S T G, Inc. and Travelers Indemnity v. Ivan Tooks

Tuesday 23rd
October, 2001.
S T G, Inc. and
Travelers Indemnity Company, Appellants,
against Record No. 2664-00-4
Claim No. 196-57-09
Ivan H. Tooks, Appellee.
Upon a Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Elder, Bray,
Annunziata, Bumgardner, Frank, Humphreys, Clements and Agee
Amy L. Epstein (Law Offices of Roger S.
Mackey, on brief), for appellants.
Andrew S. Kasmer for appellee.
By unpublished opinion, a divided panel of this Court
reversed the decision of the Workers' Compensation Commission.
S T G, Inc. v. Tooks, No. 2664-00-4 (Va. Ct. App. June 12,
2001). We stayed the mandate of that decision and granted
rehearing en banc.
Upon a rehearing en banc, the stay of the June 12,
2001 mandate is lifted, and the order of the commission is
reversed in accordance with the majority panel opinion.
Chief Judge Fitzpatrick, Judges Benton, Elder and
Annunziata dissent for the reasons set forth in the panel
dissent.
This order shall be certified to the Virginia Workers'
Compensation Commission.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
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COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Clements
Argued at Alexandria, Virginia
S T G, INC. AND
TRAVELERS INDEMNITY COMPANY
MEMORANDUM OPINION* BY
v. Record No. 2664-00-4 JUDGE RUDOLPH BUMGARDNER, III
JUNE 12, 2001
IVAN H. TOOKS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Amy L. Epstein (Law Offices of Roger S.
Mackey, on brief), for appellant.
Andrew S. Kasmer (Chasen & Boscolo, on
brief), for appellee.
S T G, Inc. and Travelers Indemnity Company appeal the
Workers' Compensation Commission's award of benefits to Ivan H.
Tooks. They raise several issues, but we only address the
contention the commission erred in finding the employee's injury
arose out of his employment. We conclude the commission erred
in that finding and reverse. Our decision makes it unnecessary
to address the remaining issues.
The employee was a computer network manager who updated
computer systems for the State Department. He was receiving
on-the-job training that required him to walk from his second
floor work area to a computer training lab on the first floor.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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The staircase consisted of two sets of steps divided by a
landing. The front portion of the stair tread had a vinyl,
crosshatched (skid proof) covering while the back portion was
smooth. The stairs complied with all codes and regulations.
The employee carried a three-ring notebook in his right
hand while walking down the steps. It contained his training
notes and weighed under one or two pounds. The employee walked
down the first set of steps without incident. While going down
the second set, he "stumbled and fell" when his "foot got caught
on the step." The employee missed five steps, landed on his
right ankle, and fell back on the stairs.
The commission affirmed the deputy's findings that the
employee's injury arose out of the employment. 1 It found the
injury compensable because the employee's foot caught on the
step and the binder he carried prevented him from grabbing onto
the handrail. "The claimant was carrying a binder in his right
1
The deputy concluded the claim was compensable because
there are added risks, peculiar to the
claimant's employment, which created a
hazard of the employment here. First, the
claimant was carrying a binder in his hands.
This prevented him from grabbing the
railing. Had he been able to do so, he may
well have been able to prevent the fall or,
at a minimum, lessen the effects of the
fall. Additionally, his foot caught on the
rubberized or textured portion of the steps.
While this is not a defect in the stairs, it
is not necessarily a condition to which the
claimant may be equally exposed outside his
employment.
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hand, which prevented him from grabbing on to the railing when
he fell. Additionally, his foot got stuck or caught in the
rubberized or textured part of the steps." One member dissented
because the claimant's statement that his "foot got caught was
impeached."
Whether an accident arises out of the employment is a mixed
question of law and fact reviewable on appeal. Mullins v.
