COURT OF APPEALS OF VIRGINIA
Present: Judges McClanahan, Petty and Beales
Argued at Salem, Virginia
CITY OF WAYNESBORO AND
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
OPINION BY
v. Record No. 1347-07-3 JUDGE WILLIAM G. PETTY
MARCH 4, 2008
DEWAYNE W. GRIFFIN
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Ralph L. Whitt, Jr. (Whitt & Del Bueno, P.C., on briefs), for
appellants.
Caleb M. Echterling (Ritchie Law Firm, P.L.C., on brief), for
appellee.
The City of Waynesboro and the Virginia Municipal Group Self-Insurance Association
(collectively referred to as employer) challenge an award of workers’ compensation benefits.
Employer argues that the commission erred by holding that Dewayne W. Griffin suffered an injury
by accident although the claimant cannot remember how he was injured. We disagree with
employer and affirm the commission.
I. BACKGROUND
We construe the evidence on appeal in the light most favorable to the claimant as the
party prevailing below. Whitlock v. Whitlock Mechanical/Check Services, Inc., 25 Va. App.
470, 479, 489 S.E.2d 687, 692 (1997). Griffin worked for the employer as a landfill technician
and equipment operator at the time of the accident. He testified that he was about 5’8” or 5’9”
tall and weighed about 250 to 260 pounds. On the day of the accident, Griffin drove a front-end
loader up ramps onto a flatbed trailer. The flatbed trailer is three and one-half feet above the
ground, while the front-end loader cab was an additional three feet above the ground. After he
parked the loader on top of the trailer, he began to climb out of the relatively small cab of the
loader. 1 Griffin testified that he placed his left foot onto the step outside the loader, with his
back facing outward. He brought his right foot down to the step, but does not remember setting
his right foot onto the step. Instead, he rocked his body forward to make sure that he had applied
the brake in the loader. At some point after that, Griffin fell and suffered a concussion, loss of
consciousness, neck and back pain, and injuries to his right rib, shoulder, and palm. Griffin
testified that he did not recall actually placing a foot on the flatbed trailer and does not know
when he fell or why. 2 There were no witnesses to the event.
The deputy commissioner, relying on Basement Waterproofing v. Beland, 43 Va. App.
352, 597 S.E.2d 286 (2004), found that given the surrounding circumstances of the accident, he
could infer that Griffin’s fall and resulting injury arose from a risk of his employment: “While
exiting the cab, which had a worn and rusty step, the claimant apparently lost his grip or his
balance and fell to the ground. Under these specific circumstances . . . the claimant’s work
environment and work-related activities caused his injuries.” The full commission affirmed the
deputy commissioner’s award of benefits for the same reasons, and this appeal followed.
1
Griffin submitted photographs of the trailer and front-end loader as well as the step on
which he descended from the front-end loader’s cab. The pictures also demonstrated Griffin’s
size compared to the door of the front-end loader.
2
Employer argues on appeal that Griffin’s statements to investigators, his employers, and
at court were inconsistent and therefore incredible. Both the deputy commissioner and the full
commission found Griffin to be credible. See Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App.
374, 381, 363 S.E.2d 433, 437 (1987) (Credibility determinations are within the commission’s
exclusive purview.).
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II. ANALYSIS
Employer submitted four questions for our consideration in this case. However, taken as a
whole, they present one issue: whether the commission impermissibly awarded benefits for an
unexplained accident.
A. Standard of Review
Our standard of review in this case is well settled. The commission’s decision that an
accident arises out of the employment is a mixed question of law and fact and is therefore
reviewable on appeal. Blaustein v. Mitre, 36 Va. App. 344, 348, 550 S.E.2d 336, 338 (2001).
By statute, the commission’s factual findings are conclusive and binding on this Court when
those findings are based on credible evidence. K & K Repairs & Constr. v. Endicott, 47
Va. App. 1, 6, 622 S.E.2d 227, 230 (2005) (citing Code § 65.2-706). Moreover, the existence of
“contrary evidence . . . in the record is of no consequence if credible evidence supports the
commission’s finding.” Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d
824, 826 (1991).
Instead, “we are bound by these findings of fact as long as “‘there was credible evidence
presented such that a reasonable mind could conclude that the fact in issue was proved.’” Perry
v. Delisle, 46 Va. App. 57, 67, 615 S.E.2d 492, 497 (2005) (quoting Westmoreland Coal Co. v.
Campbell, 7 Va. App. 217, 222, 372 S.E.2d 411, 415 (1988)) (emphasis in original). On appeal,
we defer to the commission’s assessment of the “probative weight” of the proffered evidence,
and we recognize that the commission “is free to adopt that view ‘which is most consistent with
reason and justice.’” Georgia-Pac. Corp. v. Robinson, 32 Va. App. 1, 5, 526 S.E.2d 267, 269
(2000) (quoting C.D.S. Const. Servs. v. Petrock, 218 Va. 1064, 1070, 243 S.E.2d 236, 240
(1978)).
