                                             Tuesday           23rd

           October, 2001.


S T G, Inc. and
 Travelers Indemnity Company,                               Appellants,

against       Record No. 2664-00-4
              Claim No. 196-57-09

Ivan H. Tooks,                                              Appellee.

                     Upon a Rehearing En Banc

   Before Chief Judge Fitzpatrick, Judges Benton, Elder, Bray,
   Annunziata, Bumgardner, Frank, Humphreys, Clements and Agee


           Amy L. Epstein (Law Offices of Roger S.
           Mackey, on brief), for appellants.

           Andrew S. Kasmer for appellee.


           By unpublished opinion, a divided panel of this Court

reversed the decision of the Workers' Compensation Commission.

S T G, Inc. v. Tooks, No. 2664-00-4 (Va. Ct. App. June 12,

2001).   We stayed the mandate of that decision and granted

rehearing en banc.

           Upon a rehearing en banc, the stay of the June 12,

2001 mandate is lifted, and the order of the commission is

reversed in accordance with the majority panel opinion.

           Chief Judge Fitzpatrick, Judges Benton, Elder and

Annunziata dissent for the reasons set forth in the panel

dissent.
          This order shall be certified to the Virginia Workers'

Compensation Commission.


                           A Copy,

                                Teste:

                                         Cynthia L. McCoy, Clerk

                                By:

                                         Deputy Clerk




                              - 2 -
                   COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Clements
Argued at Alexandria, Virginia


S T G, INC. AND
 TRAVELERS INDEMNITY COMPANY
                                           MEMORANDUM OPINION* BY
v.   Record No. 2664-00-4              JUDGE RUDOLPH BUMGARDNER, III
                                                JUNE 12, 2001
IVAN H. TOOKS


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Amy L. Epstein (Law Offices of Roger S.
           Mackey, on brief), for appellant.

           Andrew S. Kasmer (Chasen & Boscolo, on
           brief), for appellee.


     S T G, Inc. and Travelers Indemnity Company appeal the

Workers' Compensation Commission's award of benefits to Ivan H.

Tooks.   They raise several issues, but we only address the

contention the commission erred in finding the employee's injury

arose out of his employment.   We conclude the commission erred

in that finding and reverse.   Our decision makes it unnecessary

to address the remaining issues.

     The employee was a computer network manager who updated

computer systems for the State Department.    He was receiving

on-the-job training that required him to walk from his second

floor work area to a computer training lab on the first floor.

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.


                               - 3 -
The staircase consisted of two sets of steps divided by a

landing.    The front portion of the stair tread had a vinyl,

crosshatched (skid proof) covering while the back portion was

smooth.    The stairs complied with all codes and regulations.

         The employee carried a three-ring notebook in his right

hand while walking down the steps.       It contained his training

notes and weighed under one or two pounds.      The employee walked

down the first set of steps without incident.      While going down

the second set, he "stumbled and fell" when his "foot got caught

on the step."    The employee missed five steps, landed on his

right ankle, and fell back on the stairs.

     The commission affirmed the deputy's findings that the

employee's injury arose out of the employment. 1     It found the

injury compensable because the employee's foot caught on the

step and the binder he carried prevented him from grabbing onto

the handrail.    "The claimant was carrying a binder in his right


     1
         The deputy concluded the claim was compensable because

             there are added risks, peculiar to the
             claimant's employment, which created a
             hazard of the employment here. First, the
             claimant was carrying a binder in his hands.
             This prevented him from grabbing the
             railing. Had he been able to do so, he may
             well have been able to prevent the fall or,
             at a minimum, lessen the effects of the
             fall. Additionally, his foot caught on the
             rubberized or textured portion of the steps.
             While this is not a defect in the stairs, it
             is not necessarily a condition to which the
             claimant may be equally exposed outside his
             employment.

                                 - 4 -
hand, which prevented him from grabbing on to the railing when

he fell.   Additionally, his foot got stuck or caught in the

rubberized or textured part of the steps."     One member dissented

because the claimant's statement that his "foot got caught was

impeached."

     Whether an accident arises out of the employment is a mixed

question of law and fact reviewable on appeal.      Mullins v.

