COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Richmond, Virginia
GEITH, INC. AND
COMMERCIAL UNION INSURANCE COMPANY
MEMORANDUM OPINION* BY
v. Record No. 1822-01-2 JUDGE ROBERT J. HUMPHREYS
MARCH 19, 2002
DALE E. WILBORNE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Arthur T. Aylward (Kevin T. Streit; Midkiff,
Muncie & Ross, on brief), for appellants.
No brief or argument for appellee.
Geith, Inc. appeals a decision of the Workers' Compensation
Commission awarding Dale E. Wilborne temporary total disability
benefits. Geith argues that the commission erred in finding
that Wilborne suffered a compensable injury. The issue is
whether Wilborne sustained an injury arising out of and in the
course of his employment. For the reasons that follow, we
reverse the decision of the commission.
On April 1, 1998, Wilborne worked for Geith, Inc. as a
fitter/welder. His duties in this capacity included fabricating
and welding steel parts. On that particular date, he was
working on a "bucket," which is the front shovel on a bulldozer.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The bucket was approximately eight feet high and six feet wide.
In order to work on the bucket, Geith used a portable rolling
staircase. The staircase consisted of three steps and a top
platform. The staircase rested on wheels which collapsed and
folded inward under the weight of the user, making the steps
stable.
Wilborne testified that on the date of the injury, the
wheels on one side were not collapsing properly, making the
staircase unstable. Nevertheless, he testified that he walked
up and down the staircase four to five times without incident.
Later, as he attempted to step off the bucket onto the platform,
he testified that "the step wasn't there. I don't know if – I
don't know exactly if it moved or what exactly happened, but it
wasn't there when I put my foot down." As he fell, he tried to
grab onto something, but the staircase had no handrail, so there
was nothing for him to grab onto. He fell from the staircase
almost to the floor, injuring his right knee.
Wilborne testified that he did not slip or trip coming down
the stairs. He further stated that after the fall, he told his
supervisor that he was not sure what had caused his fall. He
stated he told his supervisor he was not sure whether he had
tripped or if the steps moved. However, at the hearing he
testified, "to this point right now, I believe the staircase
moved," causing the fall. Nevertheless, he conceded that he
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told the insurance adjustor that he may have miscalculated the
step.
Wilborne further testified that the stairs on the staircase
seemed like they were farther apart than normal stairs, but he
"[couldn't] remember exactly." Wilborne also stated that there
was "no way" to get his entire foot on a stair. Finally, he
claimed that the lighting conditions were poor and obscured in
that area, due to a crane blocking the light.
Wilborne's supervisor testified that when Wilborne reported
the incident to him, he stated his knee went out while he was
descending the stairs. Wilborne also told medical personnel
that he stepped "down from a ladder and [his] knee gave out" and
that he was "walking down a set of portable stairs at work [,
when his] [l]eg got twisted on stairs."
Wilborne's supervisor stated that the stairs on that
particular staircase were evenly spaced, ten inches apart. He
also testified that the width of the individual stairs was
twenty inches and that there were no side rails on the
staircase. 1 Wilborne's supervisor and co-worker had used the
staircase several times prior to Wilborne's injury, and neither
experienced any problems. Wilborne's supervisor also testified
1
He further testified that a handrail is not necessary on
the staircase to meet OSHA regulations, because it is under
forty inches in height.
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that he measured the light in the area using a light meter and
found that the light level exceeded the light in his own office.
A co-worker who was working near Wilborne at the time he
was injured, testified that he witnessed the incident. He
stated he "turned around and [Wilborne] was more or less turning
to the side to step back down the ladder and he crouched down
and grabbed his leg and he stepped down the steps and walked
over to – I went to see if I could help him." He further
testified that the lighting conditions in the area at the time
of the injury were adequate. He stated that he could see well
enough to read and to see the stairs on the staircase.
Based on the above, the commission found:
the evidence predominates that [Wilborne]
fell either because the rolling staircase
moved, or because in placing his foot on a
step which was smaller than his foot, with
no handle to hold onto, disembarking from a
bulldozer shovel, with the light partially
obscured, he misstepped and lost his
balance. Under either scenario it was more
likely a risk of the employment which
prompted the fall, not a syncopal spell or
an idiopathic medical condition.
The sole issue on appeal is whether the commission erred in
finding Wilborne's injury arose out of and in the course of
employment.
In order for an injured worker to recover under the Act, he
must prove an injury by accident "arising out of and in the
course of the employment." Code § 65.2-101. "Whether an injury
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arises out of and in the course of employment involves a mixed
question of law and fact, which we review de novo on appeal." 2
"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." 3 Here, the commission found, based on the evidence,
that Wilborne's fall was caused either because the rolling
staircase moved, or because the steps were small, there was no
handrail and the lighting conditions were poor, causing him to
misstep.
However, in the case of an unexplained fall, "a claimant
must prove by a preponderance of the evidence that the fall
'arose out of' the employment by establishing a causal
connection between his or her employment and the fall." 4 In this
case, the commission was persuaded that the condition of the
stairs and/or the environment caused Wilborne's fall, but no
credible evidence supports this finding. The mere fact that the
wheels were not collapsing properly, or that the steps were
small, there was no handrail, and the lighting conditions were
poor, does not establish the basis for Wilborne's fall.
