Cnty. of Henrico & Va. Ass'n of Counties Grp. Self-Insurance Risk Pool v. Collawn

• Decision Date: 16 October 2018
• Docket Number: Record No. 0406-18-2
• Court: Virginia Court of Appeals
• Parties: COUNTY OF HENRICO AND VIRGINIA ASSOCIATION OF COUNTIES GROUP SELF-INSURANCE RISK POOL v. BROOKE COLLAWN

COUNTY OF HENRICO AND VIRGINIA ASSOCIATIONOF COUNTIES GROUP SELF-INSURANCE RISK POOL v. BROOKE COLLAWN

Record No. 0406-18-2

COURT OF APPEALS OF VIRGINIA

OCTOBER 16, 2018

UNPUBLISHED

Present: Judges Chafin, Russell and Senior Judge Clements

Argued at Richmond, Virginia

MEMORANDUM OPINION^* BY JUDGE WESLEY G. RUSSELL, JR.

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Scott C. Ford (Andrew E. Sassoon; Ford Richardson, P.C., on brief), for appellants.

Brody H. Reid (Berkley D. Foltz; ReidGoodwin PLC, on brief), for appellee.

The County of Henrico and its insurance carrier (collectively, "employer") appeal a decision of the Virginia Workers' Compensation Commission finding that appellee Brooke Collawn ("claimant") sustained a compensable injury by accident and awarding her medical benefits, temporary total disability, temporary partial disability, and attorney's fees. For the reasons that follow, we affirm.

BACKGROUND

On appeal, "we review the evidence in the light most favorable to the claimant because she prevailed below[.]" King William Cty. v. Jones, 66 Va. App. 531, 540, 789 S.E.2d 133, 138 (2016) (en banc).

Claimant worked for employer as a fourth-grade teacher, earning an average weekly wage of $840.38. During a summer Teacher Work Week, on August 30, 2016, she and other school personnel visited incoming students at daycare centers and apartment complexes. Claimant was twenty-six weeks pregnant at the time and was wearing a bat girl costume and flip-flops. She wears a size ten shoe.

The school employees used a bus to make their visits; they boarded at the school. When they reached their first stop, claimant injured her ankles upon exiting the bus. She fell to the ground after losing her footing when she stepped down onto one of the bus steps. The steps measured as follows: 9^½ inches in rise with a run of 9^3/8 inches; 9-inch rise with a run of 9^1/8 inches; and 8^¾ rise with a 9^1/16 inch run. Claimant was not carrying anything, there was no debris on the steps, and the lighting was fine.

Claimant was taken out of work until November 8, 2016, and when she returned on November 9, she worked only half days. Claimant then went on maternity leave on December 9, 2016.

Based on the August 30 incident, claimant filed a claim for benefits with the Commission on October 5, 2016. She sought both medical and disability benefits. The claim reported that she injured her left and right ankles when "exiting school bus." Employer denied the claim, stating that the injury was not compensable under the Virginia Workers' Compensation Act because the alleged accident did not arise out of or in the course of employment.

A hearing was held before a deputy commissioner on February 16, 2017. Records that were admitted into evidence indicated that claimant "injured both ankles upon falling approx[imately] 3 feet" after she "fell off last step" and noted that claimant suffered a "right ankle fracture dislocation" after "[s]he tripped getting off a school bus."

Claimant testified, "I misjudged the steps as I was coming down them. They were steeper than I thought." When expressly asked, "[D]o you know what caused you to fall?", claimant responded, "Yes. The steps were steeper than I had anticipated. And they were small for my size 10 shoe." She further testified that prior to her fall, she never had been on that particular bus and had been on a school bus as a teacher "five times maybe."

Over employer's objections, Dano Holland, a structural and forensic engineer, testified as an expert to the standards applicable to step design under the international building code, the model for the Virginia Uniform Statewide Building Code. His testimony was offered to compare the "measurements of the bus compared to the codes that apply, which are IBC, in the general public of most ingress and egress stairs." Holland acknowledged that the building codes did not specifically deal with buses. Based on his review of photographs of the bus, Holland concluded, "The steps of the bus, their riser heights, they're higher than what's allowable in the state code. And their tread depth isn't as wide as what's been required in the building code." He explained, "All the risers are approximately two inches [taller], and all the tread depths are approximately two inches too narrow[,]" thereby making them steeper. With respect to potential defects in the stairs, Holland stated there were none. Holland acknowledged that deviations from the building code were common.

