Amaya-Hernandez v. NSR Sols.

MERCEDES AMAYA-HERNANDEZ v. NSR SOLUTIONS, INC. ANDGALLAGHER BASSETT SERVICES, INC.

Record No. 0044-21-4

COURT OF APPEALS OF VIRGINIA

JULY 13, 2021

UNPUBLISHED

Present: Judges Huff, Malveaux and Senior Judge Annunziata

Argued by videoconference

MEMORANDUM OPINION^* BY JUDGE MARY BENNETT MALVEAUX

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Matthew Peffer (ChasenBoscolo Injury Lawyers, on brief), for appellant.

Marilyn N. Harvey (Clarke, Dolph, Hull & Brunick, P.L.C., on brief), for appellees.

Mercedes Amaya-Hernandez ("claimant") appeals from a decision of the Virginia Workers' Compensation Commission ("the Commission") denying her claim for benefits. She argues the Commission erred when it affirmed the deputy commissioner's finding that she did not suffer an injury by accident when she fell on a set of unusual stairs at work. Claimant further argues the Commission erred by failing to apply the actual risk test and requiring her to demonstrate an injury by accident consistent with negligence principles. For the following reasons, we affirm the Commission's decision.

I. BACKGROUND

"Under our standard of review, when we consider an appeal from the Commission's decision, we must view the evidence in the light most favorable to the party who prevailedbefore the Commission." City of Newport News v. Kahikina, 71 Va. App. 536, 539 (2020). Here, the prevailing party was NSR Solutions, Inc. and Gallagher Bassett Services, Inc. (collectively "employer").

Claimant worked for employer as a custodian. Her job duties included dusting, cleaning, and removing trash from buildings at Fort Belvoir, Virginia.

At work on December 19, 2019, claimant descended a set of stairs so she could remove trash from a basement and kitchen. She testified that the stairs were concrete with a pink plastic covering and that the covering was "the same surface . . . that they use at the gyms." Claimant stated that while she was "in the last step" the "plastic surface caused [her] to slip and fall." Her forehead and arm hit the wall and she "landed sitting."

Claimant testified that she was holding on to a handrail with her left hand at the time of her fall. Although she further testified that "there was some[thing] slippery" on the lower part of the stairs, on cross-examination she reiterated her earlier statement that "the plastic caused me to slip and fall." When asked to clarify whether she had felt anything wet on the stairs, she replied, "No, I don't know. I just fell." Asked about the nature of the stairs, claimant stated that they were a "normal width. Everything is regular."

Elsa Melendez, employer's project manager, testified that one of claimant's coworkers called her to the scene of claimant's accident. She stated that claimant told her that "as she was going down the steps, she just fell and . . . land[ed] on her shoulder. . . . She said she slipped on the step." Melendez further testified that she "did not see anything" on the stairs, which she described as having "a vinyl stair tread." When asked whether there was "anything wrong with the stairs," she replied, "No, I didn't see anything. No. No, there was nothing wrong with the steps."

Claimant went to the hospital, where an emergency room physician recorded that "[claimant] notes she thought she was at the bottom of the stairs but she skipped the step by accident and fell." As a consequence of her injuries, claimant underwent a total right-shoulder replacement and received physical therapy. She filed a claim for benefits seeking both medical and temporary total disability benefits.

The deputy commissioner denied the claim after determining that claimant had failed to carry her burden of proving that her accident arose out of her employment. Claimant requested review by the full Commission.

A majority of the Commission affirmed the deputy commissioner's decision. The Commission rejected claimant's argument that the deputy commissioner had erred because the vinyl covering on the stairs was an unusual hazard that had caused claimant's injury. It noted that "beyond contending she slipped on the vinyl surface," which claimant had described as like the surface used at a gym, claimant "did not explain what about the covering increased her risk of suffering the fall, instead stating that she 'just fell.' She did not produce persuasive evidence that the vinyl covering was more slippery than other surfaces used to cover stairs." The Commission further noted Melendez's testimony denying that anything was wrong with the steps. Relying ultimately upon County of Chesterfield v. Johnson, 237 Va. 180 (1989), the Commission concluded that,

The Deputy Commissioner was not persuaded that "the vinyl coated stairs were defective, unusual or otherwise peculiar," and did not find that the stairs or the vinyl covering presented the claimant with an enhanced risk of a work-related injury. We agree. Proving that a fall on stairs arose out of the employment requires a showing that an additional risk of employment, such as a defect in the structure or a foreign substance, caused the fall. . . . [T]he claimant did not establish that a defect in the stairs or another condition of her employment caused her to fall. The evidence does not preponderate that her injuries resulted from a work-related risk or that they arose out of the employment.

