Hercules, Inc. v. Stump, 1088-85

• Decision Date: 18 March 1986
• Docket Number: No. 1088-85,1088-85
• Citation: 2 Va.App. 77,341 S.E.2d 394
• Court: Virginia Court of Appeals
• Parties: HERCULES, INC. and Aetna Casualty & Surety Company v. James Daniel STUMP. Record

Page 394

341 S.E.2d 394

2 Va.App. 77

HERCULES, INC. and Aetna Casualty & Surety Company v. James Daniel STUMP.

Record No. 1088-85.

Court of Appeals of Virginia.

Argued Dec. 3, 1985.

Decided March 18, 1986.

Edwin C. Stone (Clifford L. Harrison, Spiers, Stone, Hamrick & Wall, on briefs), for appellants.

John W.L. Craig II (Jenkins, Quigley & Craig, on brief), for appellee.

Present: KOONTZ, C.J., and COLEMAN and MOON, JJ.

COLEMAN, Judge.

Hercules, Inc. and Aetna Casualty & Surety Company (collectively, employer) appeal from a decision of the Industrial Commission finding that a knee injury suffered by the appellee, James Daniel Stump (claimant), in a slip and fall on a stairway arose out of his employment. The Commission found that the injury arose out of the employment because "the conditions of ... [claimant's] employment required ... [him] to ascend and descend this particular stairway with regularity and thereby to assume a degree of risk inherent in traversing that particular obstacle." Because the finding of whether an injury "arose out" of the employment is a mixed question of law and fact, Park Oil Co. v. Parham, 1 Va.App. 166, 168, 336 S.E.2d 531, 532 (1985), we must determine whether the facts presented are sufficient as a matter of law to justify the Commission's finding. We find that they are, and affirm.

The employee has the burden to show by a preponderance of evidence an injury by accident arising out of and in the course of his employment. See Code § 65.1-7. The employer does not dispute that the injury resulted from an accident which occurred during the course of claimant's employment since it occurred within the period of employment, at a place where the employee was reasonably expected to be, and while doing something which was reasonably incident to his employment. Norfolk & Washington Steamboat Co. v. Holladay, 174 Va. 152, 157, 5 S.E.2d 486, 488 (1939). The sole issue is whether the accident arose out of his employment.

All accidental injuries which occur in the course of employment are not necessarily compensable under the Workers' Compensation Act. To be compensable, an injury must grow out of the risks particular to the nature of the work. "Risks to which all persons similarly situated are equally exposed and not traceable to some special degree to the particular employment are excluded." Dreyfus & Co. v. Meade, 142 Va. 567, 570, 129 S.E. 336, 337 (1925).

Employer, citing Dreyfus, contends that an injury arising from a slip and fall on a stairway which was not shown to be unusual or defective is not compensable because the injury arose from a hazard to which claimant would have been equally exposed apart from the employment. We disagree. The injury does not have to result from an unusual or defective condition; rather it must be caused by conditions which are particularly related to or associated with the work or work environment.

The phrase "arising out of" contained in Code § 65.1-7 refers to the "origin or cause of the injury." Baggett & Meador Cos. v. Dillon, 219 Va. 633, 637, 248 S.E.2d 819, 822 (1978). An injury arises out of the employment

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. 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 ... [t]he causative danger must be peculiar to the work and not common to the neighborhood.... [I]t 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 637-38, 248 S.E.2d at 822. (emphasis added) (citations omitted). "In deciding whether a claim arises out of the employment, ... '[t]he facts in no two cases are identical and to a certain extent each case must stand alone.' " Richmond Memorial Hospital v. Crane, 222 Va. 283, 286, 278 S.E.2d 877, 879 (1981). (citation omitted).

The facts in this case are not in dispute. On January 7, 1985, while at work, claimant was descending a wooden stairway located outdoors on employer's premises when his foot "slipped out from under [him] and when [he] hit the ground [his] knee twisted, it popped out of place." The wooden stairway, which led down to a gravel roadway, was regularly traversed by other employees in going to and from the nearest available restroom facilities. Although the stairway was subjected to the elements, claimant noticed nothing unusual or defective about the steps prior to his accident.

Immediately after the fall, claimant was examined by Dr. Kenneth Gray at the employer's clinic. Dr. Gray found a mild tear in the medial collateral ligament of claimant's right knee, which necessitated open knee surgery. On February 8, 1985, during surgery, Dr. Gray also observed and repaired two tears in the menisco cartilage which, he noted, "appeared to be quite recent." Although claimant acknowledged having had difficulty with his right knee before the industrial accident, he testified that any prior injuries had occurred long before and were 100% healed.

We conclude that the facts clearly support the Commission's finding that a causal connection existed between the claimant's injury and the conditions under which he was performing a function during and incidental to his employment. The conditions peculiar to the employment required claimant to regularly ascend and descend the stairway provided by employer as the only access to restroom facilities for employees working in that area. Any risks in traversing that particular obstacle were inherent to the employment environment.

The case of Reserve Life Insurance Co. v. Hosey, 208 Va. 568, 159 S.E.2d 633 (1968), controls the present case and supports the Commission's finding. In Hosey, the...