2
Blaustein v. Mitre Corp., 36 Va. App. 344, 348, 550 S.E.2d
336, 338 (2001).
3
County of Buchanan School Bd. v. Horton, 35 Va. App. 26,
29-30, 542 S.E.2d 783, 784-85 (2001).
4
PYA/Monarch & Reliance Ins. Co. v. Harris, 22 Va. App.
215, 224, 468 S.E.2d 688, 692 (1996).
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Further, Wilborne admitted telling his supervisor that he wasn't
sure "exactly what happened." He testified that he "went to
step and there was nothing – the step wasn't there. I don't
know if – I don't know exactly if it moved or what exactly
happened but it wasn't there when I put my foot down." He later
testified, "to this point right now, I believe the staircase
moved on me."
It is clear from Wilborne's own testimony that at the time
of the injury, he did not know the cause of the fall. At one
point, he indicated his knee "gave out," resulting in the fall.
At another point he did not know "exactly what happened." His
statement at the hearing that "[t]o this point right now, I
believe the staircase moved on me" clearly indicates his present
interpretation of the events of the fall. However, this is
speculation at best, which cannot serve as factual basis for the
commission's finding. 5 Thus, Wilborne failed to prove the
requisite causal connection between his employment and his fall. 6
We are mindful that factual findings of the commission,
based on credible evidence, are conclusive and binding upon this
Court. 7 Further if "reasonable inferences" may be drawn from
5
See Sullivan v. Suffolk Peanut Co., 171 Va. 439, 443, 199
S.E. 504, 506 (1938) ("[a]n award based upon surmise or
conjecture will be set aside").
6
See PYA/Monarch, 22 Va. App. at 224-25, 468 S.E.2d at 692.
7
See Fairfax Hospital v. DeLaFleur, 221 Va. 406, 410, 270
S.E.2d 720, 722 (1980); Code § 65.2-706.
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credible evidence, "they will not be disturbed by this Court on
appeal." 8 However, before circumstantial evidence "may serve as
the basis from which further inference of fact may be drawn," it
first "must establish a fact," reliance upon which is not to be
"extremely attenuated." 9 While the record here may establish
Wilborne's injury in the course of employment, as stated above,
it does not establish that Wilborne's injury arose out of the
employment. The evidence here simply does not support the
factual inferences drawn by the commission. Accordingly, the
decision of the commission is reversed.
Reversed and dismissed.
8
Hawks v. Henrico County School Bd., 7 Va. App. 398, 404,
374 S.E.2d 695, 698 (1988).
9
Johnson v. Commonwealth, 15 Va. App. 73, 77, 422 S.E.2d
593, 595 (1992).
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Elder, J., dissenting:
I believe the record contains credible evidence to support
the commission's conclusion that the injury sustained by Dale E.
Wilborne (claimant) on April 1, 1998, arose out of his
employment. Thus, I would affirm the commission's award of
benefits, and I respectfully dissent from the majority's
reversal of that award.
In order for an injury to be compensable under the Workers'
Compensation Act (the Act), it must "arise out of" and occur "in
the course of" employment. Code § 65.2-101; see County of
Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74
(1989). "Arising out of" refers to the origin or cause of the
injury. Richmond Mem. Hosp. v. Crane, 222 Va. 283, 285, 278
S.E.2d 877, 878 (1981). "An injury arises out of the employment
if there is apparent to the rational mind a causal connection
between the conditions under which the work is required to be
performed and the resulting injury." Marion Corr. Treatment
Ctr. v. Henderson, 20 Va. App. 477, 480, 458 S.E.2d 301, 303
(1995). An injury does not arise out of one's employment if it
is caused by "a hazard to which the employee would have been
equally exposed apart from the employment." United Parcel Serv.
of Am. v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 893
(1985). Thus, our case law holds that an employee's fall on
stairs is compensable only if either a defect exists in the
stairs or the employee fell as a result of a condition of the
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employment. See, e.g., County of Buchanan Sch. Bd. v. Horton,
35 Va. App. 26, 29, 542 S.E.2d 783, 784-85 (2001).
Although the commission's decision that an accident arises
out of employment involves a mixed question of law and fact,
Mullins v. Westmoreland Coal Co., 10 Va. App. 304, 307, 391
S.E.2d 609, 611 (1990), the determination of causation is a
question of fact, Ingersoll-Rand Co. v. Musick, 7 Va. App. 684,
688, 376 S.E.2d 814, 817 (1989). "If there is evidence or [if]
reasonable inference[s] . . . can be drawn from the evidence to
support the Commission's findings [of fact], they will not be
disturbed by this Court on appeal, even though there is evidence
in the record to support contrary findings of fact." Caskey v.
Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510-11
(1983). Thus, the "inquiry must be whether credible evidence
supports [the commission's] finding that a defect in the stairs
or a condition of [claimant's] employment caused [him] to fall
down the steps . . . ." Southside Va. Training Ctr. v. Shell,
20 Va. App. 199, 203, 455 S.E.2d 761, 763 (1995).
The commission found that
claimant fell either because the rolling
staircase moved, or because placing his foot
on a step which was smaller than his foot,
with no handle to hold onto, disembarking
from a bulldozer shovel, with the light
partially obscured, he misstepped and lost
his balance. There was nothing for
[claimant] to grab onto. Under either
scenario it was more likely a risk of the
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employment which prompted the fall, not a
syncopal spell or an idiopathic medical
condition.
Credible evidence in the record, in the form of the claimant's
testimony, supports the commission's conclusion. That the
record may also contain evidence which would support a contrary
finding of fact is irrelevant.
The evidence established that when the accident occurred,
claimant was in his employer's shop working on an "earth moving
bucket" which was seven to eight feet tall and six to eight feet
wide. Claimant and a co-worker, Steven Crabtree, were using an
overhead crane to "plac[e] a jig on top of the bucket." "[T]he
only way [for claimant] to reach the top of the bucket" in order
to perform his work was to stand on a portable staircase which
had collapsible, spring-loaded wheels. Claimant testified that
"when you step on [the staircase], the wheels are supposed to
collapse and . . . set firm to the ground." On the day of the
accident, however, the wheels on the left side of the staircase
were not collapsing as they were supposed to, and the staircase
remained uneven and moved while claimant was using it. The
staircase did not have handrails. Due to the absence of
handrails, claimant positioned the staircase "alongside the
bucket" rather than "pointing away from the bucket" so that he
would "[have] the side of the bucket to grab onto in case
something would happen."
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Claimant testified that lighting conditions on the
staircase were poor because "the crane [they were using to lift
the jig] would block the only light that [he] had." Crabtree
agreed that it was possible to position the crane between the
ceiling lights and work area and that the crane, when so
positioned, would block the light "to some degree."
Photographs of the staircase showed that the steps had no
backs; the staircase consisted of a metal frame with four
horizontal steps attached to the frame on both sides, but the
steps were not connected to one another with vertical dividers.
Claimant's supervisor, plant manager Andrew Fitzsimmons,
testified that the staircase was under forty inches in height,
that the steps were "evenly spaced at ten inches," that the part
of the step "that you stand on" is "twenty inches wide," and
that he believed the platform at the top of the steps was
"twenty by sixteen" inches. When asked how the design and
spacing of the steps on the floating staircase compared to the
stairs in the building where the hearing was held, Fitzsimmons
was unable to make a comparison. Claimant, however, said the
collapsible stairs were different from "normal stairs in a
building or a house." He testified that "there was no way to
get your whole foot [on] the stair" and that "the steps seem[ed]
like they were a little further apart than what a normal stair
is," "taller in-between steps."
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Claimant testified at the September 24, 1998 hearing that
when the accident occurred, he was on the top of the staircase
and had just "unhook[ed] the crane or tak[en] tools off the top
of . . . the bucket." "[L]ighting conditions . . . where [he
was] working" were "[v]ery poor," too poor to "read a
blueprint." "[He] came off . . . the top of [the] bucket" and
"was on top of the staircase." When "[claimant] went to step
[down]," he put his foot down and "the step wasn't there."
"[He] tried to grab onto something," but the staircase had no
handrails, and "there was nothing to grab." He then "got [his]
leg tied up in the stairs . . . and fell . . . almost to the
floor."
Claimant admitted he did not know precisely what had
happened to cause his fall and that he "wasn't sure if the
stairs moved or if [he] tripped" or "misstepped." However, he
did not waiver from his testimony that "[the step] wasn't there
when [he] put [his] foot down." The record established that
claimant relayed this same information to the insurance
company's representative on April 21, 1998, just three weeks
after the accident.
Whether claimant described the incident to his co-worker or
supervisor in this fashion immediately after the accident
occurred is not dispositive because the commission found
credible claimant's hearing testimony about how the injury
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occurred. Further, claimant testified the pain was so great
immediately after the accident that he almost passed out and
that he sat still for fifteen minutes trying to "regain[] [his]
composure." Thus, the commission could reasonably have found
that claimant's failure, if any, to tell Crabtree and
Fitzsimmons precisely how the accident occurred resulted from
the severity of the pain he experienced after the fall and not
from a lack of awareness as to what had happened.
How claimant described the incident to treating medical
personnel also is not dispositive. Claimant testified before
the commission that his treating physician did not "ask [him]
for a precise description of exactly what happened." The
physician asked him what happened, and claimant responded that
"[he] fell off a staircase."
Thus, the record contains credible evidence to support the
commission's finding that the fall occurred "either because the
rolling staircase moved, or because [when claimant] plac[ed] his
foot on a step which was smaller than his foot, with no handle
to hold onto, disembarking from a bulldozer shovel, with the
light partially obscured, he misstepped and lost his balance."
As the commission further found, "[u]nder either scenario it was
more likely a risk of the employment which prompted the fall,
not a syncopal spell or an idiopathic medical condition."
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Because credible evidence supports the commission's finding
that claimant's injury arose out of his employment, I would
affirm the commission's award, and I respectfully dissent.
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