                               COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, McClanahan and Alston
Argued at Alexandria, Virginia


WAYNE SMITH
                                                             MEMORANDUM OPINION * BY
v.      Record No. 0991-10-4                              JUDGE ELIZABETH A. McCLANAHAN
                                                                 FEBRUARY 22, 2011
ROCKINGHAM (COUNTY OF) AND
 VIRGINIA ASSOCIATION OF COUNTIES
 GROUP SELF-INSURANCE


            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                Gregory P. Perigard (Burgess, Kernbach & Perigard, PLLC, on
                brief), for appellant.

                Wade T. Anderson (John C. Johnson; Frith Anderson & Peake,
                P.C., on brief), for appellees.


        The claimant appeals the Workers’ Compensation Commission’s holding that he failed to

prove his injury arose out of his employment. We view the evidence on appeal in the light most

favorable to “the prevailing party before the commission.” Dunnavant v. Newman Tire Co., 51

Va. App. 252, 255, 656 S.E.2d 431, 433 (2008) (citation omitted). Finding no error of law in the

commission’s reasoning or any irrationality in its factfinding, we affirm.

        On November 11, 2008, Smith, a lieutenant in the Rockingham County Fire Department,

was climbing into a fire engine. 1 He put his foot on the first step, 23 inches above the ground,

and placed his hand on the bar pulling himself into the engine. Smith testified that when he

pulled himself onto the first step, his foot slipped causing his right knee to twist, resulting in

immediate right knee pain. He further testified that while he was not certain exactly what caused
                                                        
              * Pursuant to Code § 17.1-413, this opinion is not designated for publication.

        1
          Smith had worked as a fireman with the Rockingham County Fire Department for 16
years at the time of the accident. 
his foot to slip, the injury resulted from the fact that he was in “an awkward position” with all of

his weight on his right knee and that he had an immediate onset of right knee pain. He could

only speculate that he slipped because of the height of the step.

        Smith acknowledged that it was a regular part of his employment to get in and out of the

fire truck in the manner described at the time of the accident. He also acknowledged that he was

not carrying anything while climbing the steps, the step was not defective, and he was not aware

of any moisture on the step. Smith was not responding to a call and was stepping up as he had

done countless times before.

        Smith reported the injury that same day and sought medical attention the following day.

Smith’s treating physician, Basil E. Smith, M.D., confirmed that Smith’s right knee injury and

the resulting need for right knee surgery were caused by his accident at work.

        The deputy commissioner who presided over the evidentiary hearing denied Smith’s

claim, because “there was nothing unusual about the condition of the steps or the motion

involved” and Smith “did not offer any persuasive evidence that the height of the step caused or

even contributed to his injury.” The deputy commissioner further stated, “the Commission

cannot simply speculate that a condition of the workplace caused or contributed to the claimant’s

accident.”

        In its final opinion, the commission on a split vote affirmed the deputy commissioner’s

decision to deny Smith’s claim for benefits, reasoning that Smith “has been climbing into fire

trucks for sixteen years and never injured his knee before. There was nothing defective or

unusual about the fire truck. [Smith] did not testify that any defect or condition of the step

caused his foot to slip.” 2

                                                        
              2
                A dissenting commissioner voted to reverse the deputy commissioner. As she viewed
the evidence, Smith’s injury would not have occurred if his foot had slipped on a normal-sized
step. 
                                                         -2-
       Smith now seeks a reversal of the commission’s decision based on its factual finding that

the injury did not arise out of the employment. We decline to do so.

                                      I. Standard of Review

       This Court reviews “questions of fact under the highest level of appellate deference. By

statute, we treat the commission’s factfinding as ‘conclusive and binding’ if it rests on a

sufficient threshold of evidence.” Thorpe v. Clary, ____ Va. App. ____, ____, ____ S.E.2d ___,

____ (Feb. 1, 2011) (quoting Berglund Chevrolet, Inc. v. Landrum, 43 Va. App. 742, 749-50,

601 S.E.2d 693, 697 (2004)). “This appellate deference is not a mere legal custom, subject to a

flexible application, but a statutory command that binds us so long as a rational mind upon

consideration of all the circumstances could come to the conclusion the commission adopted.”

