

resulting from fall on normal flight of stairs arose out of

employment because work required claimant to observe guard towers



                               - 6 -
while descending stairs); Brown, 12 Va. App. at 244-45, 402

S.E.2d at 710-11 (1991) (injury resulting from lowering 100 pound

furnace and cutting and fitting motions performed while bent over

arose out of employment because such risks were encountered

solely due to nature of job); Grove v. Allied Signal, Inc., 15
Va. App. 17, 21, 421 S.E.2d 32, 34-35 (1992) (back injury

resulting from bending, crouching, or squatting to perform work

task arose out of employment); Shuck, 17 Va. App. at 54-55, 434

S.E.2d at 922 (neck injury resulting from tilting head back to

look directly overhead to monitor fuel gauges arose out of

employment).
     Here, the commission relied on Shuck in finding claimant's

neck injury arose out of his employment.   The commission found

the position claimant maintained while filing the aperture cards

was unusual or awkward.    Employer contends claimant's condition

was not unusual since he could have found himself in the same

position outside the work environment.   However, the test is

whether claimant's injury resulted from an exposure to risk

occasioned by the nature of his employment, "notwithstanding the

exposure of the public generally to like risks."    Henderson, 20

Va. App. at 480, 458 S.E.2d at 303 (quoting Olsten, 230 Va. at

319, 336 S.E.2d at 894).   Here, claimant maintained his "awkward"

body position in order to accomplish an employment related task.

     Employer further argues that other means were available to

claimant for performing the task.   However, the test is not




                                - 7 -
whether the actual act, movement, or "body contortion" which

resulted in injury might have been avoided by using other

available methods to perform the work.    Rather, where the injury-

producing act, movement, or "contortion" is inherent in the

nature of the employment, it matters not that other approaches to

the task are available to the claimant.

     For these reasons, we affirm the commission's decision.

                                                          Affirmed.




                              - 8 -
