                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Beales and Senior Judge Clements
UNPUBLISHED


              Argued at Richmond, Virginia


              VCU HEALTH SYSTEM AUTHORITY-WC
               AND VCU HEALTH SYSTEM AUTHORITY
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0099-14-2                                   JUDGE RANDOLPH A. BEALES
                                                                                OCTOBER 14, 2014
              MARSHA BOOTH


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               James G. Muncie, Jr. (Midkiff, Muncie & Ross, P.C., on brief), for
                               appellant.

                               Gregory O. Harbison (Harbison & Kavanagh, PLLC, on brief), for
                               appellee.


                     VCU Health System Authority and its insurer (collectively, employer) appeal the

              decision of the Workers’ Compensation Commission (the commission) awarding medical

              benefits to the claimant, Marsha Booth, relating to a workplace injury Ms. Booth suffered on

              July 23, 2012. Employer claims that the commission erred in finding that the claimant’s injury

              arose out of her employment. Employer contends that no credible evidence supports the

              commission’s finding. For the following reasons, we affirm the commission.

                                                        I. BACKGROUND

                     On July 23, 2012, claimant, who is a Senior Administrative Assistant in the Department

              of Emergency Medicine at VCU, tripped over the threshold of a doorway while at work, and fell.

              Claimant timely filed claims for benefits on August 8, 2012; August 27, 2012; and, October 31,

              2012. She alleged that she suffered compensable injuries to her right shoulder, right hip, right

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
knee, left knee, and lower back. Claimant filed a claim with the commission seeking medical

benefits only.

        At an April 17, 2013 hearing before a deputy commissioner, claimant testified as follows:

                 My office is located in the main hospital on the second floor and
                 every Monday it is my responsibility to do the mail for our
                 department, which requires me to walk over through the Gateway
                 building, Nelson Clinic, through a catwalk into Sanger Hall to get
                 the mail – to go to the mail drop on the first floor of Sanger. I
                 went and did that. I was on my way back and on my way back, I
                 opened the door and I tripped through the doorway and fell.

As for why claimant tripped over the threshold, she explained, “My shoe caught on a metal

stripping that was in the doorway. It is not even. It’s raised.” At the hearing, claimant entered

into evidence photographs depicting the metal stripping of the threshold. While describing the

photographs, claimant explained, “I caught my shoe at the unevenness of where we marked the

metal strip,” and “there is a little notch right in there that was sort of out of the metal stripping,

that is where my left shoe caught and tore it.” Claimant also entered into evidence a photograph

of her torn shoe.

        On January 8, 2014, a divided commission issued a review opinion reversing the deputy

commissioner’s finding that the evidence failed to prove that the metal stripping was defective.

The commission found “that the claimant was exposed to a heightened risk of injury because the

metal stripping which comprised the threshold at this particular doorway was defective.”

Furthermore, the commission found “that the photographs, along with the claimant’s credible

testimony, are sufficient to show that the defect on the right side of the metal stripping caused

her fall and subsequent injuries, and her injury therefore arose out of her employment.”

        In arriving at its conclusion that a defect in the metal stripping caused claimant to fall, the

commission cited the following portion of the transcript from claimant’s hearing:



                                                  -2-
              [Claimant:] My office is located in the main hospital on the
              second floor and every Monday it is my responsibility to do the
              mail for our department, which requires me to walk over through
              the Gateway building, Nelson Clinic, through a catwalk into
              Sanger Hall to get the mail – to go to the mail drop on the first
              floor of Sanger. I went and did that. I was on my way back and on
              my way back, I opened the door and I tripped through the doorway
              and fell.

              [Counsel:] Why did you trip?

              [Claimant:] My shoe caught on a metal stripping that was in the
              doorway. It is not even. It’s raised.

When asked to review Claimant’s Exhibit 2A – a photograph of the metal stripping – the

following exchange took place between claimant and her counsel:

              [Claimant:] I caught my shoe at the unevenness of where we
              marked the metal strip.

              [Counsel:] Can you, on this exhibit 2A, indicate where your right
              foot struck the metal strip?

              [Claimant:] Approximately right in there.

              [Counsel:] Did your left foot also strike the metal strip?

              [Claimant:] Probably a little closer in, yes, somewhere in this area
              in there.

              [Counsel:] Put “L” and “R” in the circles please. Okay. Now, can
              you describe the fall for us?

              [Claimant:] When my shoe caught, when my shoes caught,
              instantly it catapulted me forward—I mean it was an—It was an
              instant—I mean it was a flash and I was down on the ground. I
              mean it happened in a split second is basically what it felt like.

