                                            COURT OF APPEALS OF VIRGINIA


            Present: Judges Frank, Huff and Senior Judge Coleman
PUBLISHED


            Argued at Richmond, Virginia


            CHRISTOPHER ALEXANDER SNYDER
                                                                                              OPINION BY
            v.      Record No. 0187-13-2                                                  JUDGE GLEN A. HUFF
                                                                                            OCTOBER 15, 2013
            CITY OF RICHMOND POLICE DEPARTMENT


                         FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                            Malcom Parks (Maloney, Parks & Clarke, P.C., on brief), for
                            appellant.

                            (Laura K. Drewry, Senior Assistant City Attorney; Office of the
                            Richmond City Attorney, on brief), for appellee. Appellee submitting
                            on brief.


                    Christopher Alexander Snyder (“appellant”) appeals a decision of the Virginia Workers’

            Compensation Commission (“commission”) holding that appellant’s injury did not arise out of

            his employment with the City of Richmond Police Department (“employer”) and thus was not a

            compensable injury. On appeal, appellant contends that the “Commission erred in finding

            that . . . [his] accidental fall and his right leg injury did not arise out of a risk of his

            employment.” For the following reasons, this Court affirms the commission’s holding.

                                                      I. BACKGROUND

                    “On appeal from a decision of the Workers’ Compensation Commission, the evidence

            and all reasonable inferences that may be drawn from that evidence are viewed in the light most

            favorable to the party prevailing below.” Artis v. Ottenberg’s Bakers, Inc., 45 Va. App. 72, 83,

            608 S.E.2d 512, 517 (2005) (en banc) (citing Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72,
577 S.E.2d 538, 539 (2003); Tomes v. James City (County of) Fire, 39 Va. App. 424, 429, 573

S.E.2d 312, 315 (2002)). So viewed, the evidence is as follows.

       Appellant was a police officer with the Special Operations Division (City Traffic Unit)

for the City of Richmond at the fourth precinct office on Chamberlayne Avenue. On July 4,

2011, appellant was scheduled to work during a holiday fireworks event. Although the event did

not begin until 7:00 p.m., appellant was required to report to the precinct at 12:30 p.m. His

standard procedure before beginning a shift was to enter the precinct in his personal vehicle, park

in the employee lot, and go inside the building to check in with his sergeant. After being cleared

to begin duty, appellant would then go outside to his patrol vehicle, check the vehicle, turn on the

vehicle’s laptop, and leave for his assignment.

       On the day in question, appellant arrived at approximately 12:10 p.m. and parked his

personal vehicle toward the back of the employee lot, which was accessible by using a card

issued by the police department. Neither the general public nor officers from other precincts

were allowed or able to park there. Appellant also indicated that he was expected to park in the

lot for security purposes, as the fourth precinct was located in a high-crime area. The customary

entrance to the building was a door located to one side with a stairwell nearby and a short brick

retaining wall just beyond the stairs. Appellant regularly jumped on and over the retaining wall

to enter the building, stating that doing so helped him exercise his legs. Although appellant was

required to maintain good physical fitness as a condition of his employment, employer did not

require him to go over the retaining wall in order to enter the building.

       As he walked through the parking lot toward the building, appellant carried his duty belt

over his shoulder instead of wearing it around his waist. The belt held two sets of handcuffs, a

radio, a steel retractable baton, a flashlight, a pistol, and two extra magazines, and weighed about

ten pounds. While walking through the lot, appellant saw a colleague, Officer Kitt, and they

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began speaking. Appellant complained that he was unhappy he had to report to work at

12:30 p.m. when the fireworks event did not begin until later that evening, especially given that

he was not normally scheduled to work on that day. Appellant further complained that he would

rather be spending time at home with his family, as his wife recently had surgery and was still

fairly immobilized.

       As they were talking, appellant continued walking and his right foot clipped a cement

parking block that was secured to the ground approximately eighteen inches from the brick

retaining wall. The following photograph of the parking block and retaining wall were admitted

into evidence.




Appellant fell forward, striking the edge of the brick retaining wall with his right knee and

rolling over the wall onto a sidewalk. As a result of the fall, he suffered a contusion to his right

knee and a ligament tear which ultimately required corrective surgery. Appellant sought

temporary total disability benefits for the period of July 5, 2011 to October 2, 2011, and

continuing temporary partial disability benefits. Prior to a hearing on appellant’s workers’

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compensation claim, the parties stipulated that appellant’s injury occurred from the fall in

question and that appellant’s alleged period of disability was accurate.

       At a hearing before the deputy commissioner on October 13, 2011, appellant testified that

he fell because “my attention was diverted to . . . Kitt.” He admitted that there was nothing

unique or irregular about the parking block, but indicated that the short distance between the

parking block and the retaining wall was strange because the block would not actually prevent a

vehicle from hitting the retaining wall. He also stated that other parking blocks in the same lot

were placed farther away from the retaining wall and that if the wall were not so close, he would

have been able to prevent himself from falling. Appellant further testified that the fact that he

was carrying his duty belt over his shoulder affected the way he fell because he was trying to

protect the loaded pistol from accidentally discharging.