Id. at ___, ___ S.E.2d at ___ (internal citations and quotation marks omitted).

       “Because we do not . . . weigh the evidence on appeal, our personal view of the

underlying factual debate plays no role in the task of appellate review.” Id. at ____, ____ S.E.2d

at ____ (internal citations and quotation marks omitted). “It thus makes no difference that ‘we

would have decided the fact[s] differently,’ Perry v. Delisle, 46 Va. App. 57, 67, 615 S.E.2d 492,

497 (2005) (en banc) (parenthetically quoting United States v. Stevenson, 396 F.3d 538, 542 (4th

Cir. 2005) (citing Anderson v. Bessemer City, 470 U.S. 564, 573 (1985))), because the statute

authorizes the commission to adopt whatever view of the evidence it considers ‘most consistent

with reason and justice,’ Georgia-Pac. Corp. v. Robinson, 32 Va. App. 1, 5, 526 S.E.2d 267, 269

(2000) (citation omitted).” Thorpe, ____ Va. App. at ____, ____ S.E.2d at ____.

                                               II. Analysis

       For an injury to be compensable, it must be “by accident arising out of and in the course

of the employment.” Code § 65.2-101. “An injury arises out of the employment when there is

apparent to the rational mind upon consideration of all the circumstances, a causal connection

                                                -3-
between the conditions under which the work is required to be performed and the resulting

injury.” K&G Abatement Co. v. Keil, 38 Va. App. 744, 756, 568 S.E.2d 416, 422 (2002)

(citation and internal quotation marks omitted). “‘The causative danger must be peculiar to the

work, incidental to the character of the business, and not independent of the master-servant

relationship.’” Id. (quoting Chesterfield v. Johnson, 237 Va. 180, 183-84, 376 S.E.2d 73, 75

(1989) (internal quotation marks omitted). This test excludes any hazard or danger “‘to which

the employee would have been equally exposed apart from the employment.’” Id. (quoting

Johnson, 237 Va. at 183, 376 S.E.2d at 75).

       An injury caused merely by using steps at work, by itself, is not compensable. Grayson

Sch. Bd. v. Cornett, 39 Va. App. 279, 287, 572 S.E.2d 505, 509 (2002). To receive

compensation, the claimant must prove that there was some “defect in the stairs” or that a

“condition of the employment caused the fall.” Id. (citing Southside Va. Training Ctr. v. Shell,

20 Va. App. 199, 203, 455 S.E.2d 761, 763 (1995)); see also County of Buchanan Sch. Bd. v.

Horton, 35 Va. App. 26, 29, 542 S.E.2d 783, 784-85 (2001). Common examples include steps of

“abnormal height or condition,” Cornett, 39 Va. App. at 287, 572 S.E.2d at 509, or with a

slippery surface, Jones v. Colonial Williamsburg Found., 10 Va. App. 521, 524, 392 S.E.2d 848,

850-51 (1990) (en banc).

       Such proof must be by a “preponderance of the evidence.” K&G Abatement Co., 38

Va. App. at 755, 568 S.E.2d at 421-22. Proof rises to this level of persuasion when “it is made to

appear more likely or probable in the sense that actual belief in its truth, derived from the

evidence, exists in the mind or minds of the tribunal, notwithstanding any doubts that may still

linger there.” N. Virginia Power Co. v. Bailey, 194 Va. 464, 471, 73 S.E.2d 425, 429 (1952); see

also Concrete Pipe & Prods. v. Const. Laborers Pension Trust, 508 U.S. 602, 622 (1993);

Henrico County Sch. Bd. v. Etter, 36 Va. App. 437, 446, 552 S.E.2d 372, 376 (2001).

                                                -4-
       The commission found that there was no causal connection between the height or

condition of the step and Smith’s knee injury.

               [Smith] was in his street clothes and he simply stepped up twenty-
               three inches onto a fire truck, when for some unknown reason his
               foot slipped, causing his knee injury. He has been climbing into
               fire trucks for sixteen years and never injured his knee before.
               There was nothing defective or unusual about the fire truck.
               [Smith] did not testify that any defect or condition of the step
               caused his foot to slip.
 
