Burnadine Y. Chandler v. ARA Food Services

A Rehearing En Banc was granted in this case on May 16, 1995.

COURT OF APPEALS OF VIRGINIA

Present: Judge Benton, Senior Judges Cole and Hodges
Argued at Richmond, Virginia

BURNADINE Y. CHANDLER
MEMORANDUM OPINION * BY
v. Record No. 1572-94-2 JUDGE JAMES W. BENTON, JR.
APRIL 11, 1995
ARA FOOD SERVICES, INC., and
RELIANCE INSURANCE COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
B. Mayes Marks, Jr. (Marks & Lee, P.C.,
on brief), for appellant.

James G. Muncie, Jr. (Midkiff & Hiner, P.C.,
on brief), for appellees.

Burnadine Y. Chandler contends on appeal that the Workers'

Compensation Commission erred in finding that her slip and fall

injury did not arise out of her employment. We reverse the

decision.

Chandler arrived for work at 6:15 a.m. on a rainy January

day. The parking area provided by her employer was dark and wet.

When she exited her motor vehicle and took a couple of steps,

her "foot just slipped out from up under" her. She fell and

sustained injuries for which she received medical treatment.

When asked what she slipped upon, Chandler testified that

the pavement was "wet" and that she saw "nothing but water." She

also said that she may have slipped on oil. Her husband did not

see her fall, but he described the surface of the parking lot as

*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
being "slick, it was slippery, had a lot of water on it, mud." A

security officer who filled out an accident report examined the

spot and saw nothing on the pavement other than wetness.

In finding that her injury arose out of her employment, the

deputy commissioner relied upon the initial panel decision in

Jones v. Colonial Williamsburg Found., 8 Va. App. 432, 382 S.E.2d

300 (1989), aff'd en banc, 10 Va. App. 521, 392 S.E.2d 848

(1990). The deputy commissioner found that Chandler's fall was

"not unexplained." In addition, the deputy commissioner found

that Chandler's injury was caused by the wet condition of the

pavement on her employer's premises and awarded her temporary

total disability benefits for a five month period.
The full commission, with a dissent, ruled that the injury

did not arise out of Chandler's employment. In reversing the

deputy commissioner's decision, the commission reasoned that

Chandler "could not identify anything on the sidewalk itself as

causing the fall other than ordinary rainwater," and found,

therefore, that she was not exposed to a greater risk of injury

than the general public.

The sole issue on appeal is whether Chandler's injury arose

out of her employment. The employer concedes that Chandler's

injury arose in the course of her employment but contends that

her injury did not arise out of her employment.

The issue in this case is controlled by this Court's

decision in Jones. In the initial panel decision in Jones, this

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Court held that an employee who injured her leg after slipping on

a wet step suffered an injury by accident that arose out of and

in the course of her employment. 8 Va. App. at 439, 382 S.E.2d

at 304. Jones was throwing away personal trash in the employer's

trash dumpster prior to reporting to work. "After throwing the

trash from the top step into the dumpster, she turned to go

toward the tavern, slipped on the wet step of the trash house,

and injured her leg." Id. at 435, 382 S.E.2d at 302. In

analyzing whether Jones' injury arose out of her employment, the

opinion observed that "[a]n 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 under which the work is required to be performed and

the resulting injury.'" Id. (citation omitted).

Upon rehearing en banc, we affirmed those rulings and

stated:
In the present case, Mrs. Jones' injury was
sustained when she slipped and fell because
of a wet step leading to the trash
receptacle. . . . Mrs. Jones' injury arose
because of the wet and slippery condition on
the employer's premises. Accidents such as
the one sustained by Jones during the course
of her employment always have been considered
compensable.

10 Va. App. at 523, 392 S.E.2d at 850. Nothing in Jones
discussed the origin of the water or qualified the right to

recover because of the origin of the water. See also Wetzel's
Painting & Wallpapering v. Price, 19 Va. App. 158, 449 S.E.2d 500

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(1994); Prince v. Pan American World Airways, 6 Va. App. 268, 368

S.E.2d 96 (1988).

In reversing the deputy commissioner's opinion, the

commission did not find that Chandler's fall was not caused by

the wet condition of the pavement. Rather, the commission simply

disregarded this fact and held that the evidence did not prove

any defect in the pavement. As in Jones, Chandler's slip and

fall was caused by the wet condition of her employer's premises.

Accordingly, the evidence proved that her injury arose out of

her employment.
For this reason, we reverse the commission's findings.

Reversed and remanded.

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COLE, J., dissenting.

