Southside Virginia Training Center v. Shell

*205ELDER, Judge,

dissenting.

I respectfully dissent from the majority’s opinion and would affirm the commission’s award of compensation to Shell. I believe the commission relied on sufficient facts to support its finding that conditions of Shell’s employment caused her fall from the steps.

First, the commission was entitled to draw a reasonable inference from the evidence presented that Shell was hurrying, based on the fact that she was retrieving medical records for a patient who was suffering an asthma attack. See Hawks v. Henrico County School Bd., 7 Va.App. 398, 404, 374 S.E.2d 695, 698 (1988) (stating that reasonable inferences may be drawn from credible evidence and will not be disturbed on appeal); Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510-11 (1983) (“If there is evidence or reasonable inference that can be drawn from the evidence to support the Commission’s findings, they will not be disturbed by this Court on appeal, even though there is evidence in the record to support contrary findings of fact.”). Shell testified that she knew that a van was en route to pick up the asthmatic patient, and her supervisor testified that Shell “was probably in a little bit of a rush.”

Second, evidence in the record shows that Shell was at least temporarily distracted by clients who were “recreating” and that Building 30-31 was an unfamiliar work environment for Shell. The majority accurately states that “no evidence explained that ‘recreating’ meant anything more than lounging about or enjoying oneself in a recreation room.” Nonetheless, this Court may not disturb the commission’s determination that “recreating” was one contributing factor that led Shell, whose job included supervising clients, momentarily to be distracted as she approached the steps. See, e.g., Stancill v. Ford Motor Co., 15 Va.App. 54, 58, 421 S.E.2d 872, 874 (1992) (“Factual findings of the ... Commission will be upheld on appeal if supported by credible evidence”); Code § 65.2-706. Furthermore, this Court may not disturb the commission’s inference, based upon facts in the record, that the “recreating” *206was one cause of Shell’s distraction from the different configuration of steps in Building 30-31, as compared to Building 28-29.

Even though the commission’s decision that an accident arises out of the 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). In light of the facts enumerated above, this Court cannot disturb the commission’s finding that conditions of Shell’s employment caused her to trip on the steps. For these reasons, I respectfully dissent.