Nurses 4 You, Inc. v. Ferris

• Decision Date: 20 February 2007
• Docket Number: Record No. 0952-06-2.
• Citation: 641 S.E.2d 129,49 Va. App. 332
• Parties: NURSES 4 YOU, INC. and American Zurich Insurance Company v. Karen T. FERRIS.
• Court: Virginia Court of Appeals

641 S.E.2d 129

49 Va. App. 332

NURSES 4 YOU, INC. and American Zurich Insurance Company v. Karen T. FERRIS.

Record No. 0952-06-2.

Court of Appeals of Virginia, Richmond.

February 20, 2007.

Robert A. Rapaport (Kira A. Ligato; Clarke, Dolph, Rapaport, Hardy & Hull, P.L.C., on brief), Norfolk, for appellants.

Sean P. Kavanagh (Jenkins, Block & Associates, P.C, on brief), for appellee.

Present: Chief Judge FELTON, CLEMENTS and BEALES, JJ.

JEAN HARRISON CLEMENTS, Judge.

Nurses 4 You, Inc. and American Zurich Insurance Company (collectively, employer) appeal a decision of the Workers' Compensation Commission (commission) awarding Karen T. Ferris (claimant) medical benefits for the injury she sustained when she fell on a wheelchair ramp. Employer contends the commission erred in concluding that claimant's injury arose out of her employment. Finding no error, we affirm the commission's decision.

I. BACKGROUND

The relevant facts are not in dispute. On December 17, 2004, while employed by employer as a private duty nurse, claimant accompanied her patient, who was confined to a wheelchair, to his doctor's office for an appointment. Upon arriving at the office's parking lot, claimant and the patient parked in a reserved space next to a curbside wheelchair ramp that provided access to the sidewalk outside the doctor's office. After exiting the van, claimant pushed the patient up the ramp and wheeled him into the doctor's office. Claimant then headed back to the van to retrieve some paperwork and personal items needed by the patient. However, as claimant started down the same wheelchair ramp she had pushed the patient up earlier, she stumbled and fell, breaking her right wrist.

After receiving medical treatment for her wrist, claimant filed with the commission a claim for medical benefits. Employer denied the claim, asserting claimant's injury did not arise out of her employment. The deputy commissioner conducted an evidentiary hearing on the claim.

At that hearing, claimant and employer each introduced into evidence a photograph of the wheelchair ramp in question. Claimant identified both pictures as accurately depicting the ramp's condition when she fell and injured her wrist. Both photographs showed that the ramp was rectangular in shape; made of light, pebbly concrete; and in good repair. They further showed that, as viewed straight on from the parking lot, the front, left, and right sides of the ramp inclined from the level of the asphalt parking lot up to the level of the top of the concrete curb and the adjoining concrete sidewalk. The back side of the ramp abutted the curb. The middle third of the back side of the ramp was level with the top of the curb. The left and right outer thirds of the back side were angled down to the level of the parking lot. The photographs also showed that the area of the parking lot directly in front of the ramp was marked with a series of broad, parallel, white lines apparently intended to discourage parking in front of the wheelchair ramp. This demarcated area was almost as wide as the front of the ramp. The ramp, curb, and sidewalk had no markings on them, and, except for the crosswalk-like marking on the parking lot in front of the ramp and a handicapped parking sign next to the sidewalk behind the ramp, no other markings or signs were in the area of the ramp.

Claimant testified that, when, in returning to the van, she stepped onto the wheelchair ramp, her left foot landed in the center rear portion of the ramp, which, as she expected, was even with the curb and sidewalk. Based on her perception of the ramp as she approached it from the sidewalk, she also thought that, when she stepped with her right foot onto the ramp near the curb, it would land at the same level. Instead, though, it came down on the rear part of the ramp that was sloped down and, thus, a few inches lower than the center rear portion of the ramp. Because she was unprepared for the lower height at which her right foot landed, claimant lost her balance and fell. Claimant further testified as follows:

Coming down the ramp was a great deal different than going up the ramp with the wheelchair because at eye level you think you're on solid ground. And I was walking and all of a sudden I had ground and then I had no ground....

* * * * * * *

Because I thought I was — from the point of view that I was coming from — it's the same ramp I[had] just come up with the wheelchair. From the angle as you see it, it looks as if it blends in with the curb until you go to step and it gives you the impression you have solid ground and you don't.

