                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Frank
Argued at Salem, Virginia


INTERNATIONAL PAPER COMPANY
                                    MEMORANDUM OPINION * BY
v.   Record No. 2201-99-3      CHIEF JUDGE JOHANNA L. FITZPATRICK
                                          MAY 9, 2000
JAMES H. DeHART


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Christopher M. Kite (Tracy M. Benner; Frith,
           Anderson & Peake, P.C., on brief), for
           appellant.

           No brief or argument for appellee.


     International Paper Company ("employer") contends the

Workers' Compensation Commission ("commission") erred in

awarding medical benefits to James H. DeHart ("claimant").     The

sole issue is whether credible evidence supports the

commission's finding that claimant's injury arose out of his

employment.   For the following reasons, we affirm.

                                I.

     "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).   "A question raised by


     *
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
conflicting medical opinion is a question of fact."      WLR Foods

v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997).

"'Decisions of the commission as to questions of fact, if

supported by credible evidence, are conclusive and binding on

this Court.'"    Id. (quoting Manassas Ice & Fuel Co. v. Farrar,

13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991)).      "'The fact

that there is contrary evidence in the record is of no

consequence.'"    Id. (quoting Wagner Enters., Inc. v. Brooks, 12

Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)).

     Claimant, a maintenance specialist for employer for over

twenty years, is six feet tall and weighs approximately 300

pounds.   The evidence established that on July 20, 1998, he was

arranging forty-pound water bottles in a storage rack.     Claimant

removed the empty bottles from the top rack, put them on the

floor and moved the full bottles to the top rack.    Claimant,

working in a "crouched" position, rearranged approximately

fifteen bottles, which took five minutes.    After completing this

activity, claimant "straightened up" from a squatting position

and felt a "burning sensation" in his "lower back toward [his]

hip area."    Claimant described the onset of pain as follows:

             Q. . . . Now explain what happened when you
             started feeling discomfort or pain.

             A. Well, when I stood, up, straightened up,
             that is when I felt the pain.

             Q. So it was after you had completed the
             job?


                                - 2 -
          A.   Right.

          Q.   Completed what you were doing?

          A.   Right.

          Q. Then you went to stand up from the
          squatting position?

          A.   Right.

Claimant was not lifting a water bottle when he experienced the

"burning sensation."    He testified that the activity of

rearranging the water bottles "wasn't difficult at all" and

involved "mainly stretching and pulling."

     Claimant immediately reported the incident to his

supervisor and continued to complete his shift that day.

However, for the next three days he was unable to work.

Claimant first sought medical treatment from Dr. Frank Pollock,

Jr., an orthopedist, on August 19, 1998.      At that time, Dr.

Pollock noted that claimant's back became symptomatic while

"trying to lift a bottle at work." 1     Dr. Pollock diagnosed

claimant's condition as "degenerative disk disease" and

"bilateral sacroiliitis with degenerative changes in both

sacroiliac joints."     In his September 16, 1998 medical report,

Dr. Pollock opined that claimant's injury was related to the

July 20, 1998 incident, stating the following:



     1
       At the hearing before the deputy commissioner, claimant
admitted that Dr. Pollock's recorded history was inconsistent with
the history of injury he had reported.


                                 - 3 -
          I discussed again my belief that his injury
          was completely work related. He clearly had
          an acute exacerbation of pain in his
          sacroiliac joint after his injury which was
          not present prior to the injury.

Dr. Pollock saw claimant for follow-up treatment on October 14

and November 11, 1998, and thereafter released him to work

without restrictions.

     Claimant filed a claim for benefits.   Following a hearing,

a deputy commissioner denied his claim, concluding that

claimant's injury did not arise out of his employment.    The

deputy commissioner found that "no workplace condition was

causative" and that he "became symptomatic while assuming an

upright position, a maneuver which he admitted was not made more

difficult by his immediate work environment."

     Claimant appealed, and the commission reversed.     The

commission concluded that claimant's injury was causally related

to his work because his "act of straightening and standing was

appurtenant to his performing work required as a condition of

his employment."   It found that "the risk of this injury was

within the ambit of risks to which the claimant was exposed as a

result of the employment . . . ."   Although the commission found

that claimant's injury arose out of his employment and that he

was entitled to medical benefits, it denied disability

compensation benefits because claimant "failed to establish that




                               - 4 -
the period of his disability exceeded the [seven-day] statutory

waiting period." 2

                                   II.

     Employer contends the commission erred in finding that

claimant's injury arose out of his employment.     Because claimant

testified that the work was not difficult or physically

demanding, employer contends the commission was bound by that

testimony and improperly found that claimant's injury was caused

by strenuous activity.     Finally, employer argues that Dr.

Pollock's opinion regarding causation is insufficient because it

was not based upon an accurate understanding of claimant's

injury.

     "An accident arises out of the employment if there is a

causal connection between the claimant's injury and the

conditions under which the employer requires the work to be

performed."   Grove v. Allied Signal, Inc., 15 Va. App. 17, 19,

421 S.E.2d 32, 34 (1992) (citations omitted).     "[T]he arising

out of test excludes 'an injury which comes from a hazard to

which the employee would have been equally exposed apart from

the employment.      The causative danger must be peculiar to the

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

independent of the master-servant relationship.'"      County of


     2
       The commission affirmed the deputy commissioner's
conclusion that claimant's back injury was not a compensable
occupational disease under Code § 65.2-400.