Claimant appealed to this Court.

II. ANALYSIS

At issue in the instant appeal is whether claimant's injuries arose out of the course of her employment.

"An employee seeking workers' compensation benefits must prove an injury (1) 'caused by an accident,' (2) arising out of and (3) 'sustained in the course of the employment.'" Jones v. Crothall Laundry, 69 Va. App. 767, 774-75 (2019) (quoting Rush v. Univ. of Va. Health Sys., 64 Va. App. 550, 555-56 (2015)). See also Code § 65.2-101. "The phrase arising 'out of' refers to the origin or cause of the injury." O'Donoghue v. United Cont'l Holdings, Inc., 70 Va. App. 95, 103 (2019) (quoting Va. Emp. Comm'n v. Hale, 43 Va. App. 379, 384 (2004)).

"In assessing the Commission's determination regarding whether an injury arose 'out of' one's employment, the appellate court faces a mixed question of law and fact. The Court reviews the legal component of that determination de novo." Id. (citation omitted). As to factual findings, "this Court defers to the Commission in its role as fact finder. A factual finding by the Commission is 'conclusive and binding' as long as evidence in the record supports it. This principle applies 'even [if] there is evidence in the record to support contrary findings.'" Yahner v. Fire-X Corp., 70 Va. App. 265, 273 (2019) (alteration in original) (citations omitted) (quoting Jeffreys v. Uninsured Emp. Fund, 297 Va. 82, 87 (2019)). "The appellate court simply does not 'retry the facts, reweigh . . . the evidence, or make [its] own determination of the credibility of the witnesses.'" Jones, 69 Va. App. at 774 (alterations in original) (quoting Layne v. Crist Elec. Contractor, Inc., 64 Va. App. 342, 345 (2015)). "In short, '[i]f there is evidence or [a] reasonable inference that can be drawn from the evidence to support the Commission's findings, they will not be disturbed by [the] Court on appeal.'" Yahner, 70 Va. App. at 273 (alterations in original) (quoting Jeffreys, 297 Va. at 87).

Claimant argues that the Commission's determination that her injuries did not arise out of her employment was in error because she was injured when she slipped and fell "due to a unique condition of th[e] stairs"—i.e., the fact that they were "vinyl covered," which constituted a "unique hazard." She contends that the nature of the stairs "thus put [her] in actual risk of injury" and accordingly her injury arose out of her employment.

"In determining whether an injury arises out of employment, 'Virginia employs the actual risk test.'" Norris v. ETEC Mech. Corp., 69 Va. App. 591, 597 (2018) (quoting Southside Va. Training Ctr. v. Ellis, 33 Va. App. 824, 828 (2000)). "This test requires proof that 'the employment expose[d] the work[er] to the particular danger from which he was injured, notwithstanding the exposure of the public generally to like risks.'" O'Donoghue, 70 Va. App. at 104 (quoting Lucas v. Fed. Express Corp., 41 Va. App. 130, 134 (2003)). Thus, an actual risk of employment is "not merely the risk of being injured while at work" and "necessarily excludes an injury caused by '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.'" Bernard v. Carlson Companies-TGIF, 60 Va. App. 400, 405-06 (2012) (first quoting Taylor v. Mobil Corp., 248 Va. 101, 107 (1994); then quoting Hill City Trucking v. Christian, 238 Va. 735, 739 (1989)). Thus, "[s]imple acts of walking, bending, or turning, without any other contributing environmental factors, are not risks of employment." Ellis, 33 Va. App. at 829. The actual risk requirement is satisfied only 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." Dollar Tree Stores, Inc. v. Wilson, 64 Va. App. 103, 108 (2014) (quoting Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 434 (1993) (en banc)).

In the specific context at issue here, "[a]n employee who trips while walking [on] a staircase at work cannot recover compensation unless something about the steps (or some other condition of the workplace) presented a hazard or danger peculiar to the worksite." Bernard, 60 Va. App. at 407 (discussing Johnson); see also Grayson (Cnty. of) Sch. Bd. v. Cornett, 39 Va. App. 279, 287 (2002) ("It is well established that a fall down stairs does not arise out of the employment without evidence of a defect in the stairs or evidence that a condition of the employment caused the fall."); Cnty. of Buchanan Sch. Bd. v. Horton, 35 Va....