                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Baker and Willis
Argued at Norfolk, Virginia


CHARLES RAY BELCH

v.        Record No. 1514-94-1           MEMORANDUM OPINION*
                                      BY JUDGE JOSEPH E. BAKER
RAY BELCH HOME MAINTENANCE AND              JUNE 6, 1995
 FLOOR COVERING
and
LIBERTY MUTUAL INSURANCE COMPANY

       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Karen M. Rye for appellant.

          William C. Walker (Donna White Kearney; Taylor &
     Walker, P.C., on brief), for appellees.



     Charles R. Belch (claimant) appeals a decision by the

Virginia Workers' Compensation Commission (commission) that he

failed to prove by a preponderance of the evidence that his May

4, 1993 back injury "arose out of" his employment.   The sole

issue presented by this appeal is whether claimant's back injury,

that occurred while rising from a kneeling position to a half

crouch while turning and reaching to retrieve tile, arose out of

his employment.

     As the parties are familiar with the facts, we state only

those necessary to an understanding of this opinion.   Viewed most

favorably to employer, the prevailing party below, the record

discloses that claimant was a self-employed commercial floor

____________________

     *Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
covering installer for Ray Belch Home Maintenance and Floor

Covering (employer).    He had been in the industry for thirty

years and his job required him to spend much of his time on his

hands and knees.    On May 4, 1993, claimant was working at a Farm

Fresh store in Chester Heights, Virginia.    After spreading

adhesive for a couple of hours, he began laying tile.    When

claimant "went to raise up to pick up more tile" he felt "a pain

in [his] back and [his] left leg, and [he] went back down on

[his] knees and [he] couldn't get up."    The pain gradually

worsened necessitating a coworker to take claimant to the

hospital. 1

        The deputy commissioner found that claimant's testimony

proved an identifiable incident that occurred at a reasonably

definite time, an obvious sudden mechanical or structural change

in the body, and a causal connection between the incident and the

bodily change.    The deputy commissioner further found that

although claimant testified that he experienced a sharp sudden

pain as he raised up to reach for tile, this did not point to any

work-related factor that contributed to his injury, other than

laying tile over a one-hour period in which he experienced no

pain.

    1
     Although the above is a summary of the testimony given by
claimant before the deputy commissioner, the record contains even
less favorable evidence that fails to support claimant's
testimony, including statements made by claimant that his injury
came on gradually.



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       In affirming the deputy commissioner's ruling that claimant

had not proved his injury "arose out of" his employment, the

commission rejected claimant's argument that he was required to

work in an awkward position over an extended period of time.    The

commission ruled that:
          Even assuming the claimant proved an injury
          by accident 2 , we find that he has failed to
          establish that the conditions of the
          workplace contributed to the cause of his
          injury. The pain arose as he was reaching
          for tile, with nothing in his hands. There
          is no evidence that the conditions of the
          workplace required him to work in an awkward
          position over a period of time.

We agree with the decision of the commission and affirm its

judgment.

       The fundamental purpose of the Workers' Compensation Act is

to compensate employees for accidental injuries that occur within

the hazards of the employment.     Morris v. Morris, 238 Va. 578,
   2
     Indeed, Belch's case seems more like those cases cited by the
Supreme Court in Morris as support for its holding. See, e.g.,
Tomko v. Michael's Plastering, 210 Va. 697, 173 S.E.2d 833 (1970)
(herniated disc diagnosed after repeated heavy lifting; gradually
increasing soreness not proof of "obvious sudden mechanical or
structural change"); Badische Corp. v. Starks, 221 Va. 910, 275
S.E.2d 605 (1981) (same; where employee cannot identify particular
movement or action causing injury, compensation not recoverable);
VEPCO v. Cogbill, 223 Va. 354, 288 S.E.2d 485 (1982) (lumbar
strain developed from prolonged sitting in straight-backed chair;
not compensable because no sudden, obvious mechanical or
structural change shown); The Lane Co., Inc. v. Saunders, 229 Va.
196, 326 S.E.2d 702 (1985) (herniated disc diagnosed after unusual
repetitive heavy lifting followed by gradually developing pain;
not compensable because no accident, identifiable incident, or
sudden precipitating event shown); Kraft Dairy Group v.
Bernardini, 229 Va. 253, 329 S.E.2d 46 (1985) (injury caused by
cumulative trauma due to repetitive exertions not compensable).




                                 - 3 -
584, 385 S.E.2d 858, 861-62 (1989) (citing Fettig v. Chalkley,

185 Va. 96, 102, 38 S.E.2d 73, 75 (1946)).    The burden is on the

claimant to prove by a preponderance of the evidence (1) an

injury by accident (or occupational disease), (2) arising out of,

and (3) in the course of the employment.     Id., 385 S.E.2d at 862;

Code § 65.1-7.   Claimant's testimony at the hearing, though

contradictory of some other statements made by him, does not show

that his injury occurred "within a hazard of the work place."

The mere happening of an accident at the workplace, not caused by

any work-related risk or significant work-related exertion, is

not compensable.   Plumb Rite Plumbing Services v. Barbour, 8 Va.

App. 482, 484, 382 S.E.2d 305, 306 (1989).

     The words "arising out of" in Code § 65.1-7 refer to the

origin or cause of the injury.     Baggett & Meador Cos. v. Dillon,

219 Va. 633, 637, 248 S.E.2d 819, 822 (1978).    To entitle

claimant to compensation under the Act for an injury "arising out

of" his employment, claimant must show that the injury arose from

risks peculiar to his employment or must have been sustained in

the course of an employment activity to which the public is not

exposed.   Richmond Mem. Hosp. v. Crane, 222 Va. 283, 286-87, 278

S.E.2d 877, 879 (1981).
          [The injury arises out of the employment]
          "'when there is apparent to the rational mind
          upon consideration of all the circumstances,
          a causal connection between the conditions
          under which the work is required to be
          performed and the resulting injury. Under
          this test, if the injury can be seen to have
          followed as a natural incident of the work
          and to have been contemplated by a reasonable



                                 - 4 -
          person familiar with the whole situation as a
          result of the exposure occasioned by the
          nature of the employment, then it arises "out
          of" the employment. But it excludes an
          injury which cannot fairly be traced to the
          employment as a contributing proximate cause
          and which comes from a hazard to which the
          workman would have been equally exposed apart
          from the employment. The causative danger
          must be peculiar to the work and not common
          to the neighborhood. It must be incidental
          to the character of the business and not
          independent of the relation of master and
          servant. It need not have been foreseen or
          expected, but after the event it must appear
          to have had its origin in a risk connected
          with the employment, and to have flowed from
          that source as a rational consequence.'"


Dillon, 219 Va. at 637-38, 248 S.E.2d at 822 (citations omitted).

     Accepting claimant's testimony as related to the deputy

commissioner, we cannot say as a matter of law that the

commission's decision was plainly wrong or that claimant's

evidence was sufficient to sustain his burden to prove an injury

by accident arising out of his employment.

     Accordingly, we affirm the commission's decision.

                                             Affirmed.




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