                                  - 5 -
Chesterfield v. Johnson, 237 Va. 180, 183-84, 376 S.E.2d 73, 75

(1989) (quoting United Parcel Serv. v. Fetterman, 230 Va. 257,

258-59, 336 S.E.2d 892, 893 (1985)).

     This case is controlled by our decision in Richard E.

Brown, Inc. v. Caporaletti, 12 Va. App. 242, 402 S.E.2d 709

(1991).   There, the claimant sustained an acute lumbosacral

strain while "straightening up after working in a bent over

position . . . ."     Id. at 244, 402 S.E.2d at 710.   We held that

the claimant's need to work in the bent over position and to

extract himself from that position was a "'hazard to which [the

claimant] would not have been equally exposed apart from the

conditions of the employment.'"     Id. at 245, 402 S.E.2d at 711

(quoting First Federal Savings & Loan v. Gryder, 9 Va. App. 60,

65, 383 S.E.2d 755, 759 (1989)).

     In the instant case, the evidence established that claimant

was working in a "crouched" position, arranging forty-pound

water bottles.   After completing this activity, claimant

"straightened up" from the squatting position and felt a

"burning sensation" in his "lower back toward [his] hip area."

The commission found that "the claimant's act of straightening

and standing was appurtenant to his performing work required as

a condition of his employment."    Because credible evidence

supports this finding, we affirm the commission's decision that

the workplace conditions constituted a hazard that was peculiar

to claimant's work.

                                 - 6 -
     Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 382

S.E.2d 305 (1989), cited by employer, does not mandate a

different conclusion.   In Barbour, we held that a claimant is

required "to show that the conditions of the workplace or that

some significant work related exertion caused the injury."        Id.

at 484, 382 S.E.2d at 306.   "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.

Virginia has rejected the "positional risk" doctrine which

compensates employees who are injured on the job regardless of

whether the injury was caused by a risk or condition of the

workplace.   See Johnson, 237 Va. at 185, 376 S.E.2d at 75-76.

     To the contrary, the commission in the present case

concluded that "the risk of [claimant's] injury was within the

ambit of risks to which the claimant was exposed as a result of

the employment . . . ."   Significantly, the commission found

that claimant's "testimony describing the task reasonably

suggests strenuous activity immediately preceding his attempt to

stand."   Unlike the situation in Barbour, where the claimant was

injured while bending down to pick up a piece of plastic pipe,

credible evidence supports the commission's finding that

claimant's injury was "caused by [the] work related risk" of

repeatedly bending and lifting the water bottles.   Barbour, 8

Va. App. at 484, 382 S.E.2d at 306.



                               - 7 -
     Nevertheless, employer urges us to reverse the decision on

the ground that claimant was bound by his uncontradicted

testimony that the work "wasn't difficult at all."     In support

of this error, employer relies upon Massie v. Firmstone, 134 Va.

450, 462, 114 S.E. 652, 655-56 (1922), where the Supreme Court

stated that a claimant's "case can rise no higher than [his]

uncontradicted testimony."   However, the Massie doctrine applies

only to a party litigant's statements of fact and does not apply

to "mere expressions of opinion."      Braden v. Isabell K. Horsley

Real Estate, Ltd., 245 Va. 11, 16, 425 S.E.2d 481, 484 (1993).

     Here, claimant's statements that he thought the work was

not "difficult" or "hard" were mere expressions of opinion, and

the Massie rule does not apply in this context.      See, e.g.,

Ravenwood Towers, Inc. v. Woodyard, 244 Va. 51, 55, 419 S.E.2d

627, 629-30 (1992) (plaintiff's testimony that she thought "she

could have seen" was "no more than an impression--an expression

of opinion"); Ford Motor Co. v. Bartholomew, 224 Va. 421, 431,

297 S.E.2d 675, 680 (1982) (plaintiff's testimony that she

thought the car was "in park" was simply her "impression" or

opinion).   Additionally, the rule does not apply to "an adverse

statement standing in isolation from the litigant's testimony as

a whole" which explains the facts.      Baines v. Parker and

Gladding, 217 Va. 100, 105, 225 S.E.2d 403, 407 (1976).

     Considering claimant's testimony in its entirety and in

context with all the other evidence before the commission, we

                               - 8 -
cannot say the commission erred in finding that claimant's

injury arose out of his employment. 3   Accordingly, we affirm.

                                                         Affirmed.




     3
       Employer's argument that the medical evidence regarding
causation was insufficient because Dr. Pollack's opinion was not
based upon an accurate understanding of claimant's injury is
without merit. Claimant admitted that Dr. Pollack's recorded
history was inconsistent with the history he reported, and the
commission made note of this "misunderstanding." In his
September 16, 1998 medical report, Dr. Pollack reiterated his
opinion that the "injury was completely work related" and that
claimant suffered pain in his joint "after his injury which was
not present prior to the injury." Thus, credible evidence
supports the commission's finding that the medical documentation
established causation.

                               - 9 -
