                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Chafin, Malveaux and Senior Judge Frank
UNPUBLISHED


              Argued at Norfolk, Virginia


              STEVEN ECHEVARRIA
                                                                                             MEMORANDUM OPINION* BY
              v.            Record No. 0105-16-1                                              JUDGE TERESA M. CHAFIN
                                                                                                 OCTOBER 18, 2016
              CITY OF CHESAPEAKE


                                     FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                                           (Michael F. Imprevento; Breit Drescher Imprevento P.C., on brief),
                                           for appellant.1

                                           Ryan C. Samuel, Assistant City Attorney, for appellee.


                            Steven Echevarria appeals a decision from the Virginia Workers’ Compensation

              Commission denying him workers’ compensation benefits for an injury he sustained when he

              slipped on a stairway during the course of his employment with the City of Chesapeake.

              Specifically, Echevarria contends that the Commission erred by concluding that the evidence

              presented did not establish that his injury arose out of his employment. For the reasons that

              follow, we affirm the Commission’s decision.

                                                                             I. BACKGROUND

                            On appeal, this Court views the evidence in the light most favorable to the City of

              Chesapeake, the prevailing party before the Commission. See Liberty Mut. Ins. Corp. v.




                                                                          
                            *
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                            1
                        An attorney did not appear on behalf of Echevarria at the oral argument scheduled for
              this case.
Herndon, 59 Va. App. 544, 550, 721 S.E.2d 32, 35 (2012). So viewed, the evidence is as

follows.

       Echevarria, a police officer, slipped on a stairway while he was investigating a potential

burglary in progress at a private residence. As he was coming down the stairs after ensuring that

no suspects were hiding on the second floor of the residence, Echevarria lost his balance and

slipped. When he slipped, he caught himself by grabbing the safety railing of the stairway.

Echevarria avoided falling, but he injured his arm when he grabbed the railing. He was

eventually diagnosed with a ruptured tendon in his left bicep, and he underwent surgery to repair

the tendon.

       The body cameras worn by Echevarria and two other police officers assisting in the

investigation recorded his accident. The videos from the body cameras showed Echevarria

walking down carpeted stairs that appeared to be in good repair and they did not reveal any

obvious defects in the stairway that caused him to slip. Rather, they simply showed Echevarria

slipping in an area where the stairway made a “u-turn” between the base of the stairs and the

second floor. As there were no intermediate landings on the stairway, the stairs fanned out to

negotiate the turn, resulting in the stairs being narrower on the inside of the turn and wider on the

outside of the turn.

       In addition to recording the actual accident, the body camera videos also captured one of

the homeowners’ responses to Echevarria’s injury. Immediately after Echevarria slipped, one of

the homeowners who was standing at the base of the stairway exclaimed, “Don’t hurt yourself! I

just slipped down the stairs. I just slipped down earlier.” The homeowner then said to another

individual who was not visible in the video, “I told you to call that man.” A short time later, the

homeowner told another officer that she had fallen on the stairs earlier that day. The homeowner

did not provide any further explanation regarding the cause of her fall.
                                                    -2-
       Although Echevarria slipped near the “u-turn” in the stairway, he did not attribute his

accident to the turn or any other defect or abnormality in the stairs. Furthermore, he did not

claim that he slipped because he was distracted or rushed by the duties of the investigation. In

response to his employer’s request for admissions, Echevarria stated that he was “unaware of any

defect in the steps, staircase or landing” and admitted that there were no foreign substances or

materials on the stairway when he slipped. He also admitted that he was not “hurrying,”

“distracted,” or “carrying anything” at the time of the accident.

       When he testified before the deputy commissioner presiding over his workers’

compensation claim, Echevarria testified that he stepped down on the center of a step just before

he slipped. He described that step as “solid.” Another police officer participating in the

investigation confirmed that the steps were of a “normal” height. Echevarria testified that he was

wearing his standard police uniform when he slipped, including the “slip-resistant” shoes

provided by the police department. He also admitted that his accident occurred in daylight and

that he was the only officer investigating the potential burglary who slipped on the stairway.

       The videos showing Echevarria’s accident were reviewed by the deputy commissioner.

The homeowner, however, did not testify at the hearing concerning Echevarria’s workers’

compensation claim or provide evidence about the stairway through another method. Echevarria

testified that he had not inspected the stairway for defects since the time of his accident, and he

did not present any additional evidence beyond the videos from the body cameras to establish

that the stairway was unusual or defective.

       After reviewing the evidence presented by the parties, the deputy commissioner

concluded that Echevarria’s injury arose from his employment. Based primarily on the

statements of the homeowner, the deputy commissioner found that Echevarria slipped due to a

defect in the stairway. While the deputy commissioner acknowledged that the homeowner’s
                                                    -3-
statements did not establish the details of the defect, he determined that the homeowner’s

statements implied that a defect existed in the stairway by referencing a previous fall and the

need for corrective action.

