                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Decker, AtLee and Malveaux
UNPUBLISHED


              Argued at Richmond, Virginia


              ARSENIO MOJARES
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 1016-16-2                                   JUDGE MARLA GRAFF DECKER
                                                                                NOVEMBER 22, 2016
              RK CHEVROLET, INC. AND
               VADA GROUP SELF-INSURANCE ASSOCIATION


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               (Sidney H. Kelsey, Jr., on brief), for appellant. Appellant
                               submitting on brief.

                               Kathryn Spruill Lingle (Midkiff, Muncie and Ross, P.C., on brief),
                               for appellees.


                     Arsenio Mojares (the claimant) appeals a decision of the Workers’ Compensation

              Commission (the Commission) denying his claim for medical benefits. He argues that the

              Commission erred by finding that his injury did not arise out of his employment. We conclude

              that the Commission’s factual finding that the claimant failed to establish the requisite causal

              connection between his employment and his accident was not plainly wrong. Therefore, we

              affirm the Commission’s decision.

                                                       I. BACKGROUND1

                     On December 11, 2012, the claimant, who worked for RK Chevrolet, Inc. (the employer)

              as a finance director, fell on concrete steps on the employer’s premises and sustained injuries as


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                        On appeals from the Commission, we “review the evidence in the light most favorable
              to the prevailing party” below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App, 211, 212, 390
              S.E.2d 788, 788 (1990).
a result of the fall. The claimant asked for workers’ compensation benefits.2 The employer’s

insurance carrier denied his claim.

       At the hearing before the deputy commissioner, evidence was presented regarding the

claimant’s pre-existing injuries. In 2001, he was shot while working for another employer. The

injuries left him permanently partially disabled. As a result, his gait was affected, he had limited

use of his right hand, and he used a right-handed cane. Additionally, he could climb stairs only

“one step at a time.”

       The claimant explained that as part of his job duties for the employer, he had to go

several times a day from the finance department to an adjacent building. The adjacent building

had two entrances. The shortest path between buildings was indoors and contained the steps on

which the claimant fell. The other entrance was an outdoor ramp. The interior steps where the

injury occurred did not have any defects.3 There was a single hand railing associated with the

stairs. The railing was on the claimant’s right side as he ascended the stairs. The claimant stated

that he felt that the physical demands of the job “generated undue trauma” on his legs. He

acknowledged, however, that he typically used the stairs several times a day.

       The claimant clarified that he did not use the ramp the particular time of his fall because

he “was in a hurry” to deliver paperwork for a sale. In addition, according to the claimant, cold

temperatures that day caused stiffness and weakness in his leg. He chose the shortest path

between buildings because the quicker route would allow him to deliver the required paperwork

faster and to spend less time outside in the cold. When he fell, the claimant was holding files

and his cane in his left hand and using the railing with his right hand. The claimant could not


       2
         The claimant withdrew his application for lost wages after receiving partial payment for
the days that he missed work.
       3
           Photographs of the stairs were admitted into evidence.

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explain what caused his fall. In interrogatory answers submitted early in the administrative

proceedings, the claimant described the event, stating that he suddenly “tripped [him]self and fell

on the staircase.” He surmised that he probably “slipped.”

        Medical records prepared by the physician who treated the claimant after the fall noted

that the claimant “slipped walking up concrete stairs at work.” The day after the fall, the

evaluating health care provider documented the account that the claimant “was going up stairs

when he tripped himself and fell.”

        Following the evidentiary hearing, the deputy commissioner denied the claim because the

claimant failed to prove that his injury arose “out of and in the course of his employment.” On

appeal, the Commission, with one commissioner dissenting, affirmed the deputy’s opinion that

the claimant’s injury did not arise out of his employment. It found that the record established

that “the claimant simply and inexplicably fell.” The Commission reasoned that the “claimant

did not attribute his fall to any condition of the step, railing or employment task.” It also noted

that he “made no mention of his pre-existing physical condition as a causative agent.” The

Commission considered and rejected the argument that the claimant suffered a compensable

idiopathic fall.

                                          II. ANALYSIS

        The claimant contends that the Commission erred by holding that he did not sustain a

compensable injury because he failed to prove that his injuries arose out of his employment. He

suggests that his pre-existing condition combined with the “configuration of [the] staircase”

increased his risk of falling.

        The applicable law is clearly established. As the appellant in this case, the claimant bears

the “burden of showing that reversible error was committed” by the Commission. See Burke v.

Catawba Hosp., 59 Va. App. 828, 838, 722 S.E.2d 684, 689 (2012). “Whether an injury arises

                                                -3-
out of . . . employment involves a mixed question of law and fact, which we review de novo on

appeal.” Jackson v. Ceres Marine Terminals, Inc., 64 Va. App. 459, 463, 769 S.E.2d 276, 278

(2015) (alteration in original) (quoting Blaustein v. Mitre Corp., 36 Va. App. 344, 348, 550

S.E.2d 336, 338 (2001)). The Commission’s factual decisions are “conclusive and binding” if

supported by credible evidence. Id. (quoting VFP, Inc. v. Shepherd, 39 Va. App. 289, 292, 572

S.E.2d 510, 511 (2002)). This principle applies “even [if] there is evidence in the record to

support a contrary finding.” City of Waynesboro v. Griffin, 51 Va. App. 308, 317, 657 S.E.2d

782, 786 (2008) (quoting Morris v. Badger Powhatan/Figgie Int’l, Inc., 3 Va. App. 276, 279, 348

S.E.2d 876, 877 (1986)). “Causation is a factual determination to be made by the commission,

but the standards required to prove causation and whether the evidence is sufficient to meet those

standards are legal issues which we must determine.” Anthony v. Fairfax Cty. Dep’t of Family

Servs., 36 Va. App. 98, 103, 548 S.E.2d 273, 276 (2001).

