COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia
CRIZMAR, INC. t/a
BELGIAN WAFFLE & STEAK HOUSE
MEMORANDUM OPINION * BY
v. Record No. 3083-96-1 JUDGE WILLIAM H. HODGES
JULY 8, 1997
HELEN L. SANBORN AND
UNINSURED EMPLOYER'S FUND
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Paul H. Wilson (Wilson & Wilson, on brief),
for appellant.
Cheryl A. Wilkerson, Assistant Attorney
General (James S. Gilmore, III, Attorney
General; John J. Beall, Jr., Senior Assistant
Attorney General, on brief), for appellee
Uninsured Employer's Fund.
No brief or argument for appellee Helen L.
Sanborn.
Crizmar, Inc. t/a Belgian Waffle & Steak House (employer)
appeals a decision of the Workers' Compensation Commission
(commission) awarding benefits to Helen L. Sanborn (claimant).
Employer contends that the commission erred in (1) finding that
claimant sustained an injury by accident arising out of her
employment on June 11, 1995; and (2) not granting employer's
motion to dismiss claimant's appeal to the full commission based
upon her failure to file a written statement as ordered by the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
commission. 1 Finding no error, we affirm the commission's
decision.
I.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
So viewed, the evidence showed that on June 11, 1995, while
working in employer's restaurant as a cook, claimant fell and
fractured her left ankle. Employer's kitchen area, where
claimant fell, measures approximately three feet by twelve feet,
with a work area along both sides. The kitchen floor is composed
of cement with a tile covering.
Claimant testified that on the morning of June 11, 1995, her
co-worker, Buddy Blair, finished mopping and sweeping the kitchen
area at approximately 7:00 a.m. At approximately 7:30 a.m.,
claimant walked into the freezer and retrieved some items. She
loaded the items onto a pushcart and then exited the freezer. As
claimant carried a pan of meat from the pushcart across the
kitchen area, she slipped and fell. Claimant described the
incident as follows:
I picked it up and started to walk, and I hit
something on the floor. I don't know what.
It could have been water. It could have been
butter because it was right where the sink
was and the toaster. My feet went from under
me, and I throwed [sic] the pan, and I went
down because I couldn't grab on nothing
because my hands was full.
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The Uninsured Employer's Fund filed a brief in support of
the arguments made by employer in its brief.
Claimant stated that her left foot went under her when she fell,
and it began to hurt immediately after the fall. Claimant sought
medical treatment at Mary Immaculate Hospital on June 11, 1995,
where she reported a history of slipping and falling at work.
X-rays revealed a bimaleolar fracture of the left ankle.
Claimant came under the care of Dr. Boyd W. Haynes, III. On
June 13, 1995, claimant reported a history of slipping at work to
Dr. Haynes. In a May 16, 1996 letter to claimant's counsel, Dr.
Haynes opined that claimant "did have a pre-existing problem with
arthritis of [the left] knee but [I] feel with the history that
was given, that this is not what caused her to fall, but it was
due to the slickness of the floor at the time."
Claimant testified that she had seen other employees fall in
the kitchen and that water, butter, or grease frequently were
spilled on the floor. She admitted that she was not able to
determine what she slipped on, that she did not notice any
substance on the floor before she fell and that she did not feel
any particular substance as she fell. At the time of her fall,
claimant was wearing work shoes with nonskid soles.
Willie Lancaster, claimant's supervisor, testified that he
was present at the restaurant between 7:00 and 8:00 a.m. on the
date of claimant's fall. He was cooking with his back to
claimant when he heard a commotion. He turned around and saw
claimant sitting on the floor, with one leg tucked under her body
and one leg forward. After the incident, Lancaster examined the
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area where claimant fell and did not see any foreign debris,
water, or slippery substance. However, Lancaster acknowledged
that the floor was frequently splattered with cooking substances
or water. Lancaster testified that in a telephone conversation a
few days after the accident, the claimant told him that she was
not sure how she fell, that she may have slipped or her leg may
have given out. Claimant denied telling Lancaster that her leg
may have given out.
Based upon this record, the full commission found that
claimant sustained a compensable injury by accident when she
slipped and fell on June 11, 1995. The commission relied upon
claimant's testimony that she slipped, along with the medical
histories indicating that she slipped. The commission noted that
"[w]hen the evidence preponderates that an employee slipped at
work, it is not critical that the slippery substance be
positively identified, as long as the cause of the fall was a
risk of the employment."
"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).
An injury arises out of the employment "when
there is apparent to the rational mind upon
consideration of all the circumstances, a
causal connection between the conditions
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under which the work is required to be
performed and the resulting injury . . . .
But it excludes an injury which cannot fairly
be traced to the employment as a contributing
proximate cause and which comes from a hazard
to which the workman would have been equally
exposed apart from the employment. The
causative danger must be peculiar to the work
and not common to the neighborhood. It must
be incidental to the character of the
business and not independent of the relation
of master and servant."
Central State Hosp. v. Wiggers, 230 Va. 157, 159, 335 S.E.2d 257,
259 (1985) (quoting Richmond Memorial Hosp. v. Crane, 222 Va.
283, 285, 278 S.E.2d 877, 878-79 (1981)) (other citation
omitted).
Claimant's testimony, which was corroborated by the medical
histories, constitutes credible evidence to support the
commission's finding that claimant fell on June 11, 1995 because
she slipped due to a work-related risk, not because her knee gave
way. In its role as fact finder, the commission was entitled to
give more weight to claimant's testimony than to Lancaster's
testimony. Claimant's evidence established a causal connection
between the conditions under which employer required her to
perform her work and her resulting injury. Although claimant
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could not identify the specific substance or foreign debris that
caused her to slip, the commission could have reasonably inferred
from the evidence that she slipped due to a condition or danger
peculiar to her workplace. "Where reasonable inferences 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 Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d
695, 698 (1988).
II.
We find no merit in employer's contention that the
commission erred in failing to dismiss claimant's appeal to the
full commission because she did not file a written statement.
Claimant complied with the commission's notice by sending a
letter to the commission, which it received on October 4, 1996,
stating that she did not intend to file a written statement
because she could not afford to hire an attorney to do so.
For these reasons, we affirm the commission's decision.
Affirmed.
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