Kevin Roye, an employee of the school district's Department of Pupil Transportation, testified on employer's behalf. He had no knowledge of any other people falling from the bus steps. He testified that he had inspected the bus and that its steps complied with requirements set forth in the Virginia School Bus Specifications. In addition, Jeanetta Lee, a claims manager with the county's risk management department, testified that the bus was no different from other buses used in the county. She further testified that, like claimant, she wore a size ten shoe and that she "had no issue maneuvering the steps."

The deputy commissioner issued his decision on March 17, 2017. In considering whether claimant, in falling from the steps of the bus, "sustain[ed] an accident which arose out of and in the course of [her] employment[,]" the deputy commissioner first noted that "[t]here is no dispute that the claimant's injury was the result of an accident which occurred in the course of her employment." The deputy commissioner then addressed whether the injury arose out of claimant's employment.

After reviewing case law involving steps, the deputy commissioner concluded that claimant's injury arose out of her employment and awarded benefits. Finding that "the difference in the bus steps" made them "steeper than steps which she normally would encounter," he reasoned that "this setting was a sufficient increased risk of her employment" to find a compensable injury.

Employer sought review by the full Commission, asserting, in part, that the deputy commissioner erred in "admitting and relying on" Holland's testimony, in finding that claimant's injury arose out of her employment, and in holding that the bus steps constituted an actual risk of claimant's employment. The parties submitted written statements in support of their positions.

In its divided February 7, 2018 review opinion, the Commission affirmed the deputy commissioner's March 2, 2017 opinion.¹ In doing so, the Commission concluded that the bus steps were "unusual in their configuration" and "the unusual steepness of the bus steps was an actual risk of claimant's employment." Furthermore, the Commission concluded that the deputycommissioner "did not err in admitting Holland's testimony." Accordingly, claimant was awarded both disability and medical benefits.

This appeal followed.

ANALYSIS

On appeal, employer does not contest that claimant suffered an injury or that the injury occurred in the course of her employment. Rather, employer argues that the Commission erred in concluding that the injury arose out of that employment and in the admission of and ultimate reliance on the expert testimony of Holland to aid in reaching that conclusion.² We address each contention below.

I. Injury arising out of claimant's employment

"Whether an injury arises out of . . . employment involves a mixed question of law and fact, which we review de novo on appeal." Snyder v. City of Richmond Police Dep't, 62 Va. App. 405, 411, 748 S.E.2d 650, 653 (2013) (internal quotation marks and citations omitted). Thus, "we are bound by the commission's underlying factual findings if those findings aresupported by credible evidence, [but] we review de novo the commission's ultimate determination as to whether the injury arose out of the claimant's employment." Id. at 411-12, 748 S.E.2d at 653-54 (internal quotation marks and citations omitted).

To establish that her injury arose from her employment, claimant had the burden to prove more than the injury occurred while she was at work, Cty. of Chesterfield v. Johnson, 237 Va. 180, 185, 376 S.E.2d 73, 76 (1989); she had to prove that the injury resulted from an "actual risk" of her employment. Taylor v. Mobil Corp., 248 Va. 101, 107, 444 S.E.2d 705, 708 (1994). Actual risks are conditions that are "peculiar to the work and not common to the neighborhood[.]" Liberty Mut. Ins. Corp. v. Herndon, 59 Va. App. 544, 557, 721 S.E.2d 32, 38 (2012) (quoting Immer & Co. v. Brosnahan, 207 Va. 720, 726, 152 S.E.2d 254, 258 (1967)). A risk is common to the neighborhood if it is "a hazard to which the employee would have been equally exposed apart from the employment." United Parcel Serv. of Am. v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 893 (1985).

We previously have defined certain motions and activities as risks of the neighborhood. Absent some additional complicating factor, we have held that "[s]imple acts of walking, bending, or turning" are risks of the neighborhood as opposed to actual risks of employment. Southside Va. Training Ctr. v. Ellis, 33 Va. App. 824, 829, 537 S.E.2d 35, 37 (2000). Similarly, everyday activities such as chewing and swallowing food, Bernard v. Carlson Cos. — TGIF, 60 Va. App. 400, 410, 728 S.E.2d 508, 513 (2012), and tying one's shoes, Fetterman, 230 Va. at 259, 336 S.E.2d at 893, are risks of the neighborhood, and thus, do not arise out of a worker's employment.

Much of our "arising out of" jurisprudence involves falls on stairs. As we observed in Bernard,

Perhaps the most common examples of the arising-out-of principle are the cases involving tripping on steps. An employeewho trips while walking up 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. Even though the employer provided the steps, and encouraged the employee to use them, if there is "nothing unusual about or wrong with the steps," an

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