Opinion
Record No. 1267-92-4
April 27, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
P. Dawn Bishop (William Orr Smith Associates, on brief), for appellants.
Metin A. Cay (Swiger Cay, on brief), for appellee.
Present: Judges Benton, Bray and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Peoples Drug Stores, Inc. and Travelers Indemnity Company of Illinois (collectively referred to as employer) appeal an award of temporary total disability benefits to Emmaline Austin (claimant) for injuries she sustained as a result of a fall that occurred on the employer's premises. Employer argues that the claimant failed to prove that her injury arose out of her employment because the evidence failed to show what caused her to fall while ascending the employer's steps. We agree and reverse the commission's award.
On June 5, 1991, claimant, a security guard for Peoples Drug Stores, was assigned to a security booth in the employer's parking lot. At approximately 1:00 p.m., she telephoned the main building and requested that another employee relieve her post so that she could use the restroom. Her replacement, Mr. Pham, took that she could use the restroom. Her replacement, Mr. Pham, took some time to arrive at the booth. Upon Mr. Pham's arrival, claimant hurriedly left the guard booth and headed toward the main building where the restroom was located. Entrance to the main building is gained by crossing over a large rubber mat, stepping up one step onto a cement landing, and then stepping up three cement steps to a second landing before entering the door. Although the stairs were without defect, claimant fell on the second landing in front of the entrance door, injuring her right knee, left shoulder and left leg.
Claimant is unsure of what caused her fall. She testified:
I wasn't sure what caused me to fall, outside, I thought I either tripped over the step or on the carpet mat. It all happened so fast. . . .
I will say that when I left out the guard shack and in a rush to use the rest room . . . I was moving very fast because — to tend to my needs. Maybe in the process of moving fast, I could have tripped on the step or on the mat, but I cannot say actually how I fell.
The full commission found that the claimant was hurrying at the time of her fall and that her inability to describe precisely what caused the fall was not fatal to her claim. The commission concluded that "the risk of tripping while hurriedly ascending steps is a risk of the employment, and therefore, the claimant's evidence sufficiently establishes that her injury arose out of the employment." We disagree.
Under well established principles of the Workers' Compensation Act, "[t]he burden is upon [the] claimant to prove by a preponderance of the evidence that [she] sustained a compensable injury." Virginia Dep't of Transp. v. Mosebrook, 13 Va. App. 536, 537, 413 S.E.2d 350, 351 (1992). The claimant must prove that the injury arose out of and in the course of her employment. The elements "'[a]rising out of' and 'in the course of' are used conjunctively and are not synonymous. Both requirements must be fulfilled." Virginia Polytechnic Inst. State Univ. v. Wood, 5 Va. App. 72, 75, 360 S.E.2d 376, 378 (1987) (citations omitted).
The phrase "in the course of" employment refers to "the time, place and circumstances under which the accident occurred. [A]n accident occurs in the 'course of employment' when it takes place within the period of employment, at a place where the employee may be reasonably expected to be, and while he is reasonably fulfilling the duties of his employment or is doing something which is reasonably incidental thereto."
Thore v. Chesterfield County Bd. of Supervisors, 10 Va. App. 327, 331, 391 S.E.2d 882, 885 (1990) (quoting Conner v. Bragg, 203 Va. 204, 208, 123 S.E.2d 393, 396 (1962)).
"Virginia has long recognized the personal comfort doctrine, which recognizes the human need for periodic rest and refreshment. Thus occasional breaks and excursions for food, drink, rest and restroom visitation are deemed to be in the course of employment." Ablola v. Holland Road Auto Center, Ltd., 11 Va. App. 181, 183, 397 S.E.2d 541, 543 (1990) (citations omitted). Accordingly, the claimant, who was on her way to the restroom, was in the course of her employment when she fell on the stairs.
To establish that the claimant's injury was compensable, the claimant must also prove that her injury arose out of her employment. The claimant must prove by a preponderance of the evidence that the employment at least in part caused the claimant's injuries. Immer Co. v. Brosnahan, 207 Va. 720, 152 S.E.2d 254 (1967).
An accident arises out of the employment when there is a causal connection between the claimant's injury and the conditions 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 which comes from a hazard to which the employee would have been equally exposed apart from the employment.
United Parcel Service v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 893 (1985) (citations omitted).