       In order to obtain compensation for an injury, a claimant must prove by a preponderance

of the evidence that he or she suffered an injury “arising out of and in the course of the

employment.”4 Code § 65.2-101. In determining whether an injury arises out of employment,

“Virginia employs the actual risk test.” Southside Va. Training Ctr. v. Ellis, 33 Va. App. 824,

828, 537 S.E.2d 35, 37 (2000) (quoting Vint v. Alleghany Reg’l Hosp., 32 Va. App. 60, 63, 526

S.E.2d 295, 297 (2000)).

       Under this test, an injury is considered to have arisen out of the employment “if the

manner in which the employer requires the work to be performed is causally related to the

resulting injury.” Id. (quoting Vint, 32 Va. App. at 63, 526 S.E.2d at 297). It must be “fairly . . .



       4
          Whether the injury occurred “in the course of” the claimant’s employment is not at
issue in this appeal. See, e.g., Bernard v. Carlson Cos. - TGIF, 60 Va. App. 400, 405, 728 S.E.2d
508, 510 (2012) (noting that “arising out of” and “in the course of” are two different prongs
under the Workers’ Compensation Act).
                                                 -4-
trace[able] to the employment as a contributing proximate cause” and not come “from a hazard

to which the workmen would have been equally exposed apart from the employment.” Id.

(quoting Vint, 32 Va. App. at 64, 526 S.E.2d at 297). “Thus, in an unexplained fall case . . . , a

claimant must prove by a preponderance of the evidence that the fall ‘arose out of’ the

employment by establishing a causal connection between his . . . employment and the fall.”

PYA/Monarch v. Harris, 22 Va. App. 215, 224, 468 S.E.2d 688, 692 (1996).

       In contrast, an injury did not arise out of employment if it was caused by “a hazard to

which the workmen would have been equally exposed apart from the employment.” Id. at 222,

468 S.E.2d at 691 (quoting Grove v. Allied Signal, Inc., 15 Va. App. 17, 19-20, 421 S.E.2d 32,

34 (1992)). “Simple acts of walking, bending, or turning, without any other contributing

environmental factors, are not risks of employment.” Southside Va. Training, 33 Va. App. at

829, 537 S.E.2d at 37. “An employee who trips while walking up a staircase at work cannot

recover compensation unless something about the steps (or some other condition of the

workplace) presented a hazard or danger peculiar to the worksite.” Bernard v. Carlson Cos. -

TGIF, 60 Va. App. 400, 407, 728 S.E.2d 508, 511 (2012). “[I]f there is ‘nothing unusual or

wrong with the steps,’ an employee who trips over them cannot show the accident ‘arose out of’

the employment.” Id. (quoting Cty. of Chesterfield v. Johnson, 237 Va. 180, 185-86, 376 S.E.2d

73, 76 (1989)).

       Here, the Commission concluded that the claimant did not prove by a preponderance of

the evidence that his fall arose out of his employment. It found that the record established that

“the claimant simply and inexplicably fell.” Credible evidence supports this factual finding in

the form of the claimant’s interrogatory answer that he “tripped [him]self,” his own description

of the incident to health care providers after the fall, his recorded statement to the insurance




                                                -5-
claims supervisor, and his claim forms. Consequently, we are bound by this critical factual

finding. See Jackson, 64 Va. App. at 463, 769 S.E.2d at 278.

       The claimant argues that this case is controlled by Virginia cases recognizing that an

individual employee can have an increased personal risk brought about by a “preexisting

personal disease.” PYA/Monarch, 22 Va. App. at 222, 468 S.E.2d at 691 (quoting Southland

Corp. v. Parson, 1 Va. App. 281, 283, 338 S.E.2d 162, 163 (1985)) (referring to this type of case

as an “idiopathic case”). This claim is not supported by the record or application of the relevant

law. Under the “idiopathic fall” doctrine, if a fall results “from a pre-existing medical condition

of the claimant,” any resulting injury is “compensable only when the conditions of the workplace

aggravate the claimant’s injury.” City of Waynesboro, 51 Va. App. at 317, 657 S.E.2d at 786.

In a case in which an injury is caused by a pre-existing condition, “no award shall be made”

without “credible evidence of any factors peculiar to [the] work environment that may have

caused or contributed to [the claimant’s] injuries.” Va. Dep’t of Transp. v. Mosebrook, 13

Va. App. 536, 538, 413 S.E.2d 350, 351-52 (1992). Whether an accidental injury was caused by

the employee’s pre-existing personal disease is a question of fact. See Southland Corp., 1

Va. App. at 283, 338 S.E.2d at 163.

       Here, the record supports the Commission’s finding that the claimant simply fell while

ascending the non-defective steps. The record also supports the Commission’s conclusion that

the fall was not caused by his pre-existing physical condition. Accordingly, the Commission did

not err in concluding that the claimant’s injury was not causally related to his employment.

                                       III. CONCLUSION

       The record supports the Commission’s factual finding that the claimant’s injury was not

causally related to the manner in which the employer required the work to be performed.




                                                -6-
Consequently, we affirm the Commission’s decision denying the claim because the injury did not

arise out of the claimant’s employment.

                                                                                    Affirmed.




                                            -7-
