COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff
Argued by teleconference
RUSSELL D. CLAY
MEMORANDUM OPINION * BY
v. Record No. 2441-98-4 JUDGE CHARLES H. DUFF
OCTOBER 26, 1999
WINCHESTER (CITY OF) SHERIFF'S OFFICE
AND
VIRGINIA MUNICIPAL GROUP SELF-INSURANCE ASSOCIATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Nikolas E. Parthemos (Parthemos & Bryant,
P.C., on brief), for appellant.
Elisabeth M. Ayyildiz (Donald R. Morin;
Morin & Barkley, on brief), for appellees.
Russell D. Clay ("claimant") appeals a decision of the
Workers' Compensation Commission ("commission") denying his claim
for benefits. Claimant contends that the commission erred in
finding that he failed to prove that he sustained an injury by
accident arising out of his employment on October 28, 1997.
Finding no error, we affirm.
On October 28, 1997, claimant was employed by the City of
Winchester as a deputy sheriff. On that date, his job duties
required that he post papers on the front door of the central
entrance of an apartment building. To complete this task, he
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
ascended a flight of stairs, and taped the papers to the door.
The door was located approximately twenty-seven inches from the
top of the staircase. As claimant turned to leave, he fell
before his foot made contact with the first step.
In his recorded statement given less than 48 hours after
his accident, claimant did not recall slipping or tripping and
did not know why he fell. After returning to the accident site
later and attempting to reconstruct the incident, claimant
testified that when he turned on the top landing after posting
the papers on the door, his foot was partially off the top step.
He then concluded that the leaf blowing activities on the
sidewalk below distracted his attention because he did not wish
to have debris blown in his eyes. He claimed that he reached
for a handrail as he started to fall, but there was no railing
at the top of the steps. He was holding a plastic tape
dispenser in his left hand and reached with his right hand.
Claimant also stated that because of understaffing, he was
attempting to serve as many documents as possible. He admitted
that he was not in any particular hurry, but stated that he
frequently hurries while working.
In a written statement dated February 25, 1998, John
Knight, the building inspector for the City of Winchester,
reported that on November 3, 1997, he inspected the entrance
stairway where claimant fell. Knight concluded that the
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staircase was in compliance with the "applicable sections of the
1996 Uniform Statewide Building Code."
"To prove the 'arising out of' element, [in a case
involving injuries sustained from falling down stairs at work,]
[claimant] must show that a condition of the workplace either
caused or contributed to [his] fall." Southside Virginia
Training Ctr. v. Shell, 20 Va. App. 199, 202, 455 S.E.2d 761,
763 (1995) (citing County of Chesterfield v. Johnson, 237 Va.
180, 184, 376 S.E.2d 73, 76 (1989)). "Whether an injury arises
out of the employment is a mixed question of law and fact and is
reviewable by the appellate court." Plumb Rite Plumbing Serv.
v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305, 305 (1989).
However, unless we conclude that claimant proved, as a matter of
law, that his employment caused his injury, the commission's
finding is binding and conclusive on appeal. See Tomko v.
Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835
(1970).
Although claimant was in the course of his employment
when his injury occurred, his evidence did not show that any
defect in the stairs or any condition peculiar to his workplace
caused him to fall down the steps and injure himself.
Claimant's evidence did not prove that the lack of handrails at
the top of the stairs was a defect or anomaly constituting a
risk of his employment nor did his evidence prove that the
landing at the top of the stairs was defectively narrow.
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Moreover, claimant's evidence did not prove that the lack of
handrails or the width of the landing caused him to fall.
Contrary to claimant's assertion no evidence proved that
his fall was caused by his rush to serve as many documents as
possible during the day. Claimant admitted that he was in no
particular hurry on the day of his accident and that he had no
quota to meet. Moreover, no evidence proved that the alleged
distraction of city employees blowing leaves on the sidewalk
below constituted a risk of claimant's employment or caused his
fall. In holding that this alleged "distraction did not startle
the claimant, nor prevent him from viewing the staircase before
beginning his descent," the commission found as follows:
[C]laimant testified that he was aware of
the city workers blowing leaves when he
ascended the staircase. After taping papers
to the door, he turned and looked at the
city workers in order to decide whether he
could descend the stairs without a danger of
having debris blown into his eyes. When
asked, "And you decided you could proceed
down the steps?" Clay responded, "That's
correct."
The commission also found that the distraction was not a risk
peculiar to claimant's employment, but rather, was common to the
neighborhood. The commission's factual findings are amply
supported by the record, and will, therefore, not be disturbed
on appeal. 1
1
Claimant relies on the "street cases" in arguing that he
incurred a risk of distraction by city workers and of exposure
to different types of stairways because his employment required
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Because no evidence showed a causal connection between the
conditions of claimant's employment and his fall, we are unable
to find that he proved as a matter of law that his injury arose
out of his employment.
For these reasons, we affirm the commission's decision.
Affirmed.
that he travel the public streets. Claimant did not raise this
argument before the commission. Therefore, we will not address
it for the first time on appeal. See Kendrick v. Nationwide
Homes, Inc., 4 Va. App. 189, 192, 355 S.E.2d 347, 349 (1987);
Rule 5A:18.
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