Opinion
Record No. 1714-93-2
Decided: July 12, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Reversed
Karen A. Gould (Linda M. Ziegler; Crews Hancock, on briefs), for appellant.
Gerald G. Lutkenhaus, for appellee.
Present: Chief Judge Moon, Judge Elder and Senior Judge Cole
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Southside Regional Medical Center, employer, appeals from the commission's award of benefits to Teresa H. Belsches, claimant, who was injured when she tripped and fell from a single step while leaving her place of employment. On appeal, employer contends that the commission erred in making certain findings of fact and in holding that claimant's injuries arose out of her employment. For the reasons that follow, we reverse the commission's award. Because the parties are familiar with the circumstances surrounding this case, we recite only those facts critical to our holding.
In order for an employee to recover under the Workers' Compensation Act, she must prove, by a preponderance of the evidence, Hercules, Inc. v. Stump, 2 Va. App. 77, 79, 341 S.E.2d 394, 395 (1986), that she suffered an "injury by accident arising out of and in the course of the employment." Code Sec. 65.2-101. "The phrase arising 'in the course of' refers to the time, place, and circumstances under which the accident occurred. 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). Our focus in this case concerns the latter inquiry-whether claimant's injury arose "out of" her employment. This determination involves a mixed question of law and fact and is thus reviewable on appeal. Mullins v. Westmoreland Coal Co., 10 Va. App. 304, 307, 391 S.E.2d 609, 611 (1990). However, this Court is bound by the commission's factual findings as long as they are supported by credible evidence, even if "contrary evidence may be found in the record." Code Sec. 65.2-706; Manassas Ice Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991).
To prove that an injury arose out of the employment, "claimant [must] show that the conditions of the workplace or some significant work related exertion caused the injury." Brown v. Caporaletti, 12 Va. App. 242, 244, 402 S.E.2d 709, 710 (1991) (quoting Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989)).
[I]f the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable 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.
R T Investments v. Johns, 228 Va. 249, 252-53, 321 S.E.2d 287, 289 (1984) (citations omitted).
Proof that the employee fell on the employer's premises "adds nothing and answers nothing, when the inquiry is, did the injury arise out of the employment. It simply helps prove the 'in the course of' prongs of the compensability test." Johnson, 237 Va. at 184, 376 S.E.2d at 76. To prove the "arising out of" component, the claimant must show that a condition of the workplace either caused or contributed to the fall and that the fall caused the injury. Id. at 184, 376 S.E.2d at 75. In Johnson, the Virginia Supreme Court denied recovery because "there was nothing unusual about or wrong with the steps at [claimant's] workplace." Id. at 186, 376 S.E.2d at 76. It found that the injury to Johnson's knee occurred first and was actually what caused him to fall. Id. at 182, 376 at 74; see also Richmond Mem. Hosp. v. Crane, 222 Va. 283, 286, 278 S.E.2d 877, 879 (1981) (denying coverage where claimant's "injury occurred while she was walking along a level, clear, unobstructed, well-lit corridor" and "she felt something snap," which caused her to fall). In Reserve Life Insurance Co. v. Hosey, 208 Va. 568, 159 S.E.2d 633 (1968), by contrast, the Court found that
something was unusual about the steps on which the injury occurred. They were slightly higher than normal. Moreover, Hosey sustained an injury while she was in the act of climbing to the top step in that slightly unusual series of steps. Those facts were crucial to the decision in Hosey. Johnson, 237 Va. at 186, 376 S.E.2d at 76 (citing Hosey, 208 Va. at 572, 159 S.E.2d at 636).
Here, as in Johnson, the facts show nothing unusual about the step on which claimant fell other than the fact that she rarely used it as a means of ingress and egress. As found by the commission and supported by credible evidence in the record, "[claimant] candidly admitted that there was nothing on the step which caused her to fall, and that her view was unobstructed." She also "explained that she knew the step was there but forgot about it." Despite this evidence, the commission ultimately found that the exit route in question was unusual because it was served by a step "in a building which was commonly served by entry and exit ramps." It also found that the exit was "unusual, when compared to the exit ramp to which [claimant] was accustomed." Upon our review of the record, we hold that the evidence does not support the commission's latter two findings.
We conclude first that the record is devoid of any credible evidence to support the commission's finding that "the step down . . . was unusual in a building which was commonly served by entry and exit ramps." Claimant testified about only two different ways to enter and leave the building, both of which connected to the front door: the ramp leading to the parking lot, which she normally used, and the single step and walkway leading to the circular driveway, which she used only rarely. Although it appears from the diagram admitted as Defendant's Exhibit 1 that the building has other exits leading to the parking lot, that diagram does not show whether they are served by flat walkways, ramps, or stairs. Claimant provided no other evidence to show that her injury resulted from a danger peculiar to the work and not common to the neighborhood, as required for coverage.
We also reject the commission's subjective assessment of the unusual nature of the step. Neither claimant nor the commission cites any case law in support of this proposition, and we interpret existing case law to require an objective assessment. As the Virginia Supreme Court has noted time and again, an injury arises "out of" the employment only if "[it] can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment." See, e.g., R T Investments, 228 Va. at 252, 321 S.E.2d at 289.
For these reasons, we conclude the commission erred in holding that claimant met her burden of proving that her injury arose out of her employment. Accordingly, we reverse the decision of the commission.
Reversed.