I respectfully disagree with the decision of the majority

finding that the claimant sustained an injury arising out of her

employment. The majority finds that Jones v. Colonial

Williamsburg Found., 10 Va. App. 521, 392 S.E.2d 848 (1990) (en

banc), controls the decision in this case. Finding that Jones is

not dispositive of the issues, I would affirm the decision of the

commission.
After fully reviewing the testimony of the witnesses, the

commission stated that "the Deputy Commissioner found that the

claimant slipped on wet pavement within the Philip Morris

compound while attempting to enter the building for work with the

pathway such as that it would be considered a part of the

employer's premises. . . . We agree with this finding of fact."

The commission disagreed with the conclusion drawn by the deputy

commissioner that because the pavement was wet due to the rain

the accident arose out of the claimant's employment. The

commission found that the claimant did not prove a causal

connection between the employment and the injury.

The commission quoted at length from the Supreme Court case

of Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686
(1938), to the effect that the claimant must prove that the

accident arose out of the employment and to do this she must

prove "a causal connection between the conditions under which the

work is required to be performed and the resulting injury."

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 The commission then stated that Virginia has long ago

rejected the "positional risk" doctrine and stated:
The common denominator in these situations is
that the employer should [be] held
responsible where it in some manner created a
risk of injury or overlooked the risk to the
detriment of the employees. Such is not the
case here when the risk encountered was
simply walking in rain without any evidence
that the pavement was defective and when the
claimant could not identify anything on the
sidewalk itself as causing the fall other
than ordinary rainwater, which must be
considered as a causative danger common to
the neighborhood.

The commission stated that it had long ago adopted the

following position:
[I]njuries received from exposure to weather
conditions, such as heat, cold, ice, snow or
lightning, are generally classed as risks to
which the general public is exposed, and not
within the purview of the Workmen's
Compensation Acts, although the injured
person at the time he received his injury,
may have been performing duties incident to,
and, in the course of his employment.

Evans v. Southgate Forwarding and Storage, 90 O.I.C. 76, 80

(1927).

After fully reviewing the law applicable to the case, the

commission concluded that the claimant was exposed to no greater

risk of injury than the general public which was out in the rain.

Accordingly, it found that the claimant's accident did not arise

out of her employment. This finding is entirely consistent with

the principles set forth in Jones v. Colonial Williamsburg and

numerous other Virginia decisions.

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 Because the majority bases its decision on Jones, I shall

discuss that holding and then compare it with this case to show

that they are distinguishable upon their facts. In Jones, Fay

Jones was employed by the Colonial Williamsburg Foundation as a

pantry worker at the King's Arms Tavern. Mrs. Jones and Gloria

Hundley, a co-worker with whom Jones carpooled on a regular

basis, parked in the employee's parking lot at the tavern. Jones

offered to take a small amount of trash out of the car and put it

in the trash receptacle behind the tavern. Directly behind the

tavern, approximately fifty to sixty feet from the back entrance

and several steps off the pathway, but on the property of

Colonial Williamsburg, there was located a small colonial

outbuilding with three to four steps which led up and into the

building. Several dumpsters for depositing trash were located

inside the building. On the morning that Jones was injured, the

trash house had been washed out and the steps were wet from the
1
washing. Jones walked up the steps and deposited the trash in a
1
The majority states that "[n]othing in Jones discussed the
origin of the water or qualified the right to recover because of
the origin of the water." There was no rain water in Jones. The
only water present in that case originated from the washing of
the trash house. Fay M. Jones testified that the trash house was
a "small old colonial house" that had three or four steps going
up into the trash house. She was going down the steps when she
fell. She stated: "Somebody had washed the trash house out. The
steps was wet, and I just slipped and fell." Transcript of
testimony before Industrial Commission filed in Jones. Although
the majority opinion in Jones does not specify the origin of the
"wetness" because there was no dispute concerning it, the
dissenting opinion clearly states that Jones "climbed three or
four steps into the trash house which recently had been 'washed
out.' The steps to the trash house were wet." Jones, 10 Va.
App. at 525, 392 S.E.2d at 851 (Baker, J., dissenting).

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dumpster. She exited the house and slipped on the wet steps as

she was descending them.

In Jones, this Court made a comparison between Jones

slipping on the wet steps of the outbuilding and Johnson falling

on the steps in County of Chesterfield v. Johnson, 237 Va. 180,

376 S.E.2d 73 (1989). We said:
The Supreme Court said the injury must be caused
by "the condition of the workplace." . . . In the
present case, Mrs. Jones' injury was sustained
when she slipped and fell because of a wet step
leading to the trash receptacle. Johnson's injury
was not attributable to a risk or hazard
associated with the work environment. Mrs. Jones'
injury arose because of the wet and slippery
condition on the employer's premises. Accidents
such as the one sustained by Jones during the
course of her employment always have been
considered compensable.

