COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Humphreys, Petty and Decker
Argued at Richmond, Virginia
JOYCE VICK
MEMORANDUM OPINION BY
v. Record No. 1467-14-1 JUDGE MARLA GRAFF DECKER
MARCH 24, 2015
HAMPTON ROADS TRANSIT
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Gregory E. Camden (Montagna, Klein, Camden LLP, on brief), for
appellant.
Robert L. Samuel, Jr. (Williams Mullen, on brief), for appellee.
Joyce Vick (the claimant) appeals a decision of the Virginia Workers’ Compensation
Commission (the commission) denying her claim for medical benefits and compensation for
temporary total disability. The claimant contends that the commission erred in finding that she
suffered no compensable injury by accident, as her injuries did not arise out of conditions of her
employment. For the following reasons, we affirm the decision of the commission.
I. BACKGROUND1
On July 5, 2013, the claimant was employed as a bus operator by Hampton Roads Transit
(the employer). Her duties in this role were to drive the bus on the route assigned to her and pick
up and drop off passengers at designated stops. At 8:00 p.m. on that date, the claimant had been
driving for the prior eight hours when her supervisor asked her to drive an additional three hours
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
On appeals from the commission, this Court “review[s] the evidence in the light most
favorable to the prevailing party.” R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212,
390 S.E.2d 788, 788 (1990).
in order to accommodate an event that evening. While the claimant was leaving the office to get
back on the bus, she was talking to this supervisor and another supervisor. As she left the office,
she turned toward her right to leave. Her shoe “got caught on the bottom of the threshold piece
that was down there, and there was nothing in the hallway to grab . . . to keep [her] from falling
so [she] [] stumble[ed] until [she] fell on [her] right side.” According to the claimant, she
thought that she had raised her foot up high enough to cross the threshold.
The claimant testified that a marble piece in the threshold was lifted up higher off of the
floor, about one-half inch or one inch above the surface of the floor on which she had been
walking. She stated that “when you’re coming in the door, it seems to be level, it’s level with the
floor when you’re coming in the door. But when you’re going out the door, it has this little kink
on it.” The claimant also noted that the rise had some “little chucks out of it, like broken off, like
a broken tooth.”
The claimant had walked through that particular door prior to her fall. She was “kind of”
familiar with the building, as it had been recently built. The floor became level again after the
piece of marble in the middle. She testified that there were no other doorways like this one in the
building. She also noted that after her fall, employees were not allowed to walk through that
door anymore. Pictures of the threshold, taken a month after the claimant’s fall, were entered
into evidence at a hearing before the deputy commissioner.
According to the claimant, she felt a “little sting[ing][,] burning sensation” in her right
hip when she fell. She continued with her work that day, completing the extra three-hour shift.
The claimant first sought medical attention several days later on July 12, 2013, at the hospital
emergency room, where she was diagnosed with sciatica with lower back pain. On July 15, 2013
the claimant went to an urgent care clinic, where she was diagnosed with lower extremity
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contusions, back pain, and a sprained ankle. She was taken out of work through July 20, 2013,
and placed on light-duty work through July 22, 2013.
On November 19, 2013, the claimant filed a claim for benefits alleging an injury by
accident to her right hip, right leg, and lower back that occurred on July 5, 2013. She sought an
award of medical benefits and compensation for temporary total disability beginning July 11,
2013 through July 30, 2013. The employer defended on the ground that the claimant did not
suffer a compensable injury by accident because her injury did not arise out of her employment.
The deputy commissioner found that the claimant’s injury was compensable and awarded
medical benefits and temporary total disability.
On review, the full commission, with one commissioner dissenting, found that the
“claimant here has failed to prove that she was at a heightened risk because of her employment
or that the threshold she tripped over was defective or sufficiently unusual. . . . There is . . . no
connection between the claimant’s employment and her trip and fall over the ordinary threshold
in this case.” Additionally, the commission found “no evidence that the claimant was engaged in
some employment related task which made it more likely that she would trip over the threshold
or that a conversation with her supervisors contributed to her fall.” Thus, the commission found
that the claimant’s injury did not arise out of her employment and reversed the deputy
commissioner’s decision, vacating the award. This appeal followed.
II. ANALYSIS
The claimant contends that the commission erred by holding that she did not sustain an
injury by accident arising out of her employment. Specifically, she argues that the commission
misinterpreted the findings in Dominion Virginia Power v. Pulley, No. 0866-10-1, 2011
Va. App. LEXIS 191 (Va. Ct. App. June 7, 2011), and erred in concluding that the threshold she
tripped over was not an actual risk of employment. She also contends that distraction from her
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conversation with her supervisors contributed to her injury, proving that she suffered an injury
by accident arising out of her employment.