Claimant also testified that she had nothing in her hands or arms when she fell. When asked if the concrete on the ramp was broken, claimant responded that she did not "have an opportunity to notice that." She did notice "there was gravel in the area ... on the pavement" because she scraped her skin on it when she fell, but she did not suggest the gravel caused her fall. Nor did she suggest the ramp was wet or slippery or that she was hurried or distracted when she descended the ramp and fell. Instead, she blamed the fall strictly on her inability, in approaching the ramp from the doctor's office, to tell that the rear side portion of the ramp, onto which she stepped with her right foot, was lower than the rear center portion of the ramp, onto which she had first stepped with her left foot. "From the direction I was coming," she testified, "I thought my right [foot would land] on the part [of the ramp] that was level with the curb."

Accepting claimant's testimony that her "perspective looking down on the ramp, which was uniform in coloration without demarcation, created an optical illusion that [led] her to believe that the part of the ramp on which she stepped with her right foot was level with the curb," the deputy commissioner found that claimant's "injury arose out of her employment."

Upon review, a majority of the full commission affirmed the deputy commissioner's decision that claimant's injury arose out of her employment, noting as follows:

[T]he claimant testified that she mistakenly believed the spot on which she stepped with her right foot was level with the curb because of her perspective from the top of the ramp. The Deputy Commissioner found the claimant's testimony regarding the mechanism of her accident to be implicitly credible, and we defer to the Deputy Commissioner's assessment in this regard. Moreover, our [r]eview of the relevant photographs leads us to conclude that a person standing on the sidewalk/curb and looking down at the ramp from that particular vantage point may perceive the sides of the ramp (nearest to the sidewalk) as being level with the curb.

Thus, although the ramp upon which the claimant fell may not have been "defective" per se, and while we also acknowledge that the claimant did not prove the location of her accident was poorly lit or that there were any foreign objects on the ramp causing her to fall, we find that the ramp presented a unique hazard or danger associated with the claimant's employment.

(Citations omitted.)

This appeal by employer followed.

II. ANALYSIS

To recover benefits under the Workers' Compensation Act, an injured employee "must prove by a preponderance of the evidence that the injury arose `out of and in the course of the employment.'" Lucas v. Fed. Express Corp., 41 Va.App. 130, 133, 583 S.E.2d 56, 58 (2003) (quoting Code § 65.2-101). In this case, employer does not dispute that claimant proved the injury she suffered on December 17, 2004, when she fell on the wheelchair ramp, occurred in the course of claimant's employment. Rather, employer contends solely that claimant failed to prove the injury arose out of her employment because she did not show, as she must, "that either a defect in the ramp or a condition of her employment caused or contributed to her fall." Thus, employer concludes, the commission erred in determining that claimant's injury arose out of her employment. We disagree.

The issue whether an employee's work-related injury arose out of the employment "involves a mixed question of law and fact, which we review de novo on appeal." Blaustein v. Mitre Corp., 36 Va.App. 344, 348, 550 S.E.2d 336, 338 (2001). In conducting that review, "we must view the evidence in the light most favorable to the party who prevailed before the commission." K & K Repairs & Constr. v. Endicott, 47 Va.App. 1, 6, 622 S.E.2d 227, 229 (2005). "Factual findings by the commission that are supported by credible evidence are conclusive and binding upon this Court on appeal." Southern Iron Works, Inc. v. Wallace, 16 Va.App. 131, 134, 428 S.E.2d 32, 34 (1993). Likewise, "[w]here reasonable inferences may be drawn from the evidence in support of the commission's factual findings, they will not be disturbed by this Court on appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). "In determining whether credible evidence exists to support the commission's findings of fact, `[we do] not retry the facts, reweigh ... the evidence, or make [our] own determination of the credibility of the witnesses.'" Tex Tech Indus. v. Ellis, 44 Va.App. 497, 504, 605 S.E.2d 759, 762 (2004) (quoting Wagner Enters. v. Brooks, 12 Va.App. 890, 894, 407 S.E.2d 32, 35 (1991)).

In determining whether an employee's injury arose out of the employment, we apply "the `actual risk' test, which `requires that the employment subject the employee to the particular danger that brought about his or her injury.'" Smithfield Packing Co. v. Carlton, 29 Va.App. 176, 181, 510 S.E.2d 740, 742 (1999) (quoting Lipsey v. Case, 248 Va. 59, 61, 445 S.E.2d 105, 106 (1994)). Under this test, an employee's "`injury arises "out of" the employment[ ] when there is apparent to the rational mind[,] upon...