       The deputy commissioner denied appellant’s claim for benefits on the ground that

appellant’s injury did not arise out of a risk of employment. The full commission affirmed in a

divided opinion, finding that the injury was not sufficiently causally related to the conditions

under which employer required appellant’s work to be done. Specifically, the commission

rejected appellant’s arguments that the configuration of the parking block was unique, that the

conversation with Kitt was work-related, and that the duty belt affected the severity of his fall.

This appeal followed.

                                  II. STANDARD OF REVIEW

       “Whether an injury arises out of and in the course of employment involves a mixed

question of law and fact, which we review de novo on appeal.” Blaustein v. Mitre Corp., 36

Va. App. 344, 348, 550 S.E.2d 336, 338 (2001) (citing Norfolk Community Hosp. v. Smith, 33

Va. App. 1, 4, 531 S.E.2d 576, 578 (2000)). “Accordingly, although we are bound by the

commission’s underlying factual findings if those findings are supported by credible

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evidence, . . . we review de novo the commission’s ultimate determination as to whether the

injury arose out of the claimant’s employment.” Stillwell v. Lewis Tree Serv., 47 Va. App. 471,

477, 624 S.E.2d 681, 683 (2006).

                                         III. ANALYSIS

       On appeal, appellant contends that the commission erred in finding that his injury did not

arise out of a risk of his employment. Specifically, appellant asserts that he was speaking with

Kitt about work-related matters when the injury occurred and that the cement parking block was

irregularly situated on the ground. Responding, employer argues that appellant was merely

“complaining about having to come to work” and that the parking block contained no defects

that would make its physical arrangement “unique” from other parking blocks.

       “For an injury to be compensable under the Workers’ Compensation Act [(“Act”)], the

claimant must prove by a preponderance of the evidence three elements: (1) that the injury was

caused by an accident; (2) that the injury was sustained in the course of the employment; and

(3) that the injury arose out of the employment.” Southland Corp. v. Parson, 1 Va. App. 281,

283-84, 338 S.E.2d 162, 163 (1985). In the present case, the parties agree that an accident

occurred and that the resulting injury was sustained in the course of appellant’s employment.

Moreover, we hold that the fact findings of the commission were supported by credible evidence.

       In determining whether appellant’s accidental injury arose out of his employment,

Virginia adheres to the “actual risk” doctrine. That test “‘excludes an injury which comes from a

hazard to which the employee would have been equally exposed apart from the employment.’”

Bernardo v. Carlson Cos. – TGIF, 60 Va. App. 400, 405, 728 S.E.2d 508, 511 (2012) (quoting

Taylor v. Mobil Corp., 248 Va. 101, 107, 444 S.E.2d 705, 708 (1994)). Thus, “[a]n ‘actual risk

of employment’ is ‘not merely the risk of being injured while at work.’” Id. (quoting Taylor, 248

Va. at 107, 444 S.E.2d at 708). Rather, “[u]nder the actual risk test, an injury comes within the

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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.’” Simms v. Ruby Tuesday, Inc., 281 Va. 114,

122, 704 S.E.2d 359, 363 (2011) (quoting Hilton v. Martin, 275 Va. 176, 180, 654 S.E.2d 572,

574 (2008)).

               “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 [the applicable test] 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 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.”

Id. at 122-23, 704 S.E.2d at 363 (alteration in original) (quoting Bradshaw v. Aronovitch,

170 Va. 329, 335, 196 S.E. 684, 686 (1938)). Lastly, distractions that cause the injury may be

compensable if they are not “‘unrelated to any hazard common to the workplace.’” Marion Corr.

Treatment Ctr. v. Henderson, 20 Va. App. 477, 480, 458 S.E.2d 301, 303 (1995) (quoting United

Parcel Service v. Fetterman, 230 Va. 257, 259, 336 S.E.2d 892, 893 (1985)) (holding that

because appellant’s job responsibilities included watching tower guards rather than steps, his

injury caused by missing a step while watching tower guards did arise out of his employment).

       Applying the actual risk test to these circumstances, this Court holds that appellant’s

injury did not arise out of his employment. At the time of the accident, appellant was

complaining to Kitt that he did not want to report to work at 12:30 p.m. when the fireworks event

did not start until nightfall. Appellant’s risk of tripping over a curb in the parking lot was not

caused by his employment but rather presented an equal risk to any person walking inattentively

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in the parking lot. Moreover, the distraction that caused appellant’s injury is not linked to any of

his job responsibilities as was the case in Henderson. Furthermore, appellant admitted that the

physical arrangement of the cement parking block was neither unique nor irregular; he merely

stated that its proximity to the brick retaining wall was strange. The mere fact that the parking

block was located at the workplace, in absence of other factors, did not create a causal

relationship between appellant’s fall and the conditions of his employment. Lastly, the position

of appellant’s duty belt at the time of the fall was not the origin of the injury; to be compensable

an injury “must appear to have had its origin in a risk connected with the employment.” Simms,

281 Va. at 123, 704 S.E.2d at 363. Thus, this Court holds that the commission did not err in

concluding that appellant’s injury did not arise out of his employment.

                                       IV. CONCLUSION

       For the foregoing reasons, this Court holds that the commission did not err in holding that

appellant’s injury did not arise out of a risk of his employment. Accordingly, this Court affirms

the commission’s holding.

                                                                                           Affirmed.




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