Westmoreland Coal Co., 10 Va. App. 304, 307, 391 S.E.2d 609, 611

(1990).    An employee's claim is compensable if he establishes

either that the stairs were defective or that there was a causal

connection between the way in which the work is required to be

performed and the resulting injury.      County of Buchanan Sch. Bd.

v. Horton, 35 Va. App. 26, 29, 542 S.E.2d 783, 784-85 (2001);

Southside Virginia Training Ctr. v. Shell, 20 Va. App. 199, 203,

455 S.E.2d 761, 763 (1995).

     In Horton, the commission awarded the employee benefits for

an injury resulting from a fall while attempting to descend some

steps because her heel caught.    While the commission found no

defect in the step upon which the employee fell, it awarded

benefits because a condition of the employment caused the

injury.    We reversed the commission's finding because there was

no evidence that a condition of the employment caused the

employee's fall.

     In Shell, the employee injured herself when she fell down

stairs at work and was awarded benefits.     She testified there

                                 - 5 -
was nothing unusual about the steps, they were well lit, and did

not contain any debris.   We reversed the commission's finding

that the fall arose out of the employment because the steps were

not defective and there was no evidence the fall resulted from a

particular risk of the employment such as being hurried or

distracted.

     In this case, the employee did not see any debris or

foreign objects and thought the steps were pretty clean.     He

could recall nothing wrong with the steps.   At one point he

suggested the height of the steps may have caused the fall but

could not state if they were steeper than normal.   The employee

noted that the second set of steps was darker than the first but

was unsure if that affected his fall.   He traversed the steps

twenty times a day without prior incident.

     The employee presented no evidence of a defect in the

steps.   His early explanations exclude any claims of defect in

the steps or the maintenance of them.   At the hearing, he first

mentioned his foot "caught" on the textured portion of the

steps.   However, his statement only describes the step.   Nothing

in that statement suggests a defect or condition that would

cause a fall; nothing in the other evidence suggests it either.

As in Horton, the deputy found that the rubberized or textured

portion of the steps was not a defect in the stairs.   The

commission made no finding that the steps were defective.



                               - 6 -
     While the employee claims that the textured vinyl stairs

was a condition that caused his fall, his testimony only stated

his foot "caught" on the textured portion of the step.    That

testimony does no more than prove that he fell while traversing

the steps.   Nothing supports the deputy's finding that "it is

not necessarily a condition to which the claimant may be equally

exposed outside his employment."   The record contains no

photographs, diagrams, or samples from which to draw that

inference by inspection.    The decision by the commission is not

based on finding that the step was defective or any facts that

support such a finding.

     The commission also rests it decision on the fact the

employee was carrying a binder that prevented his grabbing the

railing as he fell.   Under the actual risk test, the employee

must establish that he was at greater risk of injury as a result

of his employment than the general public.     Olsten v. Leftwich,

230 Va. 317, 319, 336 S.E.2d 893, 894 (1985).    In order to

prevail, the employee must prove a causal connection between the

manner in which the employer required the work to be performed

and the resulting injury.

     The employee claimed carrying a binder was a condition of

the workplace that caused his fall.     He testified on re-direct

examination, "when I was falling, I was on the right side of the

stairs.   I couldn't reach the left side of the handrail to stop

myself and being that my right hand was already full with the

                                - 7 -
binder, I couldn't grab the right rail, so I fell."    No evidence

indicated how carrying the binder of training notes created a

danger peculiar to the workplace.   Nothing inherent in the act

of negotiating steps while carrying the binder, which weighed no

more than two pounds, permitted that finding.

     In Marion Corr. Treatment Ctr. v. Henderson, 20 Va. App.

477, 458 S.E.2d 301 (1995), we affirmed a finding that the

employee's injury arose out of his employment as a prison guard.

The employee fell down steps while looking at a guard tower.

His duties required him to receive an acknowledgement signal

from the tower guards.    The employee had to observe the towers

rather than the steps he was traversing.   "The way in which he

performed this aspect of his job increased his risk of falling

on this occasion and directly contributed to cause his fall and

injury."   Id. at 480-81, 458 S.E.2d at 303 (citation omitted).

In this case, no evidence suggested that carrying the binder was

a risk greater than that faced by the general public.

     Additionally, the employee's own evidence contradicts his

contention that carrying the binder caused his fall.    When

specifically asked if the binder caused him to fall, the

employee replied, "No, it did not cause my fall, no."   As in

Shell, the employee's "case can rise no higher than [his] own

uncontradicted testimony."   20 Va. App. at 203, 455 S.E.2d at

763 (citation omitted).