"[S]imply being injured at work is [insufficient] to establish compensability." County of Chesterfield v. Johnson, 237 Va. 180, 185, 376 S.E.2d 73, 76 (1989) (citing City of Richmond v. Braxton, 230 Va. 161, 355 S.E.2d 259 (1985)). The claimant must establish a causal link between the environment of the work place and her injury. Id. The evidence shows that the stairs upon which the claimant fell were without defect, and there was no evidence of any trash or debris on the steps or landing that might have caused her fall. She selected the speed and manner with which she ascended the stairs and she candidly testified that she did not know what caused her to fall.
The claimant testified that she "could have tripped on the step or on the mat," but she could not explain how she actually fell. Claimant's mere "conjecture or speculation, that she employment" is insufficient to satisfy her burden of proof.Central State Hosp. v. Wiggers, 230 Va. 157, 159, 335 S.E.2d 257, 258 (1985) (per curiam). From this record we conclude that no credible evidence supports the commission's finding that "the risk of tripping while hurriedly ascending steps" was a risk of the claimant's employment.
The claimant is not entitled to rely upon an unexplained fall presumption to replace her affirmative burden of proving that the accident and resulting injury arose out of the employment.Memorial Hosp. v. Hairston, 2 Va. App. 677, 681, 347 S.E.2d 527, 529 (1986). "[W]hen the claimant, who is in a position of being able to explain the occurrence, fails to present evidence which establishes that the injury arose out of the employment the claim for compensation must be denied." Id. at 682, 347 S.E.2d at 529. Finding no evidence in the record establishing a causal connection between the claimant's work environment and her injury, we reverse the commission's award and dismiss the application.
Reversed.
The sole question on this appeal is whether Emmaline Austin's injury to her knee, which she suffered in a fall while rushing to the restroom, arose out of her employment when the evidence proved that she could not leave her guard station until relieved by another employee. I would affirm the commission's decision that the injury by accident arose out of Austin's employment.
The evidence proved that Austin was a security guard assigned to a booth in the middle of a warehouse parking lot operated by Peoples Drug Store. During her work shift, she needed to use a restroom and telephoned her supervisor for someone to relieve her temporarily. Because the relief guard was slow getting to Austin's work station, Austin was in distress and "was . . . really rushed to use the restroom." As the relief guard arrived, Austin "quickly . . . flew out of the post because [she] couldn't hold [her] needs any more." As Austin rushed to the building where the restroom was located, she "slipped between the stairway and the carpet mat that was there." She stated that she "either tripped over the step or on the carpet mat." She could not identify which because "[i]t all happened so fast."
The commission recognized that an injury that occurs while an employee is ascending or descending steps does not automatically arise out of the employment. See County of Chesterfield v. Johnson, 237 Va. 180, 376 S.E.2d 73 (1989). However, the commission held that her need to ascend the steps hurriedly under these circumstances was a risk of the employment because Austin could not leave her post until a relief guard arrived. The relief guard came from another area and physically was unable to walk fast. When the relief guard arrived, Austin was in great distress because of her need to perform a bodily function.
To say that Austin "selected the speed and manner with which she ascended the stairs" simply ignores ordinary human experience. The speed and manner with which she ascended the stairs was controlled by the distress she suffered as a result of needing to perform bodily functions. The commission was entitled to conclude that Austin's bodily need overrode her ability to control the speed and care with which she rushed to the restroom.
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. "'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.'"
R T Investments v. Johns, 228 Va. 249, 252-53, 321 S.E.2d 287, 289 (1984) (emphasis added) (citations omitted). Austin's need to hurry was caused by the employer's requirement that she remain at her duty station until relieved and the employer's delay in causing her to be relieved. The delay in relieving Austin coupled with the requirement that she remain at her post until relieved made her need to hurry to the restroom a risk of employment.
In County of Chesterfield v. Johnson, 237 Va. 180, 376 S.E.2d 73 (1989); United Parcel Service v. Fetterman, 230 Va. 257, 336 S.E.2d 892 (1985); Central State Hospital v. Wiggers, 230 Va. 157, 335 S.E.2d 257 (1985); Richmond Memorial Hospital v. Crane, 222 Va. 283, 278 S.E.2d 877 (1981); and Memorial Hospital v. Hairston, 2 Va. App. 677, 347 S.E.2d 527 (1986), the employees were performing routine tasks that were not incidental to the character of the business where they were employed and that were not influenced by any risk connected to the work environment. Austin, however, was required to perform an act in great haste that was greatly influenced by her work environment. The need to delay going to the restroom because of security needs that dictated the continuous presence of a person at the security booth was the event that caused Austin to rush to the restroom. That was not a risk that Austin ran irrespective of employment.
I dissent.