               [Counsel:] I want to turn the page. This is more of a close up
              photograph. Does that accurately reflect the way that the metal
              stripping connected to the doorway and threshold at the time of
              your accident?

              [Claimant:] That is correct.

              [Counsel:] Okay. And can you—Is it your testimony that there is
              a raise in this metal stripping?

                                              -3-
               [Claimant:] That is correct.

               [Counsel:] Can you circle the area of the raise?

               [Claimant:] It is all across here.

               [Counsel:] Okay.

               [Claimant:] And there is a little notch right in there that was sort
               of out of the metal stripping, that is where my left shoe caught and
               tore it.

The commission pointed to the fact that claimant attributed her fall to the “unevenness of the

metal strip.” In addition, the commission observed that one of the pictures depicted a metal

stripping that, on the right side, was raised compared to the rest of the metal stripping.

                                           II. ANALYSIS

        On appeal, employer argues that claimant failed to satisfy her burden of proof that her

injuries arose out of her employment, as required by the Workers’ Compensation Act. See Code

§ 65.2-101 (providing that compensable injuries must be “by accident arising out of and in the

course of the employment”); see also Marketing Profiles v. Hill, 17 Va. App. 431, 433, 437

S.E.2d 727, 729 (1993) (en banc) (noting that the claimant must prove compensability by a

preponderance of the evidence). Whether an injury arises out of the employment presents a

mixed question of law and fact. City of Waynesboro v. Griffin, 51 Va. App. 308, 312, 657

S.E.2d 782, 784 (2008).

       “The mere fact that an employee was injured at work is not enough to show that his

injury arose out of his employment.” Id. at 313, 657 S.E.2d at 784; see County of Chesterfield v.

Johnson, 237 Va. 180, 185, 376 S.E.2d 73, 76 (1989). Thus, for an injury to be compensable, a

claimant must establish “a causal connection between the claimant’s injury and the conditions

under which the employer requires the work to be performed.” R.T. Investments v. Johns, 228

Va. 249, 252, 321 S.E.2d 287, 289 (1984). Causation is a question of fact. See Bass v. City of

                                                -4-
Richmond Police Dep’t, 258 Va. 103, 114-15, 515 S.E.2d 557, 563 (1999); Ivey v. Jerry P.

Puckett Constr. Co., 230 Va. 486, 488, 338 S.E.2d 640, 641 (1986); see also Farmington Country

Club v. Marshall, 47 Va. App. 15, 26, 622 S.E.2d 233, 239 (2005).

       On appeal, this Court reviews the facts in the light most favorable to Booth, as she is the

party who prevailed in the commission. Apple Constr. Corp. v. Sexton, 44 Va. App. 458, 460,

605 S.E.2d 351, 352 (2004). “[W]e must defer to the commission’s findings of fact if supported

by credible evidence in the record.” Diaz v. Wilderness Resort Ass’n, 56 Va. App. 104, 114, 691

S.E.2d 517, 522 (2010); see Code § 65.2-706. “‘In determining whether credible evidence

exists, the appellate court does not retry the facts, reweigh the preponderance of the evidence, or

make its own determination of the credibility of the witnesses.’” Pruden v. Plasser Am. Corp.,

45 Va. App. 566, 574-75, 612 S.E.2d 738, 742 (2005) (quoting Wagner Enters. v. Brooks, 12

Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)).

       The Virginia appellate courts apply “the ‘actual risk’ test” to determine if an injury arises

out of employment. Simms v. Ruby Tuesday, Inc., 281 Va. 114, 122, 704 S.E.2d 359, 363

(2011). “Under the actual risk test, an ‘injury comes within the Act only if there is a causal

connection between the employee’s injury and the conditions under which the employer requires

the work to be done.’” Id. (quoting Hilton v. Martin, 275 Va. 176, 180, 654 S.E.2d 572, 574

(2008)). Thus, “[i]n considering the ‘arising out of’ prong” of Code § 65.2-101, Virginia

appellate courts “do not apply the ‘positional risk’ test, whereby simply sustaining an injury at

work is sufficient to establish compensability.” Hilton, 275 Va. at 180, 654 S.E.2d at 574.

               “Under [the ‘actual risk’] test, if the injury can be seen to have
               followed as a natural incident of the work and to have been
               contemplated by a reasonable person familiar with the whole
               situation as a result of the exposure occasioned by the nature of the
               employment, then it arises ‘out of’ the employment. But [the
               applicable test] excludes an injury which cannot fairly be traced to
               the employment as a contributing proximate cause and which
                                                -5-
               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.
               It must be incidental to the character of the business and not
               independent of the relation of master and servant. It need not have
               been foreseen or expected, but after the event it must appear to
               have had its origin in a risk connected with the employment, and to
               have flowed from that source as a rational consequence.”