Whether a claimant has suffered an injury by accident is a mixed question of law and
fact. Goodyear Tire & Rubber Co. v. Harris, 35 Va. App. 162, 167, 543 S.E.2d 619, 621 (2001).
In its role as the finder of fact, “the [c]ommission resolves all conflicts in the evidence and
determines the weight to be accorded the various evidentiary submissions.” Bass v. City of
Richmond Police Dep’t, 258 Va. 103, 114, 515 S.E.2d 557, 563 (1999). “On appellate review,
the factual findings of the commission are binding if they are supported by credible evidence.”
Wagner Enter., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). This Court
“does not retry facts, reweigh . . . the evidence, or make its own determination of the credibility
of the witnesses.” Id. However, “whether those [factual findings of the commission] prove the
claimant suffered an ‘injury by accident’ is a question of law” which the Court reviews de novo.
Goodyear Tire, 35 Va. App. at 168, 543 S.E.2d at 621.
An injury, to be compensable under the Workers’ Compensation Act, must “arise out of”
and “in the course of” the injured employee’s employment. Code § 65.2-101; see Simms v.
Ruby Tuesday, Inc., 281 Va. 114, 120, 704 S.E.2d 359, 362 (2011). Here, it is undisputed that
the claimant’s injury resulted from an accident “in the course of” her employment. The only
challenge is to the “arising out of” requirement necessary for the compensability of the
claimant’s injury.
“Arising out of” refers to the origin or cause of an employee’s injury. Richmond Mem’l
Hosp. v. Crane, 222 Va. 283, 285, 278 S.E.2d 877, 878 (1981). Virginia has adopted an “actual
risk” test to determine whether an accident arises out of an employee’s employment. See Hill
City Trucking, Inc. v. Christian, 238 Va. 735, 739, 385 S.E.2d 377, 379 (1989). “An ‘actual risk
of employment’ is ‘not merely the risk of being injured while at work.’” Bernardo v. Carlson
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Cos. — TGIF, 60 Va. App. 400, 405, 728 S.E.2d 508, 511 (2012) (quoting Taylor v. Mobil
Corp., 248 Va. 101, 107, 444 S.E.2d 705, 708 (1994)). Rather, “[u]nder the actual risk test, an
injury comes within the Act ‘only if there is a causal connection between the employee’s injury
and the conditions under which the employer requires the work to be done.’” Simms, 281 Va. at
122, 704 S.E.2d at 363 (quoting Hilton v. Martin, 275 Va. 176, 180, 654 S.E.2d 572, 574
(2008)).
“Under this test, if the injury can be seen to have followed
as a natural incident of the work and to have been contemplated by
a reasonable person familiar with the whole situation as a result of
the exposure occasioned by the nature of the employment, then it
arises ‘out of’ the employment. 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
workmen 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. It need not have been foreseen or expected,
but after the event it 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.”
Hill City Trucking, 238 Va. at 739, 385 S.E.2d at 379 (citation omitted) (quoting Baggett &
Meador Cos. v. Dillon, 219 Va. 633, 638, 248 S.E.2d 819, 822 (1978)). Therefore, the “actual
risk doctrine requires a ‘hazard’ or ‘danger’ not equally present ‘apart from the employment’ but
rather one ‘peculiar to the work.’” Bernardo, 60 Va. App. at 405, 728 S.E.2d at 511.
Additionally, distractions that cause the injury may be compensable if they are not “‘unrelated to
any hazard common to the workplace.’” Marion Corr. Treatment Ctr. v. Henderson, 20 Va. App.
477, 480, 458 S.E.2d 301, 303 (1995) (quoting UPS v. Fetterman, 230 Va. 257, 259, 336 S.E.2d
892, 893 (1985)).
Here, the commission made several factual findings regarding the claimant’s workplace
incident. It found that “the photographs in evidence show that the threshold, over which the
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claimant tripped, is an ordinary, non-defective threshold common to many businesses and public
buildings.” Further, it found that the one-half inch to one inch “slight rise” in the threshold was
“not sufficiently significant to be considered a defect or a risk of employment.” Therefore, the
commission found “no connection” between the claimant’s employment and her fall over the rise
in the threshold. Additionally, the fact that this was the only threshold in the building with a
raised portion was not sufficient to show that the claimant was at a heightened risk as a result of
her employment, and the commission noted that the claimant had walked through this particular
threshold on prior occasions.
