Patricia Marie Angelo v. Stihl, Inc. and Hartford Casualty Insurance Company ( 2009 )


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  •                                COURT OF APPEALS OF VIRGINIA
    Present: Chief Judge Felton, Judges Frank and Powell
    Argued at Chesapeake, Virginia
    PATRICIA MARIE ANGELO
    MEMORANDUM OPINION * BY
    v.     Record No. 0564-09-1                                      JUDGE CLEO E. POWELL
    OCTOBER 27, 2009
    STIHL, INC. AND
    HARTFORD CASUALTY INSURANCE COMPANY
    FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
    Sidney H. Kelsey, Jr. (Sidney H. Kelsey, Jr., P.C., on briefs), for
    appellant.
    Adam S. Rafal (Vandeventer Black LLP, on brief), for appellees.
    Patricia Marie Angelo (“Angelo”) appeals a decision of the Workers’ Compensation
    Commission denying her benefits for injuries she sustained while walking in employer’s parking lot
    on her way back to work after a break. Angelo contends that the commission erred in finding that
    her injuries did not arise out of her employment.
    I. BACKGROUND
    On September 19, 2007, Angelo was working as an assembly line worker for Stihl, Inc.
    (“employer”). At 8:00 a.m., Angelo went to her vehicle, which was parked in employer’s private
    parking lot, to smoke a cigarette during her morning break. She saw a pickup truck parked next
    to her, but she did not notice anything unusual about it. As she returned to work, Angelo hit a
    ball hitch attached to the pickup truck, causing her to fall to the ground. As a result of the fall,
    *
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    Angelo suffered abrasions, a head injury, an arm contusion, a fractured right wrist, and chronic
    pain in her right hip.
    Angelo later testified that she was looking straight ahead when she tripped over the ball
    hitch on the pickup truck. She further testified that she did not notice anything unusual about the
    pickup truck, and she did not recall any rain or other unusual weather.
    Angelo filed a claim for benefits with the Virginia Workers’ Compensation Commission
    (the “commission”) on January 31, 2008. On April 25, 2008, the deputy commissioner awarded
    benefits to Angelo, finding that her injuries arose out of and in the course of her employment.
    On May 6, 2008, employer filed a request for review of the deputy commissioner’s
    decision. Upon review, a majority of the full commission reversed the deputy commissioner’s
    decision that claimant’s injury arose out of her employment, stating:
    There is no connection between [Angelo’s] employment and a ball
    hitch on a vehicle in the employer’s parking lot. Any parking lot
    could have a vehicle with a hitch protruding from its rear. There is
    nothing that connected the ball hitch to the conditions under which
    the work was performed or as a result of some employment-related
    situation. The general public has the same risk in any parking lot
    at anytime. The vehicle was not a company vehicle or one that the
    employer forced to park in a certain spot. There is nothing
    separating the vehicle with the ball hitch at [Angelo’s]
    employment from a vehicle with a hitch in any other parking lot.
    Angelo appeals.
    II. ANALYSIS
    Under the Workers’ Compensation Act, an injured employee “must prove by a
    preponderance of the evidence that the injury arose ‘out of and in the course of the
    employment.’” Lucas v. Fed. Express Corp., 
    41 Va. App. 130
    , 133, 
    583 S.E.2d 56
    , 58 (2003)
    (quoting Code § 65.2-101). In the present case, it is undisputed that Angelo’s injury occurred in
    the course of her employment. The only issue is whether Angelo proved the injury arose out of
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    her employment. 1 “Whether an injury arises out of and in the course of employment involves a
    mixed question of law and fact, which we review de novo on appeal.” Blaustein v. Mitre Corp.,
    