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Moreover, “[t]he commission, like any other fact finder, may consider both direct and
circumstantial evidence in its disposition of a claim. Thus, the commission may properly
consider all factual evidence, from whatever source, whether or not a condition of the workplace
caused the injury.” VFP, Inc. v. Shepherd, 39 Va. App. 289, 293, 572 S.E.2d 510, 512 (2002).
B. Compensable Injury
In this case, employer asserts that Griffin failed to prove that his fall “arose out of” his
employment. Employer reasons that because Griffin cannot recall the circumstances of the
accident, the fall is “unexplained” as a matter of law. See Pinkerton’s Inc. v. Helmes, 242 Va.
378, 381, 410 S.E.2d 646, 648 (1991) (There is no presumption of compensability when a
workplace accident resulting in an injury is unexplained.). Employer is correct that, under our
Workers’ Compensation Act, an employee must prove by a preponderance of the evidence that
his injury arose “out of and in the course of [his] employment” to qualify for compensation
benefits. Code § 65.2-101; see also Marketing Profiles v. Hill, 17 Va. App. 431, 433, 437 S.E.2d
727, 729 (1993) (en banc). However, applying the law to the facts as found by the commission,
we hold that the commission did not err in awarding benefits, and affirm.
The mere fact that an employee was injured at work is not enough to show that his injury
arose out of his employment. County of Chesterfield v. Johnson, 237 Va. 180, 185, 376 S.E.2d
73, 75 (1989). Instead, the employee must show that his injury resulted from an “actual risk” of
the employment. Id. This requirement can only be met “if there is a causal connection between
the claimant’s injury and the conditions under which the employer requires the work to be
performed.” R.T. Investments v. Johns, 228 Va. 249, 252-53, 321 S.E.2d 287, 289 (1984).
This causal connection is established when “the injury can be seen to have followed as a
natural incident of the work and to have been contemplated by a reasonable person familiar with
the whole situation as a result of the exposure occasioned by the nature of the employment.”
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Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). This “causative danger”
or risk “must be peculiar to the work . . . . It must be incidental to the character of the business
and not independent of” the employment relationship. Combs v. Virginia Elec. & Power Co.,
259 Va. 503, 509, 525 S.E.2d 278, 282 (2000) (citation omitted). An injury arising from a
hazard to which the claimant “would have been equally exposed apart from the employment”
and that “cannot fairly be traced to the employment as a contributing proximate cause” does not
constitute an injury arising from the employment. Id.
When a claimant has no memory of how the accident occurred and there are no witnesses
to the accident, that claimant often cannot fulfill his or her burden to show this vital causal nexus
between the employment and the injury. See, e.g., Mem’l Hosp. v. Hairston, 2 Va. App. 677,
679, 347 S.E.2d 527, 527-28 (1986) (reversing a benefits award when the claimant had no
memory of how she fell, there were no witnesses to the fall, and the claimant fell on a floor that
was free of obstacles or any other condition that would otherwise contribute to her fall). Such
“unexplained falls” are not compensable because the claimant cannot prove that the injury arose
out of the employment. See Hill v. S. Tank Transp., Inc., 44 Va. App. 725, 733, 607 S.E.2d 730,
734 (2005) (“[F]acts must exist to explain how the accident occurred.”). However, the mere
nonexistence of direct evidence in the form of the claimant’s memory or an eyewitness’ account
does not, in and of itself, preclude an award of benefits.
On the contrary, the commission may find an explanation for an accident based on
circumstantial evidence, when that evidence “allow[s] an inference that the claimant suffered an
injury by accident arising out of . . . his employment.” Marketing Profiles, 17 Va. App. at 433,
437 S.E.2d at 728. There is sufficient circumstantial evidence to support such an inference when
“‘the circumstantial evidence . . . takes the question beyond surmise or conjecture . . . .’” VFP,
Inc., 39 Va. App. at 293, 572 S.E.2d at 512 (quoting Van Geuder v. Commonwealth, 192 Va.
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548, 557, 65 S.E.2d 565, 570-71 (1951)); see also Marriott Int’l v. Carter, 34 Va. App. 209, 215,
539 S.E.2d 738, 741 (2001) (“[T]he commission may rely upon circumstantial evidence in
finding that an injury was caused by a particular accident.”).
For instance, in Beland, 43 Va. App. at 358-60, 597 S.E.2d at 289-90, we affirmed the
commission’s award of benefits although the employee could not remember how he was injured,
nor could he “specifically describe the last discrete event” that led to his fall. Id. at 359, 597
S.E.2d at 289. We held that “this accident was not unexplained.” Id. In Beland, as in this case,
the commission made specific factual findings regarding the circumstances surrounding the
claimant’s fall. Id. at 355-56, 597 S.E.2d at 287-88. There, the claimant’s “duties required him
to stretch half the length of his body away from [a] ladder to apply . . . tar. He was unable to
hold on to the ladder for support because he had a 20 to 30 pound bucket of tar in one hand and a
glove to apply the tar on the other.” Id. at 359-60, 597 S.E.2d at 289. Immediately prior to his
fall from the ladder, the employee was “to one side stretching out . . . half his body” to reach the
holes to which he was applying tar. Id. at 360, 597 S.E.2d at 290 (internal quotation marks
omitted).
