Ruth Lindsay v. Domestic Linen Supply ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
RUTH LINDSAY
MEMORANDUM OPINION*
v. Record No. 2152-01-1 PER CURIAM
DECEMBER 11, 2001
DOMESTIC LINEN SUPPLY & LAUNDRY AND
TRAVELERS INDEMNITY COMPANY OF ILLINOIS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(John H. Klein; Montagna Breit Klein Camden,
L.L.P., on brief), for appellant.
(Allen Lotz; Huff, Poole & Mahoney, P.C., on
brief), for appellees.
Ruth Lindsay (claimant) contends the Workers' Compensation
Commission erred in finding that she failed to prove she
sustained an injury by accident arising out of her employment on
June 22, 2000. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision.
Rule 5A:27.
"A finding by the Commission that an injury [did or did not
arise] out of and in the course of employment is a mixed finding
of law and fact and is properly reviewable on appeal." Dublin
Garment Co., Inc. v. Jones, 2 Va. App. 165, 167, 342 S.E.2d 638,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
638 (1986). However, unless we can say as a matter of law that
claimant's evidence sustained her burden of proof, the
commission's findings are binding and conclusive upon us. See
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
"The claimant [has] the burden of establishing, by a
preponderance of 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). The claimant
"must show that a condition of the workplace either caused or
contributed to her fall." Southside Virginia Training Ctr. v.
Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995). This
analysis "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 [claimant] 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).
Claimant testified that on June 22, 2000, while working for
employer as a district manager, she stopped at Interstate
Warehousing to make an unsolicited sales call. She testified
that she parked her truck and then walked to what she thought
was the front door. After realizing the door was locked, she
turned to leave and her "right foot hung into a crack in the
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sidewalk." She stated that the crack "grabbed a hold of my
right shoe, toe end of the shoe" and that this caused her to
"trip" and "fall." She testified that her "right leg sandwiched
my left foot between the curb and the sidewalk. Actually right
on the curb." She stated that she fell towards the parking lot
and her left foot was "crushed" under her right leg.
Claimant identified numerous photographs she claimed to
have taken the day after the incident. The photographs depict a
concrete sidewalk area between a parking lot and three concrete
steps leading up to a flat concrete area immediately outside a
building with a glass panel door. The sidewalk has "seams"
perpendicular to the parking lot. The concrete sections shown
in the photographs appear to be level, with a few minor cracks
in the curbing and adjacent structures.
Claimant identified one particular seam as being the cause
for her trip and fall. That seam has a small perpendicular
crack running from it and parallel to the parking lot. Claimant
did not state exactly how the crack caused her fall, although
she claimed that the concrete section containing the crack was
higher than the section immediately next to it.
Paul Denver, insurer's investigator, inspected the area and
took photographs where claimant allegedly fell. He located the
seam identified by claimant and ran his foot over that seam and
crack. He found that neither of the concrete sections was
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higher than the other. He noticed "no imperfections in the walk
itself." He stated that the crack identified by claimant did
not stand out to him at the time of his inspection.
The medical records reflect that claimant sought treatment
with Dr. G. Bayley Royer on June 22, 2000. Dr. Royer recorded a
history of "left ankle injury, roughly 2 hr ago. Was walking at
work and stepped off curb incorrectly. Twisted her left leg
inward." Dr. Royer diagnosed left ankle sprain.
On June 27, 2000, Dr. Kent E. Willyard examined claimant
and recorded a history of "walking at work and stepped off a
curb and twisted her left foot in an apparent inversion injury
. . . . She states she simply slipped on the curb." Dr.
Willyard referred claimant to orthopedic surgeon, Dr. Boyd W.
Haynes, who recorded a history on July 25, 2000 of "injury to
her left foot when she was going up to do a cold call on June 22
. . . , she tripped with her foot in a plantar flexed manner and
pinned her foot against the concrete curb and her body."