    36 Va. App. 344
    , 348, 
    550 S.E.2d 336
    , 338 (2001).
    “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 Serv. v.
    Barbour, 
    8 Va. App. 482
    , 484, 
    382 S.E.2d 305
    , 306 (1989). Merely proving a fall occurred at
    work, even at an unfamiliar location, does not prove a causative danger of the workplace.
    Southside Virginia Training Ctr. v. Shell, 
    20 Va. App. 199
    , 203-04, 
    455 S.E.2d 761
    , 763 (1995).
    Rather, the claimant “must show that a condition of the workplace either caused or contributed to
    her fall.” Id. at 202, 
    455 S.E.2d at 763
    . In other words, “[a] ‘critical link’ must exist between
    the conditions of the workplace and the injury in order for the injury to qualify as ‘arising out of’
    the employment.” Pinkerton's Inc. v. Helmes, 
    242 Va. 378
    , 380, 
    410 S.E. 2d 646
    , 647 (1991).
    Furthermore, “[t]he actual determination of causation is a factual finding that will not be
    disturbed on appeal if there is credible evidence to support the finding.” Ingersoll-Rand Co. v.
    Musick, 
    7 Va. App. 684
    , 688, 
    376 S.E.2d 814
    , 817 (1989).
    The commission, in denying Angelo’s benefits, found that there was no connection
    between the truck with a ball hitch in employer’s parking lot and the conditions under which
    1
    We note that the commission applied the personal comfort doctrine incorrectly in the
    present case. The commission concluded that “[s]moking is within the personal comfort
    doctrine, and [Angelo] was still in the course of her employment while she was outside,” but
    then the Commission determined that the personal comfort doctrine did not apply because
    Angelo’s injury did not arise out of her employment. The personal comfort doctrine operates
    only to keep the employee within the course of employment; it has no bearing on whether the
    injury arises out of the employment. See Cadmus Magazines v. Williams, 
    30 Va. App. 129
    , 132,
    
    515 S.E.2d 797
    , 798 (1999) (citing 2 Larson, The Law of Workmen’s Compensation ch. 21, p.
    21-1 (1999)) (“Employees who, within the time and space limits of their employment, engage in
    acts which minister to personal comfort do not thereby leave the course of employment, unless
    the extent of the departure is so great that an intent to abandon the job temporarily may be
    inferred, or unless, in some jurisdictions, the method chosen is so unusual and unreasonable that
    the conduct cannot be considered an incident of the employment”).
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    Angelo must perform her job. Thus, the commission implicitly found that there was no ‘critical
    link’ between the conditions of the workplace and Angelo’s injury and that, therefore, the
    presence of a truck with a ball hitch in the employer’s parking lot was not a work-related risk.
    Angelo, on the other hand, asserts that the work-related risk in this case was “the
    existence and proximity of a vehicle in the employer’s parking lot equipped with a ball hitch not
    seen or noticed by her until her knee struck it as she was exiting her vehicle to return to the
    facility.” She argues that the presence of a truck with an unnoticed ball hitch was analogous to a
    defect or abnormal condition in the parking lot.
    Were we to accept such an argument, it would be necessary for us to find that the pickup
    truck or the ball hitch was, in fact, defective or an abnormal condition of employer’s parking lot.
    This we cannot do. When the commission’s findings are supported by credible evidence, we will
    not disturb them on appeal. Celanese Fibers Co. v. Johnson, 
    229 Va. 117
    , 121, 
    326 S.E. 2d 687
    ,
    690 (1985). An examination of the facts in the present case demonstrates that there is nothing to
    indicate that either the pickup truck or the ball hitch was defective. In fact, Angelo testified that
    there was nothing unusual about the pickup truck or the ball hitch. Furthermore, the presence of
    a pickup truck with a ball hitch is not an “abnormal condition” under our jurisprudence. See,
    e.g., Reserve Life Ins. Co. v. Hosey, 
    208 Va. 568
    , 
    159 S.E.2d 633
     (1968) (a higher than normal
    stair is an abnormal condition); Williams, 30 Va. App. at 129, 515 S.E.2d at 797 (wet and
    slippery concrete steps at main entrance to employer’s building is an abnormal condition); Price
    v. Pan American World Airways, 
    6 Va. App. 268
    , 
    368 S.E.2d 96
     (1988) (icy patch in front of the
    entrance to the building housing employer’s offices is an abnormal condition).
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    III. CONCLUSION
    In the present case, Angelo failed to prove by a preponderance of the evidence that her
    injury arose out of her employment. As such, the decision of the commission is affirmed.
    Affirmed.
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