Westmoreland Coal Co., 10 Va. App. 304, 307, 391 S.E.2d 609, 611
(1990). An employee's claim is compensable if he establishes
either that the stairs were defective or that there was a causal
connection between the way in which the work is required to be
performed and the resulting injury. County of Buchanan Sch. Bd.
v. Horton, 35 Va. App. 26, 29, 542 S.E.2d 783, 784-85 (2001);
Southside Virginia Training Ctr. v. Shell, 20 Va. App. 199, 203,
455 S.E.2d 761, 763 (1995).
In Horton, the commission awarded the employee benefits for
an injury resulting from a fall while attempting to descend some
steps because her heel caught. While the commission found no
defect in the step upon which the employee fell, it awarded
benefits because a condition of the employment caused the
injury. We reversed the commission's finding because there was
no evidence that a condition of the employment caused the
employee's fall.
In Shell, the employee injured herself when she fell down
stairs at work and was awarded benefits. She testified there
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was nothing unusual about the steps, they were well lit, and did
not contain any debris. We reversed the commission's finding
that the fall arose out of the employment because the steps were
not defective and there was no evidence the fall resulted from a
particular risk of the employment such as being hurried or
distracted.
In this case, the employee did not see any debris or
foreign objects and thought the steps were pretty clean. He
could recall nothing wrong with the steps. At one point he
suggested the height of the steps may have caused the fall but
could not state if they were steeper than normal. The employee
noted that the second set of steps was darker than the first but
was unsure if that affected his fall. He traversed the steps
twenty times a day without prior incident.
The employee presented no evidence of a defect in the
steps. His early explanations exclude any claims of defect in
the steps or the maintenance of them. At the hearing, he first
mentioned his foot "caught" on the textured portion of the
steps. However, his statement only describes the step. Nothing
in that statement suggests a defect or condition that would
cause a fall; nothing in the other evidence suggests it either.
As in Horton, the deputy found that the rubberized or textured
portion of the steps was not a defect in the stairs. The
commission made no finding that the steps were defective.
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While the employee claims that the textured vinyl stairs
was a condition that caused his fall, his testimony only stated
his foot "caught" on the textured portion of the step. That
testimony does no more than prove that he fell while traversing
the steps. Nothing supports the deputy's finding that "it is
not necessarily a condition to which the claimant may be equally
exposed outside his employment." The record contains no
photographs, diagrams, or samples from which to draw that
inference by inspection. The decision by the commission is not
based on finding that the step was defective or any facts that
support such a finding.
The commission also rests it decision on the fact the
employee was carrying a binder that prevented his grabbing the
railing as he fell. Under the actual risk test, the employee
must establish that he was at greater risk of injury as a result
of his employment than the general public. Olsten v. Leftwich,
230 Va. 317, 319, 336 S.E.2d 893, 894 (1985). In order to
prevail, the employee must prove a causal connection between the
manner in which the employer required the work to be performed
and the resulting injury.
The employee claimed carrying a binder was a condition of
the workplace that caused his fall. He testified on re-direct
examination, "when I was falling, I was on the right side of the
stairs. I couldn't reach the left side of the handrail to stop
myself and being that my right hand was already full with the
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binder, I couldn't grab the right rail, so I fell." No evidence
indicated how carrying the binder of training notes created a
danger peculiar to the workplace. Nothing inherent in the act
of negotiating steps while carrying the binder, which weighed no
more than two pounds, permitted that finding.
In Marion Corr. Treatment Ctr. v. Henderson, 20 Va. App.
477, 458 S.E.2d 301 (1995), we affirmed a finding that the
employee's injury arose out of his employment as a prison guard.
The employee fell down steps while looking at a guard tower.
His duties required him to receive an acknowledgement signal
from the tower guards. The employee had to observe the towers
rather than the steps he was traversing. "The way in which he
performed this aspect of his job increased his risk of falling
on this occasion and directly contributed to cause his fall and
injury." Id. at 480-81, 458 S.E.2d at 303 (citation omitted).
In this case, no evidence suggested that carrying the binder was
a risk greater than that faced by the general public.
Additionally, the employee's own evidence contradicts his
contention that carrying the binder caused his fall. When
specifically asked if the binder caused him to fall, the
employee replied, "No, it did not cause my fall, no." As in
Shell, the employee's "case can rise no higher than [his] own
uncontradicted testimony." 20 Va. App. at 203, 455 S.E.2d at
763 (citation omitted).