       The full Commission reversed the deputy commissioner’s decision. Expressly noting that

there were no obvious defects on the stairway, the Commission declined to infer that a defect

caused Echevarria to slip. The Commission concluded that the homeowner’s statements did not

establish that her previous fall was caused by a defect in the stairway, and explained that she

“may have fallen on the stairs for countless reasons beyond a defect with the step at issue.”

Additionally, the Commission reasoned that the homeowner could have been referring to a

different defect that did not contribute to Echevarria’s accident.

       One commissioner dissented from the majority’s opinion. The dissenting commissioner

concluded that the circumstantial evidence presented in this case established that Echevarria

slipped due to a defect in the stairway. Citing the remedial purposes of the Virginia Workers’

Compensation Act, the dissenting commissioner inferred that the homeowner’s statements in the

videos from the police officers’ body cameras referred to a defect in the stairway that caused

Echevarria’s accident. This appeal followed the Commission’s decision.

                                          II. ANALYSIS

       On appeal, Echevarria argues that the Commission erred by concluding that his injury did

not arise out of his employment. The Commission’s decision that an accident arises out of

employment presents a mixed question of law and fact. See Herndon, 59 Va. App. at 555, 721

S.E.2d at 37. While we review the ultimate legal issue de novo, “the [C]ommission’s factual

findings are conclusive and binding on this Court when those findings are based on credible

evidence.” City of Waynesboro v. Griffin, 51 Va. App. 308, 312, 657 S.E.2d 782, 784 (2008);



                                                    -4-
see also Code § 65.2-706(A) (“[A]n award of the Commission . . . shall be conclusive and

binding as to all questions of fact.”).

              To obtain compensation for injuries, a claimant must prove by a preponderance of the

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

employment.”2 Code § 65.2-101. In determining whether an injury arises out of employment,

                             “Virginia employs the actual risk test. A claimant’s injury arises
                             out of the employment if the manner in which the employer
                             requires the work to be performed is causally related to the
                             resulting injury.” . . . “[A]n injury does not arise out of the
                             employment when it ‘cannot be fairly 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.’”

Southside Va. Training Ctr. v. Ellis, 33 Va. App. 824, 828-29, 537 S.E.2d 35, 37 (2000) (quoting

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

              “Simple acts of walking, bending, or turning, without any other contributing

environmental factors, are not risks of employment.” Id. at 829, 537 S.E.2d at 37. “The mere

happening of an accident at the workplace, not caused by any work related risk or significant

work related exertion, is not compensable.” Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App.

482, 484, 382 S.E.2d 305, 306 (1989)). “‘[A] “critical link” must exist between the conditions of

the workplace and the injury in order for the injury to qualify as “arising out of” the

employment.’” PYA/Monarch & Reliance Ins. Co. v. Harris, 22 Va. App. 215, 221, 468 S.E.2d

688, 691 (1996) (quoting Pinkerton’s, Inc. v. Helmes, 242 Va. 378, 380, 410 S.E.2d 646, 647

(1991)).



                                                            
              2
         The City of Chesapeake conceded that Echevarria’s injury was caused by an accident
that occurred during the course of his employment.
                                                                -5-
                       Perhaps the most common examples of the arising-out-of
               principle are the cases involving tripping on steps. 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. . . . [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. [County of Chesterfield v.]
               Johnson, 237 Va. [180,] 185-86, 376 S.E.2d [73,] 76 [(1989)].

                       On the other hand, if the steps are “unusual” because they
               are “slightly higher than normal” or otherwise peculiar, then
               tripping over them would involve an accident arising out of the
               employment. Id. In such cases, the steps present an enhanced risk,
               qualitatively different from the steps most people walk up and
               down on and off the job.

Bernard v. Carlson Cos.-TGIF, 60 Va. App. 400, 407, 728 S.E.2d 508, 511-12 (2012); see also

County of Buchanan Sch. Bd. & AIU Ins. Co. v. Horton, 35 Va. App. 26, 29, 542 S.E.2d 783,

784-85 (2001) (“[I]n order for a fall on stairs to be compensable there must either be a defect in

the stairs or [the] claimant must have fallen as a result of a condition of the employment.”).

       In certain situations, an injured worker may establish that his or her injury arose out of

employment solely through circumstantial evidence.

               [T]he mere nonexistence of direct evidence in the form of the
               claimant’s memory or an eyewitness’ account does not, in and of
               itself, preclude an award of benefits.

                       On the contrary, the [C]ommission may find an explanation
               for an accident based on circumstantial evidence, when that
               evidence “allows an inference that the claimant suffered an injury
               by accident arising out of . . . his employment.”

