Maria E. Russo v Capital Gardens, etc., et al

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COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

MARIA E. RUSSO

Vv. Record No. 2400-94-1 MEMORANDUM OPINION
PER CURIAM
CAPITAL GARDENS, INC. T/A MAY 30, 1995
DENNIS' SPAGHETTI AND STEAK HOUSE
AND

AETNA CASUALTY AND SURETY COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(John H. Klein; Rutter & Montagna, on brief),
for appellant.

(Robert W. McFarland; Mark S. Davis; Kevin E. Mooney;
McGuire, Woods, Battle & Boothe, on brief), for appellees.

The sole issue on this appeal is whether the Workers'
Compensation Commission erred in finding that Maria E. Russo
failed to prove that she sustained an injury by accident arising
out of her employment. 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. Rule
5A:27.

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). To recover benefits, Russo must establish that she

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

"Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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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).
The evidence proved that Russo was employed as a waitress in
employer's restaurant. 	While she was working, she bent down to
pick up a napkin off of the floor and felt pain in her knee. 	At
the hearing, Russo demonstrated that she bent over, with her left
foot slightly off of the ground behind her, and she reached for
the napkin with her left hand. 	Russo sustained a left knee
injury as a result of this incident.
In denying Russo's application on the basis that her injury
did not arise out of her employment, the commission made the
following findings:
We agree with the Deputy Commissioner's
determination . . . [that] a "critical link"
must exist between the conditions and the
injury in order for the injury to arise out
of the employment. 	No such link has been
proven. 	The claimant was performing a simple
bending motion when her knee gave out.
Excluded from coverage under the Act are
workplace injuries that come from hazards to
which the worker would have been equally
exposed apart from the employment.
The commission's decision is supported by County of
Chesterfield v. Johnson, 237 Va. 180, 186, 376 S.E.2d 73, 76
(1989), and Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482,
484, 382 S.E.2d 305, 306 (1989). 	Therefore, we affirm the
commission's decision.

Affirmed.
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