Martin v. Va. Beach Pub. Sch.

SYLVIA MARTIN v. VIRGINIA BEACH PUBLIC SCHOOLS AND CORVEL CORPORATION

Record No. 1632-19-4

COURT OF APPEALS OF VIRGINIA

MARCH 31, 2020

UNPUBLISHED

Present: Judges Beales, Athey and Senior Judge Haley

Argued at Fredericksburg, Virginia

MEMORANDUM OPINION^* BY JUDGE JAMES W. HALEY, JR.

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Casey E. Duchesne (ChasenBoscolo Injury Lawyers, on brief), for appellant.

Bryan S. Peeples (Robert L. Samuel; Pender & Coward, P.C., on brief), for appellees.

Sylvia Martin ("claimant") appeals the decision of the Workers' Compensation Commission ("the Commission") that she failed to prove by a preponderance of the evidence that she sustained a compensable injury by accident on March 2, 2018. She also asserts that "the 'act of God' defense is contrary to the humanitarian purpose of the Workers' Compensation Act" and "is not applicable to [her] case." For the following reasons, we affirm the Commission's decision.

Background

On appeal from a decision of the Workers' Compensation Commission, the evidence and all reasonable inferences that may be drawn from that evidence are viewed in the light most favorable to the party prevailing below. Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72 (2003). Claimant worked at Kellam High School in Virginia Beach as a security officer, patrolling the school grounds and monitoring "hallways, doorways, [and] bathrooms." After a fall at work on February 16, 2018, however, she was placed on work restrictions that severely limited her duties.¹ Not only did those restrictions prevent her from stooping, kneeling, or climbing, they also dramatically curtailed work involving walking and standing. Following her February accident, she complained that walking was painful and that she was "[l]imping throughout the day."

Claimant remained on these work restrictions on March 2, 2018. At approximately 11:30 a.m. that morning, she was walking to lunch on school grounds when she approached a stockade metal fence that enclosed a "breezeway" leading to another school building entrance. Claimant, who ate lunch on the other side of the building, pushed open the gate² in the fence and passed through it into the breezeway.³ When she opened the gate, or door, "the wind blew it and then blew it back into [her]." Her arm was caught between the gate and the fence, and she fell onto the cement. Claimant used the gate two to four times each day and noted that the gate did not require a key to open it in the direction that she was walking; however, a key was necessary to open the gate from the opposite direction.

Claimant filed a claim for benefits on July 12, 2018. She asserted that she had landed on her left side, injuring her left leg, left hip, ribs, back, neck, left hand, and right hand. The parties agreed that the deputy commissioner would first determine whether claimant had suffered a compensable accident and would defer "[the] remaining issues related to ongoing treatment and which body parts [we]re compensable."

Citing the "actual risk" test applied in O'Donoghue v. United Continental Holdings, Inc., 70 Va. App. 95 (2019), the deputy commissioner ruled that claimant had failed to prove by a preponderance of the evidence that her accident arose out of her employment because she did not establish that "th[e] gate, its location, the surrounding environment or Claimant passing through it was a specific work-related risk that 'collaborated' with the wind (an act of God) to cause her injury."⁴ Relying on O'Donoghue and Virginia Employment Commission v. Hale, 43 Va. App. 379, 385 (2004), the deputy commissioner concluded, "[w]ithout evidence of an additional work-related risk beyond that to which the general public is exposed, we are left to conclude that Claimant's fall was caused by a natural wind force, which 'standing alone, is considered "an act of God" and does not establish that [she] is entitled to coverage under the Act.'"

Claimant sought review by the Commission. She asserted that "the design of the metal gate, built in an outdoor breezeway, inherently expose[d] it to more wind on particularly windy days." Because the gate required a key to open in one direction, claimant also argued that "it was not the type of door used by the general public." Finally, she maintained that the "act of God" defense did not apply because her accident resulted from "simply windy" conditions rather than "an unusual or extraordinary manifestation of the forces of nature that it could not under normal conditions have been anticipated or expected."

