COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Felton
Argued at Salem, Virginia
VFP, INC. AND
FEDERAL INSURANCE COMPANY
OPINION BY
v. Record No. 1191-02-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
NOVEMBER 26, 2002
BERLE SHEPHERD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert C. Baker, Jr. (Dobbs & Baker, on
brief), for appellants.
(Robert B. Hines, II; Montgomery & Hines,
PC, on brief), for appellee. Appellee
submitting on brief.
VFP, Inc. (employer), contends the Workers' Compensation
Commission (commission) erred in awarding medical and temporary
total benefits to Berle Shepherd (claimant). The sole issue on
appeal is whether credible evidence supports the commission's
finding that claimant's injury arose out of his employment. We
affirm the commission.
I. BACKGROUND
On February 12, 2001, while claimant was assembling a
building for employer, he injured his back descending from a
scaffold on "ladder-type" steps. The photographs admitted into
evidence establish the scaffolding to be approximately ten feet
high and accessed only by the ladder-type steps. He carried a
remote control device either over his shoulder or in his hand.
Claimant described the steps as grated metal and approximately
two feet in width. Claimant stated, "I was bringing a wall off
the wall rack and was coming down the steps and slipped and
caught myself and hurt my back." He said he did not fall, but
slipped down one step. He said he "had the [crane] control over
my right . . . arm." Claimant reported the injury to his
supervisor and sought medical treatment the same day. Claimant
did not state directly that a "condition of the workplace caused
his injury." 1
Claimant treated with Dr. J. Bryston Winegar and was
diagnosed with acute muscoligamentous lumbar strain. He
underwent a CT scan which showed a bulging disc at L-5, S-1 with
no encroachment on the thecal sac or nerve root. He was treated
conservatively with medication and rest. Physical therapy was
prescribed but never completed.
Claimant filed a claim for benefits. The deputy
commissioner denied the claim because although the "claimant
suffered an injury by accident that occurred during the course
of employment, . . . we [sic] cannot find that his accident and
injury arose out of the employment."
Claimant appealed, and the commission reversed the deputy
commissioner's decision. The commission found that:
1
Both parties stipulated that no evidence proved the steps
were defective. Thus, the issue to be determined is whether
claimant's injury was caused by a "condition of employment."
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[h]ere, the evidence does not indicate that
the claimant's activity at the time of his
injury was particularly strenuous or
awkward, but he was required to descend from
an industrial scaffold on a steep attached
ladder with a cable-attached remote on his
shoulder and/or in his hand. This was a
sufficiently work-related condition or
exertion to fit within the standard
established in Grove [v. Allied Signal,
Inc., 15 Va. App. 17, 421 S.E.2d 32 (1992)],
and was certainly not a "hazard to which the
employee would have been equally exposed
apart from his employment." United Parcel
Service v. Fetterman, 230 Va. 257, 258-59,
336 S.E.2d 892, 893 (1985). Accordingly, we
find that the claimant offered sufficient
proof that a condition of his work or
work-related exertion caused his injury by
accident . . . .
Employer appealed that decision.
II. ANALYSIS
Employer contends that no credible evidence supports the
commission's finding that claimant's injury arose out of his
employment. We disagree.
"On appeal, we view the evidence in the light most
favorable to the claimant, who prevailed before the commission."
Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d
335, 340 (1998) (citations omitted). "'Decisions of the
commission as to questions of fact, if supported by credible
evidence, are conclusive and binding on this Court.'" WLR Foods
v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997)
(quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227,
229, 409 S.E.2d 824, 826 (1991)). "Where reasonable inferences
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may be drawn from the evidence in support of the commission's
factual findings, they will not be disturbed by this Court on
appeal." Hawks v. Henrico County School Board, 7 Va. App. 398,
404, 374 S.E.2d 695, 698 (1988). "[The Workers' Compensation
Act] has always required the claimant to carry the burden of
proving, by a preponderance of the evidence, . . . an 'injury by
accident' . . . arising out of and . . . in the course of, the
employment." Morris v. Morris, 238 Va. 578, 584, 385 S.E.2d
858, 862 (1989).
"We have held that in order for a fall on stairs to be
compensable there must either be a defect in the stairs or
claimant must have fallen as a result of a condition of
employment." Buchanan School Board v. Horton, 35 Va. App. 26,
29, 542 S.E.2d 783, 785 (2001) (citing Southside Virginia
Training Center v. Shell, 20 Va. App. 199, 203, 455 S.E.2d 761,
763 (1995)).
Employer contends that claimant failed to establish that
his fall and injury were sufficiently work related to trigger
coverage because he did not, in his testimony, directly link the
injury to a condition of his employment. We disagree. The
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, in its decision whether or not a condition
of the workplace caused the injury. As the Supreme Court stated
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in Van Geuder v. Med. Coll. of Va., 192 Va. 548, 65 S.E.2d 565
(1951), this criteria is met when the "circumstantial evidence
. . . take[s] the question beyond surmise or conjecture . . . ."
Id. at 557, 65 S.E.2d at 571, cited with approval in Marriott
Int'l v. Carter, 34 Va. App. 209, 539 S.E.2d 738 (2001).
"[Claimant's] evidence [must] demonstrate to the rational mind
that [claimant's injury] is fairly . . . traced to [his or] her
employment as the proximate cause. That may be accomplished by
circumstantial evidence . . . ." Id.
In the instant case, the evidence established that claimant
was not traversing "ordinary steps." He was descending from a
scaffolding approximately ten feet in height on steep,
ladder-type steps. Additionally, the steps were "straight down
and he carried a remote control cable over his arm." We agree
with the commission that the analysis pertaining to ordinary
steps and stairways is inapplicable to ladders or scaffolding
because of the increased risks. See Mangum v. Mecklenburg
Correctional Center, VWC 192-69-05 (June 29, 1999), and Hepp v.
Phillip Morris USA, VWC 187-72-11 (January 11, 1999). Credible
evidence supports the commission's finding that the evidence
established that his fall was caused by a risk or hazard of the
workplace.
For the foregoing reasons, the decision of the commission
is affirmed.
Affirmed.
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