                                COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, McCullough and Senior Judge Willis
Argued by teleconference


TERRY LYNN MAY
                                                               MEMORANDUM OPINION * BY
v.      Record No. 1439-11-3                                 JUDGE STEPHEN R. McCULLOUGH
                                                                     APRIL 10, 2012
TOWN OF BRIDGEWATER AND
 VIRGINIA MUNICIPAL GROUP SELF-INSURANCE
 ASSOCIATION/VML INSURANCE PROGRAMS


               FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                  Craig A. Brown (A. Thomas Lane, Jr.; A. Thomas Lane, Jr., &
                  Associate, on brief), for appellant.

                  Ralph L. Whitt, Jr. (Corey R. Pollard; Whitt & Del Bueno, P.C., on
                  brief), for appellees.


        Terry Lynn May appeals a decision of the commission denying his claim for benefits. He

argues on appeal that the commission erred in holding that his injury did not arise out of his

employment. We disagree and affirm.

                                           BACKGROUND

        The facts are straightforward and essentially undisputed. May, the claimant, was employed

by the Town of Bridgewater as a trash collector. On August 19, 2008, he was riding on the back of

a trash truck. When the truck came to a full stop, he stepped down backwards off the truck, placing

his left foot on the ground while his right foot initially remained on the step. His left knee gave a

loud pop, he felt a severe pain, and he fell to the ground. The step is 22-1/4 inches high, which is

higher than a “normal” eight-inch step. May’s hand was on a grab bar, absorbing some of his body


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
weight. His right foot was still on the step, with the majority of his weight resting on his left foot.

The claimant, who is six feet tall and weighs 240 pounds, testified that stepping down was not

strenuous or difficult. In stepping down, he did not twist or rotate his left leg or knee. The

pavement was not uneven, and there were no rocks or gravel. The surface was “nice and level.”

        Thomas S. Weber, a medical doctor specializing in sports medicine, testified on behalf of

the claimant. He diagnosed the claimant with a torn left knee meniscus.1 In several instances,

contrary to the account provided by the claimant, Dr. Weber wrote that the injury was caused by the

claimant “twisting” or “rotat[ing]” his knee. Dr. Weber explained that stepping on stairs increases

pressure on the knee. That is true of any type of stair. He “surmise[d]” that a higher stair would

place more pressure than climbing average stairs. He further noted that it could “make a difference”

to the pressure placed on the knee if some of the body weight was borne by the arms rather than the

foot. Dr. Weber acknowledged that the force and pressure would be reduced by holding on to the

grab bar, but he said he did not know by how much. He repeatedly acknowledged that it would be

speculative to determine the reduction in pressure that would be attributable to the grab bar. He

testified that, when compared to walking, stepping up would place significantly more pressure on

the knee than stepping down. Dr. Weber noted that tears of the meniscus can occur while stepping

off of an ordinary eight-inch step.

        The deputy commissioner found in favor of the claimant, finding that the “unusual height”

of the step caused May to sustain a compensable injury. The employer appealed to the commission,

which reversed the award of benefits.

                                              ANALYSIS

        On appeal from a decision of the Workers’ Compensation Commission, the evidence and all

reasonable inferences that may be drawn from that evidence are viewed in the light most favorable


        1
            Dr. Weber also found that the claimant had some osteoarthritis in his left knee.
                                                 -2-
to the party prevailing below. Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72, 577 S.E.2d 538,

539 (2003).

        “The Act has always required the claimant to carry the burden of proving, by a

preponderance of the evidence, (1) an ‘injury by accident’ or occupational disease, (2) arising out

of, and (3) in the course of, the employment.” Morris v. Morris, 238 Va. 578, 584, 358 S.E.2d 858,

862 (1989) (citations omitted). This Court reviews de novo the question of whether a work-related

injury arose out of a claimant’s employment. Blaustein v. Mitre Corp., 36 Va. App. 344, 348, 550

S.E.2d 336, 338 (2001).

                         [A]n injury does not arise out of the employment merely
                because it occurred during the performance of some employment
                duty if the act performed by the employee is not a causative hazard
                of the employment. Simple acts of walking, bending, or turning,
                without any other contributing environmental factors, are not risks of
                employment.

Haley v. Springs Global U.S., Inc., 54 Va. App. 607, 613, 681 S.E.2d 62, 65 (2009) (citations and

internal quotation marks omitted). In this vein, an injury sustained while descending an ordinary

flight of stairs does not “arise under” the employment. See Cnty. of Chesterfield v. Johnson, 237

Va. 180, 186, 376 S.E.2d 73, 76 (1989).

        May places a heavy emphasis on Reserve Life Insurance Co. v. Hosey, 208 Va. 568, 159

S.E.2d 633 (1968). In that case, the Supreme Court of Virginia affirmed an award of benefits to a

canvasser who injured her knee while ascending a flight of rock stairs composed of steps that were

“‘just a little bit higher than usual for a step.’” Id. at 569, 159 S.E.2d at 634. The claimant offered

evidence from two doctors that established a causal link between the claimant’s injury and the stairs.

Id. at 569-70, 159 S.E.2d at 634-35. The Court subsequently made clear that “[t]he facts in no two

cases are identical and to a certain extent each case must stand alone.” Richmond Mem. Hosp. v.