In her July 28, 2000 recorded statement given to the
insurer, claimant described the June 22, 2000 incident as
follows:
I was cold calling out in Oakland Industrial
Park door, uh, business to business. Um, I
was going into --- I parked my truck in
front of Interstate Warehousing . . . I
parked my truck, and I walked into what I
thought was the front door, which was
locked, and I knew that this wasn't the
front door. So as I turned around, my right
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foot shoe hung into part of the concrete
sidewalk and through [sic] me off balance.
My whole body twisted and my right leg fell
on my left leg, which landed sandwiched
between the curb and sidewalk on my right
foot.
With respect to the cause of her fall, claimant stated:
Well, it hung on something, because it
tripped me enough to make me lose my
balance. I'm not gonna say it’s the
concrete, but I was on the sidewalk. I
don't know if it was an indenture in the
sidewalk. I don't, I, I haven't driven back
there to look at it. All I know is my shoe,
my right shoe made me stumble. And it, and
it hung on, it, it caught on something on
the sidewalk that made me stumble.
Claimant then stated that it was the sidewalk that caused her to
fall, but she was not sure what it was that made her foot catch
and throw her off balance. She believed that the sidewalk was
not "level ground," but she could not identify any debris that
caused her to fall. In the claim filed with the commission on
August 14, 2000, claimant indicated the cause of her fall was
"uneven concrete."
The commission examined the photographs and concluded:
[They] do not by themselves establish a
defect. . . . The photographs . . . do not
reflect any variation in the height of the
two concrete sections that abutted to make
the suspect seam. The photographs do not
reflect the actual size of the various
features, and neither side offered any
precise measurements of height, length,
width, or whether the seam or crack was
level or unlevel.
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In addition, the commission rejected claimant's hearing
testimony, finding as follows:
During [claimant's] initial medical
treatment, the claimant reported to both
Dr. Bayley [sic] and Dr. Willyard that her
injury occurred when she twisted her ankle
while stepping off of a curb. Nothing about
the curb was implicated at the hearing, and
the claimant now claims a "crush" injury,
rather than a "twist" injury. The first
reference to a "trip" in the medical history
appears more than a month after the
accident, at which point the claimant
describes having pinned her foot on the
curb.
During the hearing, the claimant
clearly testified that she took her
photographs on the day after the accident,
and that she visited the site before giving
her recorded statement to the insurer. The
transcript of that recording, however,
reveals that the claimant attributed her
accident to tripping on "something," but
would not at that time "say it was the
concrete." She told the insurer at that
time that she did not know whether her
accident was caused by an "indenture" in the
concrete, stating that she had not been back
to look at the accident location.
The claimant first reported having
tripped in a specific way, from a specific
defect, at the evidentiary hearing. This
testimony directly contradicts the
contemporaneous accident history reported to
the claimant's physicians, and there is no
explanation for the claimant's ability to
recall such a specific accident description
at the hearing –- almost eight months after
the accident -- and her inability to do so
only one month after the accident.
The commission weighed the evidence and found
inconsistencies between claimant's hearing testimony, the
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initial histories of her accident reported to Drs. Royer and
Willyard, the content of her recorded statement to the insurer,
and Denver's testimony. Based upon these inconsistencies,
coupled with the lack of any evidence of any variation in height
of the sidewalk and the lack of any evidence of an apparent
defect in the sidewalk as shown in the photographs, the
commission, as fact finder, was entitled to reject claimant's
testimony and to conclude that she "failed to prove that she was
exposed to a risk of injury peculiar to her employment while on
the premises of Interstate Warehousing on June 22, 2000, and
failed to prove that her accidental injuries were causally
related to such a risk."
Absent claimant's testimony, no evidence established that
any condition of her workplace either caused or contributed to
her fall. Specifically, no evidence established that a defect
in the sidewalk caused her to trip and fall. Accordingly, we
cannot find as a matter of law that claimant proved she
sustained an injury by accident arising out of her employment on
June 22, 2000.
For these reasons, we affirm the commission's decision.
Affirmed.
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