Opinion
Record No. 1469-94-2
Decided: April 11, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Lee Melchor, Assistant Attorney General (James S. Gilmore, III, Attorney General; Gregory E. Lucyk, Senior Assistant Attorney General, on brief), for appellant.
No brief or argument for appellee.
Present: Judge Benton, Senior Judges Hodges and Cole
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Nottoway Correctional Center/Commonwealth of Virginia (employer) appeals from a decision of the Workers' Compensation Commission awarding benefits to Walter J. Thompson (claimant). Employer contends that the commission erred in finding that claimant's injury arose out of his employment. For the reasons that follow, we reverse the commission's award.
In order for an employee to recover under the Workers' Compensation Act, he must prove, by a preponderance of the evidence, that he suffered an "injury by accident arising out of and in the course of the employment." Code Sec. 65.2-101. "The phrase arising 'in the course of' refers to the time, place, and circumstances under which the accident occurred. The phrase arising 'out of' refers to the origin or cause of the injury." County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). In this case, we must focus upon the latter inquiry-whether the claimant's injury arose "out of" his employment. This determination involves a mixed question of law and fact and is thus reviewable on appeal. Park Oil Co. v. Parham, 1 Va. App. 166, 168, 336 S.E.2d 531, 532 (1985).
To prove that an injury arose out of the employment, claimant must "show that the conditions of the workplace or that some significant work related exertion caused the injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989).
" '[I]f 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 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. 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.' "
R T Investments, Ltd. v. Johns, 228 Va. 249, 252-53, 321 S.E.2d 287, 289 (1984) (citations omitted).
Proof that the employee tripped and twisted his ankle on the employer's premises "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." Johnson, 237 Va. at 184, 376 S.E.2d at 76. To prove the "arising out of" component, the claimant must show that a condition of the workplace either caused or contributed to his tripping on the step and that the tripping caused his injury. Id. at 184, 376 S.E.2d at 75. In Johnson, the Virginia Supreme Court denied recovery because "there was nothing unusual about or wrong with the steps at [claimant's] workplace." Id. at 186, 376 S.E.2d at 76.
On August 9, 1993, claimant sprained his ankle in the course of his employment as a correctional officer. While claimant was returning the restroom key to the control room, he was required to go up a short series of steps. On his way up the steps, he heard a noise behind him. He turned and stepped down to investigate the noise. In doing so, he missed the step below him and twisted his ankle. Here, as in Johnson, the facts show nothing unusual about the step on which claimant tripped and twisted his ankle. Claimant readily admitted that there was no defect in the steps nor was there any foreign substance on the steps. This evidence was corroborated by Gary Graham, employer's institutional safety officer, who testified that he examined the steps and found no defects. Moreover, claimant presented no evidence to explain the source of the noise which allegedly distracted him. He testified that at the time of the incident all inmates were in their cells under "lock-down." Despite this evidence, the commission found that the unexplained noise which distracted claimant, coupled with the steps, constituted the environmental hazard which caused the accident.
The record is devoid of any credible evidence to support the commission's finding that the unexplained noise, coupled with the steps, constituted an environmental hazard. Claimant and Graham testified that there was nothing unusual about the steps. Claimant did not present any evidence to explain why he tripped on the step, nor did he present any evidence to explain the source of the noise. In short, claimant produced no evidence to show that his injury resulted from a hazard connected to his work and not common to the neighborhood.
The commission's conclusion that the noise and the steps constituted an environmental hazard is not supported by any credible evidence or existing case law. "Virginia is not a 'positional risk' jurisdiction in which an accident is compensable solely because it arises in the course of employment. Virginia is an 'actual risk' jurisdiction in which an accident, to be compensable, must also arise out of the employment." Mullins v. Westmoreland Coal Co., 10 Va. App. 304, 306, 391 S.E.2d 609, 611 (1990) (citation omitted). " '[T]he causative danger must be peculiar to the work . . . .' " Johnson, 237 Va. at 183, 376 S.E.2d at 75 (citation omitted). There is no credible evidence to prove that claimant's act of turning towards an unexplained noise was related to any hazard common to the workplace.
For these reasons, we conclude the commission erred in holding that claimant met his burden of proving that his injury arose out of his employment. Accordingly, we reverse the commission's decision.
Reversed.
The evidence proved that Walter J. Thompson was a guard at a state prison. He was walking up the steps to the control room when he heard a noise in a prison cellblock. Because the prisoners were in a security "lock-down," Thompson turned to investigate the noise. In recognizing the security concern that caused Thompson to investigate the noise, the commission could draw inferences from and rely upon Thompson's statement that "where I'm working . . . it's totally different than walking out here in the street." When Thompson "turned to investigate the noise . . . [he] was still stepping down, and . . . tripped and twisted [his] ankle on the step."
In RT Investments, Ltd. v. Johns, 228 Va. 249, 321 S.E.2d 287 (1984), the Supreme Court restated the following familiar principles that must be applied to this case:
An accident arises out of the employment if there is a causal connection between the claimant's injury and the conditions under which the employer requires the work to be performed. In re McNicol, 215 Mass. 497, 499, 102 N.E. 697, 697 (1913). Quoting In re McNicol, we have said: " '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.' "
Id. at 252-53, 321 S.E.2d at 289 (citation omitted).
Recognizing that a "stairway in itself is not . . . an environment [that] constitute[s] a per se employment risk," the commission found that Thompson's risk was not merely being on a stairway but, rather, was enhanced by the need to turn to investigate while "distracted by an unexplained noise." In making that finding, the commission properly considered that Thompson was inside a penal facility and that the prisoners were in security "lock-down" when Thompson heard the noise. Because Thompson was working in a security environment, the need to turn and investigate the unexplained noise was a risk while he was on the stairway which can "fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which [Thompson] would [not] have been equally exposed apart from the employment." Id. at 253, 321 S.E.2d at 289.
The evidence proved and the commission found that Thompson's injury resulted from a work-place hazard. Because credible evidence supports that finding, I would affirm the award. I dissent.