                                - 8 -
     The limited evidence supported neither a finding that the

steps were defective nor a finding that the conditions of

employment caused the accident.   Accordingly, the commission

erred in concluding the injury arose out of the employment.

Accordingly, we reverse the decision.

                                                         Reversed.




                              - 9 -
Annunziata, J., dissenting.

     I respectfully dissent from the majority opinion reversing

the commission's decision.      Appellant asserts claimant failed to

prove his injury "arose out of" his employment.     "Whether an

accident arises out of employment is a mixed question of law and

fact . . . ."   Mullins v. Westmoreland Coal Co., 10 Va. App.

304, 307, 391 S.E.2d 609, 611 (1990).     It is well established

that, upon review, this Court construes the evidence before the

commission in the light most favorable to the party prevailing

below.   See Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.

App. 503, 504, 339 S.E.2d 916, 916 (1986).     Furthermore, factual

findings by the commission that are supported by credible

evidence are conclusive and binding upon this Court.      Rose v.

Red's Hitch & Trailer Serv., Inc., 11 Va. App. 55, 60, 396

S.E.2d 392, 395 (1990).   "In determining whether credible

evidence exists, [this Court will] not retry the facts, reweigh

the preponderance of the evidence, or make its own determination

of the credibility of the witnesses."      Wagner Enterprises, Inc.

v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).        The

fact that there is contrary evidence in the record is of no

consequence if there is credible evidence to support the

commission's findings.    Id.    In the instant case, the deputy

commissioner found the injury arose from Tooks's employment

based on the following findings of fact:



                                 - 10 -
           We find that there are added risks, peculiar
           to the claimant's employment, which created
           a hazard of the employment here. First, the
           claimant was carrying a binder in his hands.
           This prevented him from grabbing the
           railing. Had he been able to do so, he may
           well have been able to prevent the fall or,
           at a minimum, lessen the effects of the
           fall. Additionally, his foot caught on the
           rubberized or textured portion of the steps.

The full commission affirmed these findings and the conclusions

of law.   Applying the requisite standard of review, I would

affirm the commission's decision.

     To be sure, neither the deputy nor the full commission

found the steps were defective.   Evidence of defect, however, is

not a prerequisite to an award where evidence in the record

supports the conclusion that a condition of employment, such as

something unusual about a step, is causally related to the

injury.   County of Chesterfield v. Johnson, 237 Va. 180, 186,

376 S.E.2d 73, 76 (1989) (finding there was "nothing unusual

about or wrong with the steps" in question); see also Southside

Virginia Training Center v. Shell, 20 Va. App. 199, 201-02, 455

S.E.2d 761, 762 (1995).   In Shell, we reversed an award on the

ground that "nothing in the record shows an abnormality in

either the angle of the rise or the dimensions of the tread or

carriage[,] a handrail is attached," and the claimant testified

"the area was well lit, . . . no foreign substance on the steps

caused her fall, and [] there was nothing unusual about the

steps."   Shell, 20 Va. App. at 201-02, 455 S.E.2d at 762; see


                              - 11 -
also County of Buchanan School Board v. Horton, 35 Va. 26, 31,

542 S.E.2d 783, 785 (2001) (claimant failed to prove step was

defective or a condition of her employment caused the fall).

The overarching principle which governs in such a case was

stated by the Virginia Supreme Court in Lipsey v. Case, 248 Va.

59, 445 S.E.2d 105 (1994):   "an accident arises out of the

employment when it is apparent to a rational mind, under all

attending circumstances, that a causal connection exists between

the conditions under which the work is required to be performed

and the resulting injury."   Id. at 61, 445 S.E.2d at 107; see

Johnson, 237 Va. at 183, 376 S.E.2d at 75; Marketing Profiles,

Inc. v. Hill, 17 Va. App. 431, 434, 437 S.E.2d 727, 729 (1993).

     Accordingly, I would affirm the commission's decision to

award claimant benefits in this case.   See Wagner Enterprises,

12 Va. App. at 894, 407 S.E.2d at 35; Rose, 11 Va. App. at 60,

396 S.E.2d at 345; see also Southern Motor Lines Co. v. Alvis,

200 Va. 168, 170-71, 104 S.E.2d 735, 737 (1958) ("[T]he phrase,

'arising out of' the employment should receive a liberal

construction to effectuate the humane and beneficent purposes of

the Act.").




                              - 12 -
