COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
COUNTY OF BUCHANAN SCHOOL BOARD AND
AIU INSURANCE COMPANY
OPINION BY
v. Record No. 1750-00-3 JUDGE ROBERT P. FRANK
MARCH 6, 2001
DIANA SUE HORTON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
S. Vernon Priddy, III (Patsy L. Mundy; Sands,
Anderson, Marks & Miller, on briefs), for
appellants.
Clarence E. Phillips (Traci M. Coleman, on
brief), for appellee.
The County of Buchanan School Board (employer) contends the
Workers' Compensation Commission (commission) applied the
incorrect standard to determine compensability in awarding
benefits to Diana Horton (claimant). Employer further contends
the commission erred in finding claimant's injury arose out of
her employment. We agree and reverse the commission's award.
I. BACKGROUND
On February 12, 1998, claimant was employed as an
elementary school teacher by employer. On that day, claimant,
at the request of employer, attended a school board meeting to
discuss matters related to claimant's employment as a teacher.
As claimant was leaving the office where the meeting was held,
she exited by a door and then stepped onto a small platform
before attempting to descend a set of steps. As claimant
attempted to descend the first step, she fell. Donald Jenkins
witnessed claimant's fall. Employer's personnel immediately
came to the scene of the fall, and rescue personnel were
summoned. Claimant was taken to the emergency room at Buchanan
General Hospital. She was treated and released.
After being released from the emergency room, claimant
reported the accident to employer. Claimant informed employer
that she had fallen at its office when she attempted to descend
a set of steps.
Neither the emergency room doctor nor employer specifically
asked claimant what caused her to fall or why she had fallen
down the steps. On March 16, 1998, employer's insurance carrier
took a statement from claimant by telephone. This was the first
occasion that claimant was questioned regarding the cause of her
fall. During this interview, claimant stated that she had
fallen down a set of steps but was not sure what caused her
fall. Claimant, when asked if she tripped, told the carrier she
was not sure.
Several weeks after the fall, claimant revisited the
accident site and inspected the steps where she fell. Claimant
stated that her inspection of the first step revealed that it
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was defective. It had a metal riser 1 at the edge of the step
that protruded above the concrete step. As a result of
revisiting the accident site at the school board office,
claimant recalled that her shoe caught on the step riser and
caused her to fall.
Eyewitness Donald Jenkins, a co-worker of claimant, stated
he actually observed claimant's fall. During his testimony, Mr.
Jenkins indicated he saw claimant's shoe catch on the metal
riser that protruded above the concrete step.
Mr. Jenkins also testified that he had previously informed
the County Superintendent of Schools about the defective steps.
Claimant's principal informed her that he had almost fallen on
the same steps.
At the hearing, claimant submitted a series of photographs
that showed the steps where she fell. The deputy commissioner
ruled that claimant's injury did not arise out of her employment 2
because "no risk, hazard or defect associated with the
employment caused her to fall."
The full commission characterized the photographs submitted
by claimant in the following manner:
Examination of these photographs fails
to reflect any defect in the top step on
1
Although the commission and the parties refer to the piece
of metal that protruded above the step as a "riser," it is
actually a metal safety strip.
2
It is not contested that the injury occurred within the
course of claimant's employment.
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which the claimant alleged she fell. The
photographs submitted by the claimant show
that the riser or safety strip on the front
edge of the step is higher than the back
portion; however, photographs of an edge
view of the steps, submitted by the
employer, show the riser and the step being
flush. In the photograph, the red floor mat
appears to be higher than the riser. There
appears to be a thin groove in the riser.
Thus, while the commission found no "defect in the top step on
which the claimant alleged she fell," it reversed the deputy
commissioner's decision on the basis that claimant's injury
arose out of her employment because a condition of the
employment caused the injury.
II. ANALYSIS
Employer first contends the commission failed to apply the
correct standard in determining whether the injury arose out of
claimant's employment. Employer further contends the commission
erred in finding that a condition of claimant's employment
caused her injury.
"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
Center/Commonwealth of Virginia v. Shell, 20 Va. App. 199, 202,
455 S.E.2d 761, 763 (1995) (citation omitted).
Employer first contends the commission applied an incorrect
standard to determine compensability. In its opinion, the
commission wrote, "[T]he current law is that for injuries
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involving stairs to be compensable there must be a risk, hazard
or defect associated with the employment that caused the
injury."
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 the
employment. Shell, 20 Va. App. at 203, 455 S.E.2d at 763. See
also Memorial Hospital v. Hairston, 2 Va. App. 677, 347 S.E.2d
527 (1986). We, therefore, hold that the commission erred when
it ruled that the defect must be associated with the employment.
Rather, the steps must either be defective or a condition of the
employment must cause the injury.
In this case, the commission factually found no defect in
the top step. Therefore, in order for claimant's injury to be
compensable, it must have resulted from a condition of her
employment.
In Shell, claimant fell while traversing steps on her way
to retrieve a medical file. Shell, 20 Va. App. at 201, 455
S.E.2d at 762. Claimant admitted there was nothing unusual
about the steps and that she fell when she turned to look at a
client who was "'recreating.'" Id. Claimant did not state "the
client was the direct cause of her inadvertence to the stairs."
Id. at 203, 455 S.E.2d at 763. We found no defect in the stairs
and no evidence that claimant was hurried or distracted by her
employment duties. Id. at 203-04, 455 S.E.2d at 763-64. We
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concluded a condition of the employment did not cause claimant
to fall on the stairs and, therefore, the injury did not arise
out of her employment.
Conversely, we found a compensable injury in Marion
Correctional Treatment Center v. Henderson, 20 Va. App. 477, 458
S.E.2d 301 (1995). In Henderson, claimant, a correctional
officer, fell down a set of stairs while he watched the tower
guard for acknowledgment. Id. at 479, 458 S.E.2d at 302. We
wrote:
Observation of the guard towers was one
of the security functions of his employment.
The way in which he performed this aspect of
his job increased the risk of falling on
this occasion and directly contributed to
cause his fall and injury. He would not
have been equally exposed to the risk apart
from his duty to observe the guard towers
and provide security at the facility.
Id. at 480-81, 458 S.E.2d at 303.
In this case, although the commission concluded that a
condition of the employment caused claimant's injury, nothing in
the record supports that conclusion. The commission wrote that
because claimant's heel "got caught in the riser," the injury
was caused by a condition of the employment. We reject the
commission's analysis that such was a condition of the
employment. Because the commission found no defect in the steps
and because nothing in the record supports the commission's
holding that the injury occurred as the result of a condition of
the employment, we hold that the injury did not arise out of the
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employment; accordingly, we reverse the commission's award. We
remand to the commission for entry of a judgment consistent with
this opinion.
Reversed and remanded.
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