The Commission affirmed by a split vote. After concluding that the "act of God" doctrine applied to accidents involving "high winds," it addressed whether claimant had "established by preponderating evidence that her use of this particular door in this particular location created a 'heightened' or 'augmented' risk of injury beyond the general risk to anyone using a door on a windy day." It found that claimant had failed to prove that the area where she was injured was "more susceptible to[] the hazard of storms" or "continually [blowing]" winds than other areas, or that the location of the door in the breezeway "exposed it to more wind on windy days than other locations." The Commission ruled that claimant had failed to prove that "the condition of the breezeway . . . expos[ed] employees to a greater risk of injury than that posed to the general public at large." Thus, it decided that claimant had failed to prove that "'the nature and position of' the door was a risk of employment and that[,] combined with the wind gust, [it] caused the accident."

In reaching its decision, the Commission stressed that claimant testified that the gate was "heavy," but offered no additional proof "tending to show how the door's weight, structure, or location contributed to the accident." After viewing the video footage of the accident, it determined that the door was "partially covered in chain link which would provide less air resistance than a solid door." The Commission also found that the footage did not corroborate claimant's assertion that the area was "particularly windy." Therefore, it held that claimant had failed to prove that she was "exposed to an unusually high wind situation, that her employment caused her to be exposed to, or more susceptible to, injury on a windy day, or that the location of the incident exposed her to any greater risk than anyone else in that area." Accordingly, it affirmed the deputy commissioner's decision.

This appeal followed.

Analysis

To establish that an injury is compensable, a claimant "must prove by a preponderance of the evidence three elements: (1) that the injury was caused by an accident; (2) that the injury was sustained in the course of employment; and (3) that the injury arose out of the employment." Snyder v. City of Richmond Police Dep't, 62 Va. App. 405, 412 (2013) (quoting Southland Corp. v. Parson, 1 Va. App. 281, 283-84 (1985)). A claimant fails to carry that burden when her case rests "merely on conjecture or speculation." Central State Hospital v. Wiggers, 230 Va. 157, 159 (1985). Here, the issue before us is whether claimant proved that her injuries arose out of her employment.

Whether an injury arises out of employment is a mixed question of law and fact. O'Donoghue, 70 Va. App. at 103. When the Commission's factual findings underlying its decision are "based on credible evidence" and "'reasonable inferences' drawn from that evidence," its findings are "conclusive and binding." Id. (quoting Va. Tree Harvesters, Inc. v. Shelton, 62 Va. App. 524, 532-33 (2013)). "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) (quoting Jeffreys v. Uninsured Emp'r's Fund, 297 Va. 82, 87 (2019)). We review de novo the Commission's application of the controlling law to the facts. See Caplan v. Bogard, 264 Va. 219, 225 (2002). While we are not bound by the Commission's construction of the Workers' Compensation Act, we do give it weight, as the Commission is the agency charged with the administration of that law. Anagua v. Sosa, 59 Va. App. 506, 514 (2012); see also Reed, 40 Va. App. at 73 ("[C]ommission's interpretation of its enabling statute . . . is entitled to be given weight by the courts." (quoting Sturtz v. Chesapeake Corp., 38 Va. App. 672, 675 (2002))).

"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." Liberty Mut. Ins. Corp. v. Herndon, 59 Va. App. 544, 556 (2012) (quoting United Parcel Serv. of Am. v. Fetterman, 230 Va. 257, 258 (1985)). "To determine whether such a causal connection exists, Virginia applies the 'actual risk test.'" Id. (quoting Lucas v. Lucas, 212 Va. 561, 563 (1972)). "That test 'excludes an injury which comes from a hazard to which the employee would have been equally exposed apart from the employment.'" Snyder, 62 Va. App. at 412-13 (quoting Bernard v. Carlson Cos.-TGIF, 60 Va. App. 400, 405 (2012)). "The actual risk test 'requires . . . that the employment expose the workman to the particular danger from which he was injured, notwithstanding the exposure of the public generally to like risks.'" Conner v. City of Danville, 70 Va. App. 192, 201 (2019) (quoting Lucas v. Fed. Express Corp., 41 Va. App. 130, 134 (2003)). "'An actual risk of employment' is 'not merely the risk of being injured while at work.'" Snyder, 62 Va. App. at 413 (quoting Taylor v. Mobil Corp., 248 Va. 101, 107 (1994)).

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

...