Short Stop, Inc., etc. v. Patricia A. Hammond ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Clements
Argued at Alexandria, Virginia
SHORT STOP, INC. AND
TRAVELERS INDEMNITY COMPANY
OF ILLINOIS
MEMORANDUM OPINION* BY
v. Record No. 1676-00-2 JUDGE JERE M. H. WILLIS, JR.
MARCH 13, 2001
PATRICIA A. HAMMOND
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Jonnie L. Speight (Brian J. Brydges; Johnson,
Ayers & Matthews, on brief), for appellants.
J. William Watson, Jr. (Watson & Nelson,
P.C., on brief), for appellee.
Short Stop, Inc. and Travelers Indemnity Company of
Illinois (collectively referred to as "employer") appeal a
decision of the Workers' Compensation Commission awarding
benefits to Patricia A. Hammond. Employer contends that the
commission erred in finding that Ms. Hammond sustained an injury
by accident arising out of her employment on November 7, 1998.
Finding no error, we affirm.
I. BACKGROUND
On November 7, 1998, Ms. Hammond was employed as a clerk by
Short Stop, Inc., a convenience store located in Halifax,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Virginia. When she arrived at work, she noticed that one of the
cigarette ash cans near the store's entrance was filled with
paper. She picked up some of the pieces of paper from the ash
can and proceeded to walk down the sidewalk in front of the
store to discard the paper in a trash can located around the
corner of the building. While walking down the sidewalk, she
stepped on the top of a loading ramp and fell, fracturing her
leg.
At the hearing on March 31, 1999, Ms. Hammond testified
that she "knew the ramp was there" because she had "seen many
beer drivers and pop drivers deliver their product over it."
She testified that "I took a step---well, just [a] normal
walking step, slid, fell." Although she was uncertain of the
exact location, she stated that she stepped with her left foot
on the top part of the ramp and that her left foot slid straight
down to the bottom of the ramp. When asked whether she observed
any foreign substance or other material on the ramp that day,
she replied, "I don't know. I didn't look. I didn't see
anything. I didn't look at anything like that." In describing
the incident, Ms. Hammond stated that she did not have a
sensation like she was sliding on ice, but "[i]t was real
gritty---the slide---there's different kinds of slides, slips,
whatever. It wasn't like sliding on ice. It was a gritty
slide."
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Phillip Hammond, Ms. Hammond's son and the owner of the
convenience store, testified that he inspected the loading ramp
where Ms. Hammond fell immediately after the fall. He testified
that the ramp "[had] the broken concrete at the top. . . . It
had like a sandy gravel type buildup on the sides and towards
the bottom a little bit." When asked whether he had seen any
foreign substance or anything on the ramp that day, he replied,
"[T]he only thing I noticed was like the little grit--like you
can see at the bottom there's like a little sandy or dirt grit
and some along the seam just a little bit. That's all I
noticed."
In her November 16, 1998 recorded statement to employer's
insurance adjuster, Ms. Hammond admitted that she did not know
the cause of her fall. Ms. Hammond stated, "I don't know . . .
maybe the shoes [because] I did have leather sole shoes on
instead of like tennis shoes is what I normally wear. . . . And
that's the only thing I could think of was my shoes."
The deputy commissioner found that Ms. Hammond's injury did
not arise out of her employment. The deputy commissioner held
that there was "no non-speculative evidence of defects in the
ramp or other conditions which would constitute a risk of the
employment, i.e., no evidence that the condition of the ramp was
unsafe, defective, dangerous or hazardous or that this
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condition, if at all, proximately caused [Ms. Hammond's]
injuries."
The commission, in reversing the deputy commissioner, found
that Ms. Hammond's evidence proved that her injury by accident
arose out of a risk of the employment. The commission found:
[This] is not a situation where [Ms.
Hammond] was negotiating normal steps and
fell without explanation. This is not an
unexplained fall. [Ms. Hammond], while
performing her job duties, stepped on a
surface that was downward sloping at an
angle as depicted by the pictures, which was
not insignificant. Stepping onto this ramp
decline necessarily increased the risk of
slipping, which is what happened. [Ms.
Hammond] clearly testified that she stepped
on the ramp to go down and that her foot
slipped. The fall is not without
explanation. If the angle of the ramp had
been insignificant, such as the ramps one
finds for the handicapped while walking on
public sidewalks, the result may be
different. [Ms. Hammond] distinguished the
ramp on which she fell from a handicap ramp
by noting that a handicap ramp "declines
slowly." In addition, she stated that the
sensation while sliding was gritty. We find
that [Ms. Hammond], having slipped while
stepping on a downward sloping ramp while
performing her job duties, suffered injury
related to an employment risk because the
risk of slipping was increased.
"The commission's decision that an accident arises out of
the employment involves a mixed question of law and fact and is
thus reviewable on appeal." Southside Virginia Training Ctr. v.
Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995). "The
claimant had the burden of establishing, by a preponderance of
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the evidence, and not merely by conjecture or speculation, that
she suffered an injury by accident which arose out of . . . the
employment." Central State Hosp. v. Wiggers, 230 Va. 157, 159,
335 S.E.2d 257, 258 (1985). She was required to "show that a
condition of the workplace either caused or contributed to her
fall." Shell, 20 Va. App. at 202, 455 S.E.2d at 763. This
"excludes an injury which cannot fairly be traced to the
employment as a contributing proximate cause and which comes
from a hazard to which [Ms. Hammond] would have been equally
exposed apart from the employment." R & T Investments, Ltd. v.
Johns, 228 Va. 249, 253, 321 S.E.2d 287, 289 (1984). "[O]ur
inquiry must be whether credible evidence supports a finding
that a defect . . . or a condition of [Ms. Hammond's] employment
caused her to fall down . . . and injure herself." Shell, 20
Va. App. at 203, 455 S.E.2d at 763.
The evidence supports the commission's finding that the
condition of the loading ramp and the significant angle of the
ramp caused or contributed to cause Ms. Hammond to fall and
fracture her leg. The ramp was steep and had "grit" or dirt on
its surface. These conditions constituted a risk peculiar to
Ms. Hammond's employment. Thus, credible evidence shows a
causal connection between the conditions of Ms. Hammond's
employment and her fall and supports the commission's decision.
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Accordingly, we affirm the commission's decision.
Affirmed.
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