                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, Huff and Senior Judge Annunziata
PUBLISHED


            Argued at Lexington, Virginia


            DOLLAR TREE STORES, INC. AND
             ARCH INSURANCE COMPANY
                                                                                     OPINION BY
            v.     Record No. 0474-14-3                                           JUDGE GLEN A. HUFF
                                                                                   DECEMBER 2, 2014
            ELIZABETH A. WILSON


                        FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                           Matthew J. Griffin (Emily O. Sealy; Midkiff, Muncie & Ross,
                           P.C., on brief), for appellants.

                           Elizabeth A. Wilson, pro se.

                   Dollar Tree Stores, Inc. (“employer”) appeals a decision of the Virginia Workers’

            Compensation Commission (“commission”) finding that Elizabeth A. Wilson (“claimant”)

            suffered a compensable injury. On appeal, employer asserts that the commission “erred in

            finding that the claimant sustained a compensable injury by accident arising out of her

            employment, given that the evidence did not prove that the injury was caused by an actual risk of

            the employment or an actual risk inherent and unique to the employment.” For the following

            reasons, this Court affirms the commission’s ruling.

                                                   I. BACKGROUND

                   On appeals from the commission, “we review the evidence in the light most favorable to

            the prevailing party.” R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d

            788, 788 (1990). If supported by credible evidence, the commission’s factual findings are

            “binding on appeal,” Tomes v. James City Fire, 39 Va. App. 424, 430, 573 S.E.2d 312, 315

            (2002), “even though there is evidence in the record to support a contrary finding,” Morris v.
Badger Powhatan/Figgie Int’l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986). When

“determining whether credible evidence exists,” we cannot “retry the facts, reweigh the

preponderance of the evidence, or make [our] own determination of the credibility of the

witnesses.” Wagner Enters. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). In

addition, the commission’s “conclusions upon conflicting inferences, legitimately drawn from

proven facts, are equally binding on appeal.” Watkins v. Halco Eng’g, Inc., 225 Va. 97, 101,

300 S.E.2d 761, 763 (1983). So viewed, the evidence is as follows.

       On October 21, 2011, claimant was employed as the manager of the Dollar Tree Store in

Altavista, Virginia. The store’s layout, at that time, consisted of aisles, “gondolas,” and “end

caps” for product displays and sale to the general public. The store also had four cash registers.

At the front of one of the registers was a water display stack (“water stack”), which consisted of

cases of one-gallon water containers that were stacked three cases deep and three cases wide.

       As store manager, claimant was responsible for “closing out” the store’s registers at the

end of each day. Around closing time on the day of the incident, claimant “closed out” a register

that Robin East (“East”), a store employee, had been using. Claimant handed East the register

drawer, and East started walking with the drawer towards claimant’s office. Claimant turned to

follow East, but “caught [her] foot on [the water] stack” as she was going “around the end of the

. . . register.” Claimant “grabbed the end of the register” to keep herself from falling, but

testified that she felt “immediate pain.” Additionally, claimant testified that she did not have to

“turn sideways,” “back up,” or “walk unusually” to get past the water stack.

       After tripping over the water stack, claimant did not initially realize how “severe . . . it

was.” Consequently, she finished closing down the store for the day. A week later, however,

claimant sought medical attention from Dr. Robert Sydnor (“Sydnor”). An MRI revealed “a

nondisplaced stress fracture at the left femoral neck and low grade stress reaction of the right

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femoral neck.” Claimant underwent surgery to repair the fracture, and Sydnor released her to

return to light-duty work on December 21, 2011. Claimant resumed earning her usual salary on

December 25, 2011, although she did not return to work until January 3, 2012. Sydnor released

claimant of all restrictions on March 13, 2012.

       Claimant filed a claim with the commission on February 9, 2012 seeking temporary total

disability benefits from October 22, 2011 through December 28, 2011 and temporary partial

disability benefits from December 29, 2011 through March 12, 2012. On August 9, 2012, the

deputy commissioner denied the claim for benefits, holding that claimant failed to meet her

burden of establishing that her injury arose out of her employment. Claimant appealed this

decision to the full commission, which reversed the deputy commissioner, holding that the water

stack constituted a “workplace hazard,” and remanded the case for consideration of remaining

issues. On remand, the deputy commissioner held that claimant suffered a compensable injury

by accident and awarded claimant various periods of temporary total and temporary partial

disability benefits. Employer appealed this decision to the full commission, which affirmed the

deputy commissioner’s finding of a compensable injury by accident, but modified the

compensation award. This appeal followed.