On those facts, we held that, although “claimant did not recall the specific moment of
falling, he described his actions and locations immediately before the fall in detail. That
evidence, combined with the other circumstances, created the ‘critical link’ between claimant’s
employment, his fall and resulting injury.” Id. Thus we found that the commission “properly
inferred from the evidence, both circumstantial and direct, that the claimant’s injury arose out of
his employment.” Id.
Here, the commission made specific findings based on direct and circumstantial evidence
and the logical inferences drawn from that evidence to support its conclusion that the fall arose
out of claimant’s employment. The commission found that Griffin was in an awkward position
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attempting to get out of the front-end loader while also attempting to lean in and check the
brakes. It also found that he was descending from the considerable height of six and one-half
feet down a worn and rusted step. The commission made the reasonable inference from these
facts that Griffin’s accident arose out of his employment because he was exposed to a risk in his
employment – executing an awkward maneuver in order to get out of the cab and descending
from a considerable height on a worn, rusted step – to which he would not equally be exposed in
his ordinary, non-work life. See Combs, 259 Va. at 509, 525 S.E.2d at 282; cf. Hairston, 2
Va. App. at 679, 347 S.E.2d at 527-28. Thus, like the accident in Beland, this accident is not
unexplained. The explanation can be found in the evidence and the reasonable inferences the
commission drew from that evidence.
Employer, however, argues that the commission erred in this case by failing to follow this
Court’s decision in PYA/Monarch v. Harris, 22 Va. App. 215, 220-21, 468 S.E.2d 688, 690-91
(1996), rather than the Beland decision. However, PYA/Monarch is legally and factually
distinguishable from this case; hence, we disagree with employer’s analysis.
In PYA/Monarch, we reversed an award of benefits when the commission “made no
specific finding regarding the cause of claimant’s fall.” Id. at 220, 468 S.E.2d at 690. The
claimant in that case, who argued that he had been injured when climbing out of the cab of a
truck, only remembered opening the truck door and reaching for a grab bar. Id. at 219-20, 468
S.E.2d at 690. He did not testify that he was attempting to climb out of the truck, or that he was
in an awkward position. Id. Moreover, he did not testify that he came into contact with the icy
conditions that the commission was “persuaded” precipitated “the fall.” Id.
Most importantly, this Court emphasized that the commission “made no specific finding
regarding the cause of claimant’s fall because it found that ‘the elevated height of the trailer cab
constituted an added risk of the employment that caused or contributed to the claimant’s
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injuries.’” Id. at 220, 468 S.E.2d at 690. Instead, the commission relied upon the equivocal
testimony of a medical expert who opined that the claimant’s fall “could have been caused” by a
medical condition. Id. at 220, 469 S.E.2d at 690. The commission then improperly applied the
increased risk analysis applicable in idiopathic fall cases to an unexplained fall scenario. See id.
at 225, 469 S.E.2d at 693. Thus, PYA/Monarch involved a different error of law than that
asserted by the employer in this case: the commission’s improper conflation of the doctrine of
idiopathic falls (falls resulting from a pre-existing medical condition of the claimant
compensable only when the conditions of the workplace aggravate the claimant’s injury) and the
doctrine of unexplained falls.
Because credible evidence and “reasonable inferences . . . drawn from the evidence” exist
here that support the commission’s findings, we will not disturb the commission’s decision “on
review, even though there is evidence in the record to support a contrary finding.” Morris v.
Badger Powhatan/Figgie Int’l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986).
III. CONCLUSION
We hold that there is sufficient evidence from which the commission could find that the
claimant’s injuries were attributable to a risk of employment and thus compensable Accordingly,
we affirm.
Affirmed.
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McClanahan, J., dissenting.
I see no appreciable distinction between this case and PYA/Monarch v. Harris, 22
Va. App. 215, 468 S.E.2d 688 (1996). The majority points to differences in PYA/Monarch and
the instant case, but such differences are not material to the ratio decidendi of PYA/Monarch.
Furthermore, the majority, like the commission, bases its decision on Basement Waterproofing v.
Beland, 43 Va. App. 352, 597 S.E.2d 286 (2004); however, the clear distinction between the
instant case and Beland is that here, unlike Beland, the claimant was not in a “uniquely
dangerous” position at the time of his injury. Id. at 360, 597 S.E.2d at 290; cf. Turf Care, Inc. v.
Henson, __Va. App. __, __ S.E.2d __ (March 4, 2008). For these reasons, I would reverse the
commission’s decision in this case. I therefore respectfully dissent.
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City of Waynesboro v. Griffin
Court: Court of Appeals of Virginia
Date filed: 2008-03-04
Citations: 657 S.E.2d 782, 51 Va. App. 308
Copy Citations