Marion Correc Treatment Ctr v. Garland L. Henderson ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Koontz and Willis
Argued at Salem, Virginia
MARION CORRECTIONAL TREATMENT CENTER
v. Record No. 1442-94-3 OPINION BY
JUDGE SAM W. COLEMAN III
GARLAND L. HENDERSON JUNE 13, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
James W. Osborne, Assistant Attorney General
(James S. Gilmore, III, Attorney General; Gregory
E. Lucyk, Senior Assistant Attorney General;
Richard L. Walton, Jr., Senior Assistant Attorney
General, on briefs), for appellant.
Darrell A. Poe (Bradford & Poe, P.C., on brief),
for appellee.
Marion Correctional Treatment Center appeals an award of
medical benefits by the Workers' Compensation Commission to the
appellee, Garland L. Henderson. The sole issue on appeal is
whether the evidence was sufficient to support the commission's
finding that appellee's injury "arose out of" his employment.
Garland Henderson is a correctional officer at the Marion
Correctional Treatment Center. He testified that on April 23, at
approximately 10:15 p.m. as he was returning to the main
building,
I'd just got through acknowledging the tower
officer in tower two, which is to the left of
the steps, and I started down the steps and I
was looking at tower one to see if the
officer there was seeing me coming. And, I
went to put my right foot down on I think
it's the third or fourth step, which it's in
the report but I can't remember which one it
was. My heel slid off the steps, I had onto
the rail, and I put all the weight on the
left knee when I did. I didn't actually
fall, but when my foot slipped down to the
next step on the right foot all my weight to
my left knee and when I went something popped
in my knee.
The commission found that, because Henderson's job
responsibilities caused him to watch the tower guards rather than
the steps, how he performed his job provided the "critical link"
between the conditions of the workplace and the injury, and
therefore, Henderson's injury arose out of his employment. See
County of Chesterfield v. Johnson, 237 Va. 180, 186, 376 S.E.2d
73, 76 (1989). We affirm that holding.
An injury, to be compensable under the Workers' Compensation
Act, must "arise out of" and be "in the course of" employment.
Code § 65.2-101. See Johnson, 237 Va. at 183, 376 S.E.2d at 74.
"Arising out of" refers to the origin or cause of the injury.
Richmond Memorial Hospital v. Crane, 222 Va. 283, 285, 278 S.E.2d
877, 878 (1981). Whether an accident arises out of employment is
a mixed question of law and fact which is reviewable on appeal.
Mullins v. Westmoreland Coal Co., 10 Va. App. 304, 307, 391
S.E.2d 609, 611 (1990). An injury arises out of the employment
if there is apparent to the rational mind a causal connection
between the conditions under which the work is required to be
performed and the resulting injury. United Parcel Service v.
Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 893 (1985). An
injury does not arise out of one's employment if it is caused by
"a hazard to which the employee would have been equally exposed
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apart from the employment." Johnson, 237 Va. at 183, 376 S.E.2d
at 75. However, if an injury "has followed as a natural incident
of the work and has been a result of an exposure occasioned by
the nature of the employment," then the injury "arises out of"
the employment. Fetterman, 230 Va. at 258, 336 S.E.2d at 893.
Virginia has adopted an "actual risk" test and has rejected
the "positional risk" test followed by other jurisdictions. See
Johnson, 237 Va. at 185, 376 S.E.2d at 75-76. The actual risk
test "'requires only that the employment expose the workman to a
particular danger from which he was injured, notwithstanding the
exposure of the public generally to like risks.'" Olsten v.
Leftwich, 230 Va. 317, 319, 336 S.E.2d 893, 894 (1985) (quoting
Lucas v. Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972)).
Officer Henderson testified at the evidentiary hearing that
he was "trained to observe" and that his work duties included
"[a]ll security, security and safety of the inmates and the other
employees." Henderson testified that every time he walked
through the correctional unit, he checked the tower officers "to
make sure they're alert and just wave at them and have them wave
back." Henderson testified that on the day he slipped, he had
just acknowledged tower two, was descending the stairs, and was
observing tower one when the accident occurred. Observation of
the guard towers was one of the security functions of his
employment. The way in which he performed this aspect of his job
increased his risk of falling on this occasion and directly
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contributed to cause his fall and injury. Cf. Fetterman, 230 Va.
at 259, 336 S.E.2d at 893. He would not have been equally
exposed to the risk apart from his duty to observe the guard
towers and provide security at the facility. Cf. Bradshaw v.
Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938).
Henderson's injury occurred because of the performance of his job
duties in a particular manner. Therefore, the cause of the
injury was not "unrelated to any hazard common to the workplace."
Fetterman, 230 Va. at 259, 336 S.E.2d at 893. Because
Henderson's employment exposed him to a danger that caused his
injury, it arose out of his employment. Id. The commission did
not err in its award of medical benefits.
Affirmed.
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