Jones, 10 Va. App. at 523, 392 S.E.2d at 850 (quoting Johnson,

237 Va. at 185, 376 S.E.2d at 716).

We said in Jones that accidents such as the one sustained by

Jones during the course of her employment always have been

considered compensable. This is so because accidents sustained

during the course of the employment resulting from some natural

cause does not place liability on the employer. The general rule

is stated as follows:
If an employee is injured by some
natural force, such as a hurricane, tornado,
or the like, or is struck by lightning during
a storm, or drowned as a result of a flood,
or is injured by falling debris in {?the}
earthquake, the event does not in and of
itself fasten liability on the employer. The

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 theory is that death or any incapacity to
work resulting from some natural force,
operating directly upon the victim without
the intervention of any other agency or
instrumentality, arises not out of the
employment but is due solely to an act of
God. However, when the nature of the
employment, or some condition, or environment
therein, brings into existence a special or
peculiar risk to the disastrous forces of
nature, the injury or death of an employee
may be compensated as a risk of the
employment.

E. Blair, Workmen's Compensation § 9.02 (1968); see also 1

Larson, The Law of Workmen's Compensation, § 8.00 (1990).
Our Supreme Court has considered on numerous occasions the

question whether an injury arose out of employment. See United

Parcel Serv. v. Fetterman, 230 Va. 257, 336 S.E.2d 892 (1985);

Central State Hosp. v. Wiggers, 230 Va. 157, 335 S.E.2d 257

(1985); Richmond Memorial Hosp. v. Crane, 222 Va. 283, 278 S.E.2d

877 (1981); Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 159

S.E.2d 633 (1968); see also, Southside Virginia Training Center

v. Shell, 20 Va. App. ___, ___ S.E.2d ___ (1995).

In County of Chesterfield v. Johnson, 237 Va. 180, 376
S.E.2d 73 (1989), Johnson had descended steps to the basement

where he worked to turn off certain water pumps. As he started

to leave the basement, he remembered that he needed to check a

certain meter. He turned around on the first step to go back

down. His knee gave way, and he fell to the floor. The Supreme

Court rejected Johnson's claim, stating that it did not differ

from Fetterman, Wiggers and Crane. Specifically, Johnson's claim

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suffered from the same failing as the other rejected claims: an

inadequate showing that the work environment contributed to the

injury. Johnson, 237 Va. at 184, 376 S.E.2d at 75.

All of these cases stand for the principle that
[a]n accident arises out of the employment when there
is a causal connection between the claimant's injury
and the condition under which the employer requires the
work to be performed. Under this test, an injury
arises "out of" the employment when it has followed as
a natural incident of the work and has been a result of
the exposure occasioned by the nature of the
employment. Excluded is an injury that comes from a
hazard to which the employee would have been equally
exposed apart from the employment. The causative
danger must be peculiar to the work, incidental to the
character of the business, and not independent of the
master-servant relationship. The event must appear to
have had its origin in a risk connected with the
employment, and to have flowed from that source as a
rational consequence.

Fetterman, 230 Va. at 258-59, 336 S.E.2d at 893 (citations

omitted).

I am unable to ascertain from the majority opinion, or from

a review of the record, any condition of the workplace that

contributed to the claimant's fall, except the fact that she was

on the premises. Her presence on the premises, however, is not

sufficient to satisfy the actual risk test that requires a

claimant to establish a causal connection between the work

environment and the injury. Virginia is not a "positional risk"

jurisdiction. Virginia is an 'actual risk' jurisdiction in which

an accident, to be compensable, must also be causally related

with a risk associated with the workplace. County of

Chesterfield v. Johnson, 237 Va. at 185, 376 S.E.2d at 75-76.

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"The fact that the injury occurred at work adds nothing and

answers nothing, when the inquiry is, did the injury arise out of

the employment. It simply helps prove the 'in the course of'

prong of the compensability test." Id. at 185, 376 S.E.2d at 76.

"Moreover, the claimant has the burden of proving by a

preponderance of the evidence that the injury was an actual risk

of the employment." Hill City Trucking, Inc. v. Christian, 238

Va. 735, 739, 385 S.E.2d 377, 379. Here, there is no evidence in

the record to show a hazard peculiar to the workplace or

incidental to claimant's employment.
Because I find the majority opinion inconsistent with

Virginia law, I dissent and would affirm the decision of the

commission.

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