Johnson v. Chesterfield County, 0617-86-2

• Decision Date: 01 September 1987
• Docket Number: No. 0617-86-2,0617-86-2
• Citation: 359 S.E.2d 833,5 Va.App. 15
• Parties: Calvin L. JOHNSON v. CHESTERFIELD COUNTY. Record
• Court: Virginia Court of Appeals

Page 833

359 S.E.2d 833

5 Va.App. 15

Calvin L. JOHNSON v. CHESTERFIELD COUNTY.

Record No. 0617-86-2.

Court of Appeals of Virginia.

Sept. 1, 1987.

Michele Andrea (Malcolm Parks, III, Maloney, Yeatts & Barr, Richmond, on brief), for appellant.

Karen D. Waldron, Asst. Co. Atty., on brief, for appellee.

Present: BARROW, COLE and MOON, JJ.

BARROW, Judge.

This appeal from the Industrial Commission questions when an employee's accident is deemed to have arisen out of his employment. We conclude that the commission misapplied the applicable law; therefore, we reverse and remand for further proceedings.

At the time of the accident, the injured employee was a fifty year old water filter operator. During his work shift, he descended steps to the basement of the water filter plant to turn off raw water pumps. Later, as he began to ascend the steps, he remembered that he had to check a water meter chart, and, as he turned around on the first step, he fell to the floor. He felt a sharp pain in his knee but cannot remember if the pain occurred before or after the fall. While at work he was required to wear steel-toed safety shoes that rubbed his toes and affected his walk. He said that he had never injured his knee before. He suffered a "probable torn meniscus" and was recommended for arthroscopic surgery.

The commission found that the employee's knee "gave way as he turned on the step which caused his fall." It concluded that there were no risks "in traversing the steps" that were "inherent in the employment environment" and that there was no injury to the knee caused by the fall. For these reasons it decided that the injury did not arise out of the employment and was, therefore, not compensable.

To be compensable an injury must "arise out of ... the employment" and occur "in the course of the employment." Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 571, 159 S.E.2d 633, 635 (1968). Both concepts are prerequisite to compensability. Baggett Transportation Co. v. Dillon, 219 Va. 633, 637, 248 S.E.2d 819, 822 (1978). "[A]rising out of" employment refers to the origin or cause of the injury, while "in the course of" the employment refers to the time, place and circumstances under which the accident occurred. Id.

The employer does not deny that the accident occurred "in the course of" the employee's employment since it occurred during his work shift and while he was "reasonably fulfilling the duties of his employment...." Norfolk & Washington Steamboat Co. v. Holladay, 174 Va. 152, 157, 5 S.E.2d 486, 488 (1939). The controverted issue is whether the injury arose out of the employment.

For an injury to arise out of the employment there must be "a causal connection between the conditions under which the work is required to be performed and the resulting injury." Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). This test 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 workman would have been equally exposed apart from the employment." Id.

This exclusion is more completely defined by a comparison of several cases which discuss it. In Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 159 S.E.2d 633 (1968), the Supreme Court affirmed a finding that a knee injury, including a possible tear of a medial meniscus, was caused by an accident arising out of the employment. The employee, while doing a door to door survey for her employer, was going up the steps of a home when she felt a sharp severe pain in her knee as she made the final step. She did not know what caused the knee "to twist or turn 'because it had never happened before.' " Id. at 569, 159 S.E.2d at 634. In affirming that this injury did "arise out of the employment," the Court observed that a risk is "incidental to the employment when it belongs to or is connected with what the employee has to do in fulfilling his contract of service." Id. at 572, 159 S.E.2d at 636. It also said that the phrase "arising out of" should be given a "liberal construction in order to effectuate the humane and beneficent purposes of the [a]ct." Id.

More recently, the Supreme Court held that an injury to a leg muscle did not arise from employment when it occurred while the employee walked along a level, clean, unobstructed and well lighted corridor. Richmond Memorial Hospital v. Crane, 222 Va. 283, 285-86, 278 S.E.2d 877, 879 (1981). The Court observed that the employee did not "slip, trip, stumble or fall" and that "[n]othing within her work environment contributed to her injury." Id. The Court distinguished Hosey and pointed out that the employee in Hosey was "climbing steps, not walking along a level corridor and, more importantly, the steps 'were just a little bit higher than usual.' " Crane, 222 Va. at 286, 278 S.E.2d at 879.

Since then, this Court has concluded that the Supreme Court's observation that the steps in Hosey "were just a little bit higher than usual" was not vital to the outcome in Hosey. Hercules, Inc. v. Stump, 2 Va.App. 77, 81-82, 341 S.E.2d 394, 396-97 (1986). The reference to the height of the steps was simply an additional factor peculiar to the work environment that further distinguished the facts in Hosey from those in Crane. Id. In Stump, where an employee injured his knee when he slipped and fell from a stairway at his place of work, this Court also observed that to be compensable an injury does not have to result from an unusual or defective condition. Id. at 79, 341 S.E.2d at 395.

Another important difference between Crane and Hosey is that in Crane the cause of the injury was unknown whereas in Hosey the cause was known. In Crane the employee's muscle tear occurred when she was walking along a "level, clean, unobstructed and well lighted corridor" and without her slipping, tripping, stumbling or falling. Crane, 222 Va. at 285-86, 278 S.E.2d at 879. On the other hand, in Hosey the initial treating physician reported on a written form that the employee's torn meniscus was caused by the accident and that the employee was not suffering from some other condition. In Hosey there was a causal connection between the employee's work and the injury; in Crane there was not. Thus, the requirement that an injury must "arise out of the employment" excludes idiopathic disease, one whose cause is unknown or uncertain. Winegar v. International Telephone & Telegraph, 1 Va.App. 260, 263, 337 S.E.2d 760, 761 (1985).

Another group of cases also defines when an injury "arises out of the employment." These cases discuss the requirement as it applies to...