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The limited evidence supported neither a finding that the
steps were defective nor a finding that the conditions of
employment caused the accident. Accordingly, the commission
erred in concluding the injury arose out of the employment.
Accordingly, we reverse the decision.
Reversed.
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Annunziata, J., dissenting.
I respectfully dissent from the majority opinion reversing
the commission's decision. Appellant asserts claimant failed to
prove his injury "arose out of" his employment. "Whether an
accident arises out of employment is a mixed question of law and
fact . . . ." Mullins v. Westmoreland Coal Co., 10 Va. App.
304, 307, 391 S.E.2d 609, 611 (1990). It is well established
that, upon review, this Court construes the evidence before the
commission in the light most favorable to the party prevailing
below. See Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.
App. 503, 504, 339 S.E.2d 916, 916 (1986). Furthermore, factual
findings by the commission that are supported by credible
evidence are conclusive and binding upon this Court. Rose v.
Red's Hitch & Trailer Serv., Inc., 11 Va. App. 55, 60, 396
S.E.2d 392, 395 (1990). "In determining whether credible
evidence exists, [this Court will] not retry the facts, reweigh
the preponderance of the evidence, or make its own determination
of the credibility of the witnesses." Wagner Enterprises, Inc.
v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). The
fact that there is contrary evidence in the record is of no
consequence if there is credible evidence to support the
commission's findings. Id. In the instant case, the deputy
commissioner found the injury arose from Tooks's employment
based on the following findings of fact:
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We find that there are added risks, peculiar
to the claimant's employment, which created
a hazard of the employment here. First, the
claimant was carrying a binder in his hands.
This prevented him from grabbing the
railing. Had he been able to do so, he may
well have been able to prevent the fall or,
at a minimum, lessen the effects of the
fall. Additionally, his foot caught on the
rubberized or textured portion of the steps.
The full commission affirmed these findings and the conclusions
of law. Applying the requisite standard of review, I would
affirm the commission's decision.
To be sure, neither the deputy nor the full commission
found the steps were defective. Evidence of defect, however, is
not a prerequisite to an award where evidence in the record
supports the conclusion that a condition of employment, such as
something unusual about a step, is causally related to the
injury. County of Chesterfield v. Johnson, 237 Va. 180, 186,
376 S.E.2d 73, 76 (1989) (finding there was "nothing unusual
about or wrong with the steps" in question); see also Southside
Virginia Training Center v. Shell, 20 Va. App. 199, 201-02, 455
S.E.2d 761, 762 (1995). In Shell, we reversed an award on the
ground that "nothing in the record shows an abnormality in
either the angle of the rise or the dimensions of the tread or
carriage[,] a handrail is attached," and the claimant testified
"the area was well lit, . . . no foreign substance on the steps
caused her fall, and [] there was nothing unusual about the
steps." Shell, 20 Va. App. at 201-02, 455 S.E.2d at 762; see
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also County of Buchanan School Board v. Horton, 35 Va. 26, 31,
542 S.E.2d 783, 785 (2001) (claimant failed to prove step was
defective or a condition of her employment caused the fall).
The overarching principle which governs in such a case was
stated by the Virginia Supreme Court in Lipsey v. Case, 248 Va.
59, 445 S.E.2d 105 (1994): "an accident arises out of the
employment when it is apparent to a rational mind, under all
attending circumstances, that a causal connection exists between
the conditions under which the work is required to be performed
and the resulting injury." Id. at 61, 445 S.E.2d at 107; see
Johnson, 237 Va. at 183, 376 S.E.2d at 75; Marketing Profiles,
Inc. v. Hill, 17 Va. App. 431, 434, 437 S.E.2d 727, 729 (1993).
Accordingly, I would affirm the commission's decision to
award claimant benefits in this case. See Wagner Enterprises,
12 Va. App. at 894, 407 S.E.2d at 35; Rose, 11 Va. App. at 60,
396 S.E.2d at 345; see also Southern Motor Lines Co. v. Alvis,
200 Va. 168, 170-71, 104 S.E.2d 735, 737 (1958) ("[T]he phrase,
'arising out of' the employment should receive a liberal
construction to effectuate the humane and beneficent purposes of
the Act.").
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