Crane, 222 Va. 283, 286, 278 S.E.2d 877, 879 (1981) (citation omitted). Hosey does not stand for a

rule of automatic compensation every time a worker falls after stepping onto a stair of unusual
                                                  -3-
height.2 Therefore, the question before us is whether, on the particular facts of this case, the

claimant met his burden of establishing that his injury arose out of his employment. Furthermore, in

Hosey, the commission awarded benefits, placing the claimant in a favorable position with respect

to appellate review. Hosey, 208 Va. at 572, 159 S.E.2d at 636. Here, the commission ruled against

the claimant.

        The employer argues that our decision in Haley is controlling. We agree. In Haley, the

claimant was injured while stepping into the cab of a truck. He had placed his hand on a handrail

and pulled himself up. As he placed his foot on a stair, his leg experienced a spasm and he lost all

strength in his left leg. 54 Va. App. at 610, 681 S.E.2d at 64. He was later diagnosed with a

ruptured tendon. The step in question, at sixteen inches off the ground, was slightly larger than an

ordinary step. In concluding that the injury did not arise under the claimant’s employment, this

Court noted that the medical evidence offered by the claimant indicated when the rupture occurred,

not why it occurred. Id. at 610-11, 681 S.E.2d at 64. The physician the claimant relied upon “did

not opine, nor did any other witness, that this injury was the result of the particular condition of the

steps used by the claimant at his workplace, as opposed to the normal conditions found outside of

the workplace.” Id. at 614, 681 S.E.2d at 66. Moreover, the claimant testified that going up and

down these steps did not require any abnormal exertion – “to him, these steps were

indistinguishable from the steps that he normally used outside of work.” Id. at 613, 681 S.E.2d at

65.




        2
          This Court often has had occasion to address cases involving claims stemming from
falls involving stairs. See generally Hercules, Inc. v. Stump, 2 Va. App. 77, 341 S.E.2d 394
(1986); Southside Va. Training Ctr. v. Shell, 20 Va. App. 199, 455 S.E.2d 761 (1995); Marion
Correctional Treatment Ctr. v. Henderson, 20 Va. App. 477, 458 S.E.2d 301 (1995); Cnty. of
Buchanan Sch. Bd. v. Horton, 35 Va. App. 26, 542 S.E.2d 783 (2001); Grayson Sch. Bd. v.
Cornett, 39 Va. App. 279, 572 S.E.2d 505 (2002).
                                                -4-
       Like the claimant in Haley, May testified that stepping down from the truck was not

strenuous or difficult. The truck was not moving when he stepped down, and the surface on which

he landed was completely level. Also, like the claimant in Haley, the medical evidence tendered by

May was inconclusive. To be sure, Dr. Weber explained that, in the abstract, stepping down from a

higher step will produce more pressure on the knee than stepping down from an ordinary step. He

also testified that the combination of the height of the step and the manner in which the claimant

stepped down caused the injury. This conclusion was premised on the understanding that the

claimant placed “all the pressure” on the injured leg. Dr. Weber did not have an understanding of

the fact that the claimant was holding on to anything when he stepped down. In this instance, as the

claimant acknowledged, he used the grab bar while stepping down from the truck. The claimant

further acknowledged that at least some of his weight would have been absorbed through the grab

bar. This action reduced the amount of pressure placed on the knee. Dr. Weber stated that it would

be speculative to assess how much weight would have rested on the claimant’s knee and how much

would have been absorbed by the grab bar. Dr. Weber acknowledged that meniscal tears can occur

when stepping down an ordinary step. He declined to speculate how much additional weight would

have been placed on the claimant’s knee relative to an ordinary step in light of the claimant’s use of

the grab bar. Moreover, in some of his reports, he ascribed the injury to a twisting motion,

something the claimant denied. Therefore, like the medical evidence in Haley, and unlike the

medical evidence offered by the claimant in Hosey, the medical evidence here did not establish

anything more than a speculative link between the injury and the height of the step. Further

distinguishing both Haley and Hosey is the fact that the claimant here was stepping down, rather

than stepping up. Dr. Weber testified that the pressure is “probably more” stepping up than

stepping down. In short, viewing the evidence as we must through the standard of review leads us

to conclude that, as in Haley, the medical evidence was inconclusive.

                                                 -5-
       May’s principal response to Haley is to criticize the reasoning of the decision. Under the

interpanel accord doctrine, however, the “decision of one panel ‘becomes a predicate for

application of the doctrine of stare decisis’ and cannot be overruled except by the Court of

Appeals sitting en banc or by the Virginia Supreme Court.” Clinchfield Coal Co. v. Reed, 40

Va. App. 69, 73, 577 S.E.2d 538, 540 (2003) (citation omitted); see also Commonwealth v.

Burns, 240 Va. 171, 174, 395 S.E.2d 456, 457 (1990).

       The claimant also seeks to distinguish Haley, arguing that the medical evidence offered in

that case was more tentative than the testimony of Dr. Weber in the present case. We find this

distinction unavailing for the reasons noted above. He also notes that Dr. Weber stated that the

injury to the knee was caused not only by the height of the step but also the “manner in which

Mr. May stepped.” As noted above, Dr. Weber’s incorrect presupposition was that “the manner

in which Mr. May stepped” was that he “put[] all the pressure on one leg.” Consequently, the

medical evidence, as in Haley, was inconclusive.

                                         CONCLUSION

       For the foregoing reasons, we affirm the decision of the commission.

                                                                                          Affirmed.




                                               -6-
