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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,




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.
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