                       COURT OF APPEALS OF VIRGINIA

Present:       Judges Koontz, Elder and Senior Judge Duff


MAIDA DEVELOPMENT COMPANY, ET AL.

v.   Record No. 1419-94-1                  MEMORANDUM OPINION * BY
                                        JUDGE LAWRENCE L. KOONTZ, JR.
CAROLYN COX HAYSLETT                            JULY 25, 1995

       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

     Roger S. Mackey (Law Offices of Conrad A. Fontaine, on
     brief), for appellants.

     Raphael C. Conner (Peninsula Legal Aid Center, Inc., on
     brief), for appellee.


     Maida Development Company (employer) and its insurer appeal

an award of benefits by the Virginia Workers' Compensation

Commission (commission) to Carolyn Cox Hayslett (claimant).

Employer contends that the commission, in a divided decision,

erred in finding that claimant's fall was compensable either

because a condition of her employment contributed to her fall or

because her employment placed her in a position of more serious

risk which intensified the effect of her fall.          For the following

reasons, we affirm the commission's finding of compensability.

     We restate only those facts necessary to explain our

holding.       Viewed in the light most favorable to the commission's

ruling, Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App.
503, 504, 339 S.E.2d 916, 916 (1986), the record discloses that

claimant and several other employees were seated during their

lunch break on a series of four steps without a landing or
           *
          Pursuant to Code        § 17-116.010   this    opinion   is   not
designated for publication.
railing in front of the double-door entrance to the workplace.

When an employee approached the steps and sought access to the

building, claimant was required to stand up and give way.    At

that point she fell off the side of the steps and injured her

right leg.

     The deputy commissioner inferred from the record, although

there was no direct evidence as to the vertical width of the

step, that the step offered claimant a limited area on which to

stand and that in allowing the employee to pass, claimant had

insufficient room to stand and, thus, fell off the steps.    In

affirming the deputy commissioner's award, a majority of the

commission held that it was permitted to "take judicial notice of

the fact that steps normally present a limited area on which to

stand."   The majority further held that even if claimant's fall

was not attributable to conditions of the step, her injury was

nonetheless compensable because the steps, a common gathering

place for employees on break, placed her at an elevated height

which increased the risk of injury.   See Southland Corp. v.

Parson, 1 Va. App. 281, 287, 338 S.E.2d 162, 165 (1985).

     One commissioner dissented, asserting that the record

supported a finding that the fall was unexplained.   While not

directly addressing the assertion that the "limited area" of the

step caused the fall, the commissioner, relying on Memorial

Hospital v. Hairston, 2 Va. App. 677, 682, 347 S.E.2d 527, 529

(1986), asserted that unexplained falls in general are not



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compensable. 1

     Proof that the employee fell on the employer's premises

"adds nothing and answers nothing, when the inquiry is, did the

injury arise out of the employment.    It simply helps prove the

'in the course of' prongs of the compensability test."       County of

Chesterfield v. Johnson, 237 Va. 180, 184, 376 S.E.2d 73, 76

(1989).   Here, employer concedes that claimant's injury arose in

the course of her employment.   To prove the "arising out of"

component, a claimant must show that a condition of the workplace

either caused or contributed to the fall.     Id. at 184, 376 S.E.2d

at 75.    Furthermore, "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."     Richmond Memorial

Hospital v. Crane, 222 Va. 283, 285, 278 S.E.2d 877, 879 (1981).

     We reject the analysis of the dissenting commissioner

because it proceeds from the mistaken belief that claimant's fall

was unexplained and applies standards applicable to such falls.

The legal standards for unexplained falls are inapplicable

because falls associated with steps are de facto "explained
falls," that is falls which arise out of a known condition of the

workplace.   When an individual falls while traversing a step or
     1
      This assertion is in error. In Hairston, this Court
expressly stated that "[w]e do not here decide whether under
different circumstances a presumption [of compensability for
unexplained injuries] should be applied in a non-death case."
Hairston, 2 Va. App. at 682, 347 S.E.2d at 529.




