Ogden Allied Aviation Services v. Shuck

[54] Opinion COLEMAN, J. Ogden Allied Aviation Services, employer, seeks reversal of the commission’s findings that David Wayne Shuck, claimant, sustained an injury that arose out of his course of employment. We affirm the commission’s decision. On March 21, 1990, claimant was employed with employer as an aircraft refueler. Claimant’s job was to connect the fuel hose and then look at the fuel gauges directly overhead to determine when the aircraft was completely fueled. On this date, claimant was looking up at the gauge, heard a pop in his neck and sustained an injury. Relying on County of Chesterfield v. Johnson, 237 Va. 180, 376 S.E.2d 73 (1989), and Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 482, 382 S.E.2d 305 (1989), the deputy commissioner dismissed the case, holding that the claimant did not prove an accident arising out of his employment. The deputy commissioner held that looking upward is an activity that is “too common to the public at large to be considered a peculiar risk of his employment.” The commission reversed the deputy commissioner. It found that “claimant’s work requires that he tilt his head back to an angle that allows him to look directly overhead at the . .. fuel gauges .. . and to do so on a regular basis.” The commission found that because this task placed the claimant in “an unusual or awkward position in which to work,” the injury that the claimant received as a consequence of this activity arose out of his employment. We affirm the commission’s decision. A claimant must “show that the conditions of the workplace or that some significant work related exertion caused the injury. The mere happening of an accident at the workplace, not caused by any work related risk or significant work related exertion, is not compensable.” Barbour, 8 Va. App. at 484, 382 S.E.2d at 306 (emphasis added). Claimant testified that “the prolonged looking up at the fuel gauges is what caused it” and that he had to look up “generally fifteen to twenty minutes.” Claimant further testified that while he was looking up at the fuel gauges on the airplane, he would fill out paperwork and that “[i]t’s a constant up and down process doing paperwork and watching the fuel gauges.” [55] In addition to describing the length of time he spent looking up and down, the claimant testified as to the specific physical act of looking up that is required to view the fuel gauges. “It’s almost straight up and down when you have to look at the gauges . . . [t]hey’re immediately over your head.” We hold that the repeated act of looking straight up to view the fuel gauges, as the claimant testified, supported the commission’s finding that the claimant performed this task in “an unusual or awkward position,” and, as a consequence, the injury to his neck was related to exertion peculiar to his employment. Accordingly, we affirm the commission’s decision. Affirmed. Willis, X, concurred.