Because a rational mind could come to this conclusion under such circumstances, the

commission’s factual findings on causation must be affirmed. See generally K&G Abatement

Co., 38 Va. App. at 756, 568 S.E.2d at 422 (“The actual determination of causation is a factual

finding that will not be disturbed on appeal, if supported by credible evidence.” (citations and

internal quotation marks omitted)).

       We affirm the commission’s decision, finding it properly applied the governing legal

principles and rested on a credible factual basis.

                                                                                         Affirmed.




                                                 -5-
Alston, J., dissenting.

        As I believe that the commission erred when it found that there was no causal connection

between the height or condition of the step and Smith’s knee injury, I must respectfully disagree

with the majority.

        At the hearing before the deputy commissioner, Smith testified that climbing up and into

the fire engine was a “normal activity” that he engaged in as a firefighter with the Rockingham

County Fire Department. During direct examination, he stated that the fire engine’s step, on

which he slipped, was “a whole lot taller” than “a normal step”; in fact, the step was nearly two

feet tall. Smith further stated he had to use a “grab bar” to pull himself into the engine due to the

height of the step:

                Q: Is there any way of getting into that truck without pulling
                yourself up by the bar?

                A. Other than crawling, no. There’s really no other way to get
                into the truck. It’s kind of hard to step up that high and then take
                your weight and step up to the next step.

Smith further testified that as he stepped up, his foot slipped, causing his right knee to twist,

resulting in immediate right knee pain. He explained that as he pulled himself up, he was in an

awkward position. Thus, when he slipped, his knee bore all of his weight. The testimony in this

regard was as follows:

                Q. Okay. What was the position of your body at the time your
                right foot slipped?

                A. It was very awkward. I was pulling myself up. When you---I
                wish I could show you, but when you pull yourself up, you’ve got
                your foot on the step, and all your weight is on this leg pulling
                yourself up.

                Q. Do you know the exact mechanism of what caused your foot to
                slip?

                A. Stepping up that high on the step. Normally when you walk up
                steps you don’t have to step up that high.
                                                 -6-
               Q. What I’m looking at is [sic] though there was a mechanism that
               actually caused the slipping. Do you know exactly what that was?

               A. I would say it was the awkward position that I was in when my
               foot slipped.

       Yet, despite Smith’s testimony, the commission found,

               The claimant was in his street clothes and he simply stepped up
               twenty-three inches onto a fire truck, when for some unknown
               reason his foot slipped, causing his knee injury. He has been
               climbing into fire trucks for sixteen years and never injured his
               knee before. There was nothing defective or unusual about the fire
               truck. The claimant did not testify that any defect or condition of
               the step caused his foot to slip.

In reaching this conclusion, the commission found that Smith failed to prove a workplace

condition caused his injury. I believe that the commission’s factual finding was not supported by

credible evidence and thus, its legal conclusion was incorrect.

       “An injury comes within the scope of the Act if it results from an accident arising out of

and in the course of the injured employee’s employment.” Simms v. Ruby Tuesday, Inc., ___

Va. ___, ___, ___ S.E.2d ___, ___ (Jan. 13, 2011) (citing Code § 65.2-101; Hilton v. Martin, 275

Va. 176, 179, 654 S.E.2d 572, 574 (2008)). The test for determining whether an injury arises out

of employment is well-established.

               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. Under this 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 it excludes an injury which cannot fairly be
               traced to the employment as a contributing proximate cause and
               which 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 or [sic] expected, but after the
                                               -7-
               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.”

Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938) (quoting In re McNicol,

102 N.E. 697, 697 (Mass. 1913)). Accordingly, in my view, we must focus our inquiry in the

instant case as to whether the step on which Smith slipped was a “danger . . . peculiar to the work

and not common to the neighborhood.” See id.