                                         II. ANALYSIS

       On appeal, employer contends that the commission erred by finding that claimant

suffered a compensable injury. Specifically, employer argues there was no evidence showing

that claimant’s injury arose out of her employment.

       “Whether an injury arises out of . . . 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) (citing Norfolk Cnty. Hosp. v. Smith, 33 Va. App. 1, 4, 531 S.E.2d 576,

578 (2000)); see also Dublin Garment Co. v. Jones, 2 Va. App. 165, 167, 342 S.E.2d 638, 638

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(1986). On review to this Court, “‘[d]ecisions of the commission as to questions of fact, if

supported by credible evidence, are conclusive and binding on this Court.’” VFP, Inc. v.

Shepherd, 39 Va. App. 289, 292, 572 S.E.2d 510, 511 (2002) (quoting WLR Foods v. Cardosa,

26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997)).

       Under Virginia’s workers’ compensation statutes, “‘injury’ means only injury by accident

arising out of and in the course of the employment.” Code § 65.2-101.

               Thus, for an injury to be compensable under the Workers’
               Compensation Act, the claimant must prove by a preponderance of
               the evidence three elements: (1) that the injury was caused by an
               accident; (2) that the injury was sustained in the course of the
               employment; and (3) that the injury arose out of the employment.

Southland Corp. v. Parson, 1 Va. App. 281, 283-84, 338 S.E.2d 162, 163 (1985). 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.”1 PYA/Monarch & Reliance Ins. Co. v. Harris,

22 Va. App. 215, 221, 468 S.E.2d 688, 689 (1996) (quoting Marketing Profiles, Inc. v. Hill, 17

Va. App. 431, 433, 437 S.E.2d 727, 729 (1993) (en banc)).

       Virginia adheres to the actual risk test to determine whether an injury arises out of the

employment. Cnty. of Chesterfield v. Johnson, 237 Va. 180, 185, 376 S.E.2d 73, 75-76 (1989).

“The phrase arising ‘out of’ refers to the origin or cause of the injury.” Id. at 183, 376 S.E.2d at

74. Under the actual risk test, 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.’”

Marketing Profiles, 17 Va. App. at 434, 437 S.E.2d at 729 (quoting Bradshaw v. Aronovitch, 170

Va. 329, 335, 196 S.E. 684, 686 (1938)). Conversely,



       1
        It is not contested in the present case that claimant’s injury occurred “in the course of”
her employment.
                                                -4-
               [a]n injury does not arise out of the employment when it “cannot
               fairly be traced to the employment as a contributing proximate
               cause and . . . comes from a hazard to which the workmen would
               have been equally exposed apart from the employment. The
               causative danger must be peculiar to the work and not common to
               the neighborhood.”

Vint v. Alleghany Reg’l Hosp., 32 Va. App. 60, 63-64, 526 S.E.2d 295, 297 (2000) (quoting

Bradshaw, 170 Va. at 335, 196 S.E. at 686).

       In the present case, this Court holds that the commission did not err by concluding that

claimant’s injury arose out of her employment. Specifically, claimant’s employment required

her to maneuver around the water stack after closing out the register for the day. As she was

doing so, her left foot caught the corner of the water stack, resulting in the injury. The

commission found, as a matter of fact, that the water stack was a hazard peculiar to the

workplace when it identified the stack as a “workplace hazard.” On appeal, this Court cannot

disturb this factual determination as it is supported by credible evidence. See Diaz v. Wilderness

Resort Ass’n, 56 Va. App. 104, 114, 691 S.E.2d 517, 522 (2010) (“[W]e must defer to the

commission’s findings of fact if supported by credible evidence in the record.”).

       The present case is distinguishable from this Court’s unpublished opinion in Jennings v.

Richmond Pub. Schs., No. 2497-11-2, 2012 Va. App. LEXIS 212 (Va. Ct. App. June 26, 2012),

upon which employer relies. In Jennings, the claimant tripped over the threshold of a doorway,

resulting in injury. The commission, sitting as the trier of fact, found “no evidence that the

threshold was unusual” or “defective in any way.” Id. at *2. As such, it did not constitute a

hazard peculiar to the claimant’s employment. By contrast, in the present case, the commission

was entitled to conclude that the water stack, around which claimant was required to maneuver

as a part of her employment, was peculiar to claimant’s workplace and not “common to the

neighborhood.” Bradshaw, 170 Va. at 335, 196 S.E. at 686.



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                                      III. CONCLUSION

       For the foregoing reasons, this Court affirms the commission’s ruling that claimant’s

injury arose out of her employment.

                                                                                       Affirmed.




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