Griffin, 51 Va. App. at 314-15, 657 S.E.2d at 785 (quoting Marketing Profiles, Inc. v. Hill, 17

Va. App. 431, 433, 437 S.E.2d 727, 728 (1993) (en banc)).

       Nevertheless, circumstantial evidence implying that an employee’s accident arose from

his or her employment must determine the issue beyond surmise or mere conjecture in order to

support an award of workers’ compensation benefits. See id. at 315, 657 S.E.2d at 785; Sullivan
                                                    -6-
v. Suffolk Peanut Co., 171 Va. 439, 443, 199 S.E. 504, 506 (1938) (“[A workers’ compensation]

award based upon surmise or conjecture will be set aside.”). “If the evidence shows that it is just

as probable that the disability resulted from a cause which is not compensable, as it is that it

resulted from one which is compensable, the claimant has not sustained the burden of proof.”

Van Geuder v. Commonwealth, 192 Va. 548, 557-58, 65 S.E.2d 565, 571 (1951) (quoting Carter

v. Hercules Powder Co., 182 Va. 282, 288, 28 S.E.2d 736, 738 (1944)).

       Echevarria’s primary argument on appeal is based solely on the homeowner’s statements.

He contends that the statements the homeowner made immediately after his accident proved that

a defect existed in the stairway and that the Commission should have inferred that the defect

caused him to slip. According to Echevarria, the homeowner referenced a defect that had the

potential to cause similar falls and needed to be repaired. While the homeowner may have been

referencing a dangerous defect in the stairway, Echevarria’s reliance on the homeowner’s

statements to establish that his injury arose from such a defect fails for two reasons. The

evidence presented to the Commission did not establish that a defect caused Echevarria to slip,

and the homeowner’s statements are ambiguous concerning the cause of her fall.

       Echevarria’s own testimony and the other evidence presented in this case suggested that

he did not slip due to a defect in the stairway. Echevarria candidly admitted that he was unaware

of any defects in the stairway that contributed to his accident. His testimony was corroborated

by the videos from the officers’ body cameras. These videos showed a stairway in good repair

without any obvious defects. Although the stairway had a “u-turn” with steps of varying widths,

Echevarria testified that he stepped on the center of a “solid” step just before his accident rather

than the narrow portion on the inside of a step negotiating the turn.

       The homeowner’s statements about a potential defect in the stairway are unclear at best.

While the homeowner stated that she fell on the stairway earlier that day, she did not provide any
                                                    -7-
explanation concerning the cause of her fall. As the Commission noted, the homeowner could

have fallen for numerous reasons that did not involve a defect in the stairway. For example, she

could have been distracted or ill when she descended the stairway. She also could have been

engaged in an activity that added to the difficulty of negotiating the stairway, such as carrying a

large or heavy item. Thus, the Commission would have had to speculate to infer that the

homeowner fell due to a defect in the stairway rather than any other reason.

       Furthermore, even if we assume that the homeowner fell due to a defect in the stairway,

no evidence established that Echevarria fell due to the same defect. Since the evidence presented

did not establish the nature of the defect that may or may not have caused the homeowner to fall

on the stairway, we cannot infer that the same defect caused Echevarria to slip. The homeowner

could have fallen due to a defect on a different part of the stairway. Again, the Commission

would have had to speculate to conclude that Echevarria slipped due to the same defect that

caused the homeowner to fall.

       In summary, the evidence did not establish that a defect in the stairway contributed to

Echevarria’s injury. The homeowner’s statements cannot be construed as proof establishing the

existence of a defect in the stairway, and Echevarria failed to present any other evidence

affirmatively establishing the existence of a defect in the stairway that caused him to slip.

Moreover, even if we assume that the homeowner’s statements referenced a defect in the

stairway, the record did not establish that the same defect caused Echevarria to slip. Under these

circumstances, an award of workers’ compensation benefits would be based on pure speculation.




                                                    -8-
                                                               III. CONCLUSION

              In the present case, the circumstantial evidence presented by Echevarria did not prove

that his injury arose from his employment.3 As Echevarria failed to prove that a defect in the

stairway or a condition of his employment caused his injury, the Commission did not err by

denying him workers’ compensation benefits. Accordingly, we affirm the Commission’s

decision.

                                                                                              Affirmed.




                                                            
              3
          While we note that the Virginia Workers’ Compensation Act should generally receive a
liberal construction in favor of the injured worker to carry out its remedial purposes, the words
“arising out of and in the course of employment” cannot be construed to allow compensation on
every claim asserted. See Southside Va. Training Ctr., 33 Va. App. at 830, 537 S.E.2d at 37.
                                                                       -9-