       As correctly noted by the majority, “steps of ‘abnormal height or condition’” are

considered hazards that may be the cause of compensable injuries. Supra at 4 (quoting Grayson

Sch. Bd. v. Cornett, 39 Va. App. 279, 287, 572 S.E.2d 505, 509 (2002)); see also Reserve Life

Ins. Co. v. Hosey, 208 Va. 568, 569, 159 S.E.2d 633, 634 (1968). Furthermore, when a hazard

of the workplace, like abnormally tall steps, causes or contributes to an accident, the claimant

need not explain with specificity the exact mechanics that caused the injury to occur. See Hosey,

208 Va. at 569, 159 S.E.2d at 634 (holding that the claimant’s injury was a compensable injury

arising out of the employment, despite the fact that the claimant “did not know . . . what caused

her knee to twist or turn . . .”). Yet, notwithstanding this analytical framework, the commission

disregarded Smith’s unrebutted testimony that the step was “a whole lot taller” than “a normal

step” and found that there was nothing “unusual about the fire truck.”

       I also believe that this Court’s ruling in Haley v. Springs Global U.S., Inc., 54 Va. App.

607, 681 S.E.2d 62 (2009), further precludes a finding that the fire truck’s step was not peculiar

to Smith’s employment. In Haley, the claimant, who was 6’4”, was injured when pulling himself

up onto a step that was sixteen inches off the ground. 54 Va. App. at 610, 681 S.E.2d at 64. The

commission denied his claim for benefits, finding that the claimant failed to prove his injury

“arose out of” his employment. Id. at 611, 681 S.E.2d at 64. This Court held,

               Here, the evidence proved that the step onto which claimant placed
               his left foot was sixteen inches off the ground, which the parties
                                               -8-
               agree is taller than a “normal” step in a traditional staircase.
               However, claimant testified that, for him, going up and down these
               steps into the switcher did not require any abnormal exertion—to
               him, these steps were indistinguishable from the steps that he
               normally used outside of work. Although on brief claimant
               contends that stepping up onto the switcher was “an unusual
               movement,” his testimony denied this claim. . . . Especially given
               claimant’s height, the commission certainly was justified in
               believing his representations that climbing a sixteen-inch step did
               not create any extra exertion for him. Therefore, his injury, while
               it occurred at the workplace, did not arise out of his employment.

Id. at 613, 681 S.E.2d at 65 (emphasis added). This Court then concluded, “[g]iven claimant

here stated that the act of stepping up onto a sixteen-inch step did not cause him any greater

exertion than walking up any normal set of steps, there is sufficient evidence in this record to

support the commission’s finding and its denial of benefits.” Id. at 615, 681 S.E.2d at 66.

       In direct contrast to the Haley claimant, Smith was not able to climb the step in an

ordinary fashion or without extraordinary exertion—he had to use the grab bar to pull himself up.

I suggest that Haley stands for the general proposition that one factor to consider when

determining whether a condition is specific to a particular employment is whether the condition

forces the employee to engage in an “abnormal exertion.” Id. at 613, 681 S.E.2d at 65. This

atypical exertional element, which was absent in Haley, is present in the instant case and further

refutes a finding that the step was not “unusual.”

       I recognize the great degree of deference that this appellate court affords the

commission’s factual findings, but in the instant case, I do not believe the factual findings are

supported by credible evidence. Not only did Smith testify as to the unusual height of the step,

but he also testified regarding the extra exertion required to climb the step, beyond that necessary

to climb a regular staircase. Accordingly, I would reject a finding that the step was not

“unusual” when determining the issue of causation. See Lanning v. Va. Dep’t of Transp. 37

Va. App. 701, 705, 561 S.E.2d 33, 35 (2002) (citing James v. Capitol Steel Constr. Co., 8

                                                -9-
Va. App. 512, 515, 382 S.E.2d 487, 488 (1989); Ingersoll-Rand Co. v. Musick, 7 Va. App. 684,

688, 376 S.E.2d 814, 817 (1989)).

       When the applicable case law is applied to the unrefuted testimony of Smith, it is clear

that Smith’s injury arose out of employment. Smith directly stated that it was the height of the

step that placed his body in an awkward position, causing him to slip. “[A] rational mind upon

consideration of all the circumstances” would find that “a causal connection between the

conditions under which [Smith’s] work [was] required to be performed and [his] resulting

injury” existed. See Bradshaw, 170 Va. at 335, 196 S.E. at 686 (quoting In re McNicol, 102

N.E. at 697). Therefore, I respectfully dissent.




                                               - 10 -