Simms, 281 Va. at 122-23, 704 S.E.2d at 363 (quoting Bradshaw v. Aronovitch, 170 Va. 329,

335, 196 S.E. 684, 686 (1938)).

       Viewing the evidence in the light most favorable to Booth, as we must since she was the

prevailing party below, we cannot say that the commission erred in concluding that claimant’s

July 23, 2012 workplace accident arose out of her employment. First, credible evidence supports

the commission’s determination that the metal stripping was actually defective. As the Supreme

Court has explained, the word “defective” is “defined as ‘wanting in something essential: falling

below an accepted standard in regularity and soundness of form or structure or in adequacy of

function: faulty, deficient, insufficient.’ Webster's Int’l Dict. at 591; Oxford Eng. Dict. at 48766

(‘Having a defect or defects; wanting some essential part of proper quality; faulty, imperfect,

incomplete.’).” TravCo Insurance Co. v. Ward, 284 Va. 547, 556, 736 S.E.2d 321, 327 (2012).

Claimant testified here that the metal stripping was “not even,” but “raised,” and that she caught

her shoe on the “unevenness” of the metal stripping. In addition, claimant indicated that “there is

a little notch right in there that was sort of out of the metal stripping, that is where my left shoe

caught and tore it.” The photograph exhibits that depict the metal stripping corroborate

claimant’s testimony as to the unevenness of the metal stripping. Thus, claimant’s testimony and

the photographs support the commission’s finding that the metal stripping was defective within

the ordinary meaning of that term. Id. On these facts, therefore, the commission was permitted

to find that claimant was exposed to a heightened risk of injury due to the defective metal


                                                 -6-
stripping. See Simms, 281 Va. at 122-23, 704 S.E.2d at 363 (explaining that for an injury to

arise out of employment, “‘[t]he causative danger must be peculiar to the work and not common

to the neighborhood’” (quoting Bradshaw, 170 Va. at 335, 196 S.E. at 686)).

       Second, credible evidence also supports the commission’s determination that the

defective metal stripping caused claimant’s fall and subsequent injuries. See id. at 122, 704

S.E.2d at 363 (explaining that “[u]nder the actual risk test, an injury comes within the Act ‘only

if there is a causal connection between the employee’s injury and the conditions under which the

employer requires the work to be done’” (quoting Hilton, 275 Va. at 180, 654 S.E.2d at 574)). In

direct response to her counsel’s question “Why did you trip,” claimant responded, “My shoe

caught on a metal stripping that was in the doorway. It is not even. It’s raised.” Claimant

further testified, “I caught my shoe at the unevenness of where we marked the metal strip.”

       Employer argues that Dominion Virginia Power v. Pulley, Rec. No. 0866-10-1, 2011

Va. App. LEXIS 191 (Va. Ct. App. June 7, 2011), counsels toward reversal of the commission in

this case. Employer’s reliance on Pulley is misplaced, however, as the result in that unpublished

decision is not persuasive on the different circumstances here. The commission in Pulley found

that the claimant’s injury arose out of her employment since the claimant tripped over a

threshold that was raised by five-eighths of an inch. Id. at *4. This Court reversed the

commission in Pulley, finding that the commission failed to apply the actual risk test to

determine whether the claimant’s injury arose out of her employment. Id. at *10. Specifically,

the commission in Pulley made no findings of fact as to whether the claimant faced a heightened

risk of injury due to her employment, nor did the commission in Pulley make any findings of fact

as to whether the threshold in that case was defective. Id. at *10-11. Here, however, the

commission did apply the actual risk test, and found that the metal stripping was defective and

posed a heightened risk of injury to claimant. The commission also found that the defective
                                               -7-
metal stripping caused claimant’s injuries.1 Therefore, whereas the commission’s analysis was

incomplete in Pulley, the commission’s analysis here applies the actual risk test and is supported

by credible evidence in the record on appeal.

                                         III. CONCLUSION

       Credible evidence supported the commission’s finding that the metal strip was defective

and caused claimant’s workplace accident and subsequent injuries. The commission did not err

when it determined that claimant’s injuries arose out of her employment. Thus, the commission

did not err when it entered an award providing for payment of medical benefits related to the

July 23, 2012 workplace accident. Accordingly, for the foregoing reasons, we affirm the

commission’s order awarding medical benefits.

                                                                                          Affirmed.




       1
          Pulley is also factually distinguishable from this case. In Pulley, there was testimony
that the threshold over which the claimant tripped was raised by 5/8 of an inch. Id. at *3.
However, unlike here, there was no evidence in Pulley that the threshold was uneven at all.
                                                 -8-
