Paul's Bakery Inc v. Murphy, Record No. 0314-10-2

CitationRecord No. 0314-10-2
Case DateAugust 24, 2010
CourtCourt of Appeals of Virginia


Record No. 0314-10-2

Court Of Appeals Of Virginia

Date: AUGUST 24, 2010

Heather K. Bardot (Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C., on brief), for appellants.

Wesley G. Marshall (Law Offices of Wesley G. Marshall PLC, on brief), for appellee.




The Workers' Compensation Commission awarded Charlotte Kay Murphy compensation benefits related to a fall at work. The employer appeals arguing the commission erred in finding that Murphy's fall arose out of and during the course of her employment, and that she sustained a shoulder injury. Given the deferential nature of our appellate review, we affirm.


We view the evidence on appeal in the light most favorable to "the prevailing party before the commission." Dunnavant v. Newman Tire Co., 51 Va. App. 252, 255, 656 S.E.2d 431, 433 (2008) (citation omitted).

Murphy worked as a cashier at employer's gift shop, which was located next door to employer's bakery. One afternoon, just before she was about to head home, someone reported that a boy was throwing rocks into the outside air conditioning units. Murphy went behind the gift shop to investigate whether employer's equipment was being damaged. She walked through

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the parking lot and then stepped up onto a loading dock to look behind the dumpsters. As she did so, she heard a "rustling noise" nearby. She then stepped down about seven or eight inches onto the surface near the bakery side of the adjoining shops a distance, she testified, "bigger than a step, a regular step." The loading platform lacked handrails and stood three to four feet above the ground. After Murphy heard someone yell her name, she "immediately turned around to see where the voice was coming from." "I went to step back onto the dock," she explained, "and that's when I fell."

When interviewed by employer's investigator shortly after the fall, Murphy said she tripped and fell but did not know what she tripped over. She then equivocated, saying "I don't know if I... you know tripped over something or if I just lost my balance or what happened." During her deposition, Murphy reaffirmed these statements as true but added that, after the interview with the investigator, she "actually had time to think about it" and went back to the bakery "to try to understand why [she] fell." After looking at the dock, she determined that when she attempted to ascend from the dumpster area to the dock, an irregular sized step caused her to fall.

At her evidentiary hearing, Murphy claimed her foot "got caught" on something because she later noticed a "scuff on my shoes on the end of the toe." When cross-examined at a deposition on the point, however, Murphy admitted she had previously said she did not remember her "foot catching on anything." Despite these apparent inconsistencies, Murphy again confirmed her prior statements to employer's investigator that she did not know what caused her to fall.

The business owner's son, Peter Glancy, said he saw a boy hiding behind the dumpsters. Glancy saw Murphy "coming back and forth, and she was looking for him." He yelled to her immediately before "[s]he lost her balance and rolled off the rolling dock and hit the ground."

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Glancy testified Murphy never descended from the loading dock to the dumpsters below before her fall.

The deputy commissioner who presided over the evidentiary hearing denied Murphy's claim because, among other things, she found Murphy's evidence about the cause of the accident to be unpersuasive, her testimony inconsistent, and the evidence insufficient to establish a shoulder injury. Even if the claim were compensable, the deputy held, Murphy did not prove she injured her left shoulder as a result of the fall.

In its final opinion, the commission on a split vote reversed and awarded benefits. Affirming the conclusion of an earlier interlocutory opinion (but arguably changing its reasoning), 1 the commission majority found that Murphy fell while attempting to "step back" onto the loading dock which "was higher than a regular step." Murphy v. Paul's Bakery, Inc., VWC File No. 238-53-65, 2010 Va. Wrk. Comp. LEXIS 26, at *6 (Jan. 22, 2010). This condition, coupled with the "configuration of the loading dock and the claimant's distraction by the child for whom she was searching," satisfied the commission majority that the accident arose out of employment. Id at *7.

In addition, the commission majority reaffirmed its earlier interlocutory order finding that the accident occurred during the course of Murphy's employment:

The claimant's action in attempting to protect the employer's property provides a sufficient nexus with her employment. There is a conflict in the evidence about whether her workday was finished. The claimant testified that she was still working, and the employer testified that she was finished for the day. She had not left the employer's premises, and her action in attempting to stop the child from being injured or damaging the employer's property was reasonable. We find that the claimant was in the course of her employment when the accident occurred.

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Murphy v. Paul's Bakery, Inc., VWC File No. 238-53-65, 2009 Va. Wrk. Comp. LEXIS 254, at *9-10 (July 9, 2009), reaffirmed, 2010 Va. Wrk. Comp. LEXIS 26 (Jan. 22, 2010). Finally, the commission majority found the evidence proved Murphy injured her shoulder as a result of the fall. Contesting each of these findings, employer appeals.


To be compensable, an injury must be "by accident arising out of and in the course of the employment...." Code § 65.2-101. "The words 'arising out of, ' as used in the Act, refer to the origin or cause of the injury while the phrase 'in the course of pertains to the time, place and circumstances under which the accident occurred." Clifton v. Clifton Cable Contr., 54 Va. App. 532, 539, 680 S.E.2d 348, 352 (2009) (quoting Grand Union Co. v. Bynum, 226 Va. 140, 143, 307 S.E.2d 456, 458 (1983)). "The concepts 'arising out of and 'in the course of employment are not synonymous and both conditions must be proved before compensation will be awarded." Id. (citations omitted).

"An injury arises out of one's employment if there is a causal connection between the injury and the 'conditions under which the work is required to be performed.'" Id. (quoting Dan River, Inc. v. Giggetts, 34 Va. App. 297, 304, 541 S.E.2d 294, 297 (2001)). The condition "must be peculiar to the work, incidental to the character of the business, and not independent of the master-servant relationship." Id. (citation omitted). "On the other hand, an accident occurs in the 'course of employment' when it takes place within the period of employment, at a place where the employee may be reasonably expected to be, and while he is reasonably fulfilling the duties of his employment or is doing something which is reasonably incidental thereto." Id. (quoting Conner v. Bragg, 203 Va. 204, 208, 123 S.E.2d 393, 396 (1962)).

Fairly considered, employer argues, the factual record does not support the commission's finding that Murphy's fall arose out of a specific condition of her employment. Even if it

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arguably did, employer continues, we should still reverse because Murphy's testimony triggered the preclusion rule of Massie v. Firmstone, 134 Va. 450, 114 S.E. 652 (1922). Employer also contests the commission's finding that the accident occurred during the course of Murphy's employment. Finally, employer challenges the commission's conclusion that Murphy injured her left shoulder.

A. Arising Out of Employment

On its first point, we agree with...

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