                                 -3-
series of steps in the workplace, the fall, unless idiopathic,

occurs, at least in part, as a result of traversing the step(s).

The presence of the steps explains the fall, obviating the need

to resort to the analysis applicable to unexplained falls.

     The mere fact that the presence of steps explains, at least

in part, the fall does not support a finding that the injury

arises from the employment.   Where the steps are not unusual and

no other condition of the employment contributes to the fall, the

injury is not compensable.    Steps are a risk of everyday life

which may, depending on the specific facts of the case, be

transformed into a risk peculiar to the workplace.
     We hold that the record supports the commission's principal

position that claimant suffered a fall arising out of a condition

of her workplace and that this condition was not "common to the

neighborhood."   Crane, 222 Va. at 285, 278 S.E.2d at 879.   To

satisfy the "arising out of" prong of the compensability test,

claimant had to prove that "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."    Bradshaw v.

Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938) (emphasis

added); see also Marketing Properties, Inc. v. Hill, 17 Va. App.

431, 434, 437 S.E.2d 727, 729 (1993) (en banc).   Although

claimant testified that she did not "know how I went off the

steps or anything else," the record as a whole affords an




                                 -4-
adequate explanation of how her fall occurred. 2   A review of the

record in the light favorable to the claimant supports a finding

that the steps were unusual because there was no landing,

providing insufficient room upon which an employee might stand in

order to give way.   The absence of a railing, also indicated by

the record, to protect against a fall further supports finding a

causative link between a condition of the workplace and

claimant's fall.
     Moreover, the condition of the workplace which contributed

to claimant's fall was not merely the unusual nature of the steps

per se, but the steps as a gathering place for employees on

break.   By gathering on the steps, the employees obstructed

normal traffic into and out of the building.   The inference of

the commission that the number of employees gathered on the

steps, combined with the necessity for claimant to stand and give

way in a limited space, caused her to lose her balance and fall

off the unprotected side of the steps is one "apparent to the

rational mind."    This inference flows logically from the record

and adequately explains the fall as arising from a condition of

the employment.    See Hercules, Inc. v. Stump, 2 Va. App. 77,

80-81, 341 S.E.2d 394, 396 (1986) (although steps were not

     2
      Claimant's burden of proving that an injury arose out of
the employment includes a burden to prove that the injury was not
caused by some idiopathy. See Winegar v. Int'l Telephone &
Telegraph, 1 Va. App. 260, 261-62, 337 S.E.2d 760, 760-61. Here,
employer does not contend and no evidence in the record suggests
that claimant's fall was idiopathic.



                                 -5-
unusual or defective, condition peculiar to employment required

employees to ascend and descend the stairway more frequently than

normal); see also Reserve Life Insurance Co. v. Hosey, 208 Va.

568, 571-72, 159 S.E.2d 633, 634-35 (1968) (steps encountered by

door-to-door pollster, while not unusual, were conditions

incidental to the employment).

     Although claimant was injured during a break, the accident

occurred on employer's premises in an area where employees were

permitted to gather during break periods.   As such, employer was

responsible for the condition and use of the area and the

resulting dangerous circumstances inherent in crowding on steps
                                                     3
in front of a principal entrance to the workplace.       Thus, the

causative danger was both incidental to the character of the

workplace and dependent on the master-servant relationship.

Crane, 222 Va. at 285, 278 S.E.2d at 879.

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

                                                     Affirmed.




     3
      The record discloses that employer provided a "smoking
room" which employees used during inclement weather. However,
the fact that employer provided a designated location for
employees to gather during their breaks did not relieve it of the
responsibility to provide safe conditions in other areas of the
workplace where employees were known and permitted to congregate.
 Cf. Kraf Construction v. Ingram, 17 Va. App. 295, 299, 437
S.E.2d 424, 427 (1993) (employees must use satisfactory place
provided by employer to satisfy personal comfort or risk loss of
compensation for injuries incurred during exercise of personal
comfort).



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