Further, the commission found that there was not sufficient evidence to reasonably infer
that claimant suffered a distraction from speaking with her supervisors. It found that the
claimant merely testified that she was speaking with two supervisors prior to her fall. She did
not testify that her attention was diverted by this conversation or that the conversation in any way
contributed to her fall.
We are bound by the factual findings made by the commission as long as there is credible
evidence in support of these findings. Wagner Enters., 12 Va. App. at 894, 407 S.E.2d at 35.
Additionally, “[t]he commission is authorized to draw reasonable inferences from the evidence,
and on appeal, we will not disturb reasonable inferences drawn by the commission from the facts
proven by the evidence presented.” Turf Care, Inc. v. Henson, 51 Va. App. 318, 324, 657 S.E.2d
787, 789-90 (2008) (citation omitted). While the evidence in this case is rather sparse, there is
credible evidence in the record to support the commission’s findings. The photographs, entered
into evidence, show a slight rise in the particular threshold at issue, but the rise does not appear
uneven or irregular. The claimant testified that she had crossed the threshold on prior occasions.
She also stated that she believed she had raised her foot sufficiently high to have cleared the
threshold in this instance. These evidentiary facts support the commission’s findings that the
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threshold was not defective and that appellant was not at a heightened risk because of her
employment.
Similarly, there is credible evidence to support the commission’s finding that the
claimant was not distracted at the time of her fall. She testified that she was having a discussion
with her supervisors while crossing the threshold, but she did not specifically testify that this
conversation in any way contributed to her fall. The commission is permitted to draw reasonable
inferences from the evidence. Turf Care, 51 Va. App. at 324, 657 S.E.2d at 789-90. Here, we
deem the commission’s inference—that the claimant was not distracted at the time of her fall
because she had the ability to explain to the commission that she was in fact distracted at the
time of her fall, but failed to do so—reasonable under the facts that are in the record.
The claimant contends that the commission misinterpreted the findings in an unpublished
decision of our Court, Dominion Virginia Power v. Pulley, No. 0866-10-1, 2011 Va. App.
LEXIS 191 (Va. Ct. App. June 7, 2011). In that case, we held that the commission did not
properly apply the actual risk test to determine whether the employee’s injury arose out of her
employment. Id. at *9-10. Therefore, we reversed and remanded to the commission to
determine, based on the actual risk test, whether the employee’s injury arose out of employment.
Id. at *13-14. On remand, the commission found that “a newly installed raised threshold over
which claimant tripped required a greater degree of attentiveness to negotiate and was an actual
risk of [the employee’s] employment.” Pulley v. Dominion Va. Power, JCN 2359880 (Va.
Workers’ Comp. Comm’n Nov. 16, 2011). Here, the claimant suggests that the commission’s
decision on remand in that case supports her argument now before the Court that this raised
threshold was an actual risk of her employment.
We find the claimant’s contention of error regarding the commission’s use of Pulley
unconvincing, although we recognize that the commission misinterpreted the ultimate holding in
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that case.2 Although the commission did find the facts in Pulley “similar” to the present case,
unlike the situation in Pulley, here it applied the actual risk test. Therefore, the commission’s
comparison of the two cases did not affect the commission’s decision, since it properly applied
the actual risk test to the facts at hand.
In this case, as required under the actual risk test, the commission made findings as to
whether the claimant’s risk of injury was peculiar to her employment and not one to which the
general public was equally exposed. Bernardo, 60 Va. App. at 405, 728 S.E.2d at 511.
Specifically, the commission found that there was no heightened risk due to the claimant’s
employment and that the threshold was not defective. These factual findings are supported by
credible evidence. Therefore, they are binding on our Court on appeal, and the commission did
not err in denying the claimant’s claim.
III. CONCLUSION
Credible evidence supports the commission’s factual findings that the claimant’s risk of
injury was not peculiar to her employment. Therefore, the commission did not err by
determining that the claimant’s fall did not arise out of her employment. Accordingly, we affirm
the commission’s decision.
Affirmed.
2
The commission correctly recited Pulley as reversing and remanding for proper
application of the actual risk test. The commission, however, incorrectly interpreted the opinion
as holding that the employee failed to prove a heightened risk arising from employment. This
Court expressly remanded the case to the commission to make that factual determination.
Pulley, 2011 Va. App. LEXIS 191, at *13-14.
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Joyce Vick v. Hampton Roads Transit
Combined Opinion