Super Fresh Food Markets, Inc. v. Wortman ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Alexandria, Virginia
SUPER FRESH FOOD MARKETS, INC./THE
GREAT ATLANTIC AND PACIFIC TEA COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1354-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
FEBRUARY 10, 1998
NANCY L. WORTMAN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
S. Vernon Priddy, III (Sands, Anderson,
Marks & Miller, on brief), for appellant.
William A. Musto (Koonz, McKenney, Johnson,
DePaolis & Lightfoot, on brief), for
appellee.
Super Fresh Food Markets, Inc./The Great Atlantic and
Pacific Tea Company ("employer") appeals from a decision of the
Workers' Compensation Commission ("commission") holding that
Nancy L. Wortman ("claimant") was injured in an accident arising
out of her employment. For the following reasons, we reverse the
decision of the commission.
I.
On September 20, 1995, claimant, who was employed as a
bookkeeper for employer, was walking down a three-step set of
stairs in the office area where she worked when she slipped and
fell. At the time of her accident, claimant was in the process
of handling a Western Union transaction for a customer. As a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
result of her fall, claimant sustained an injury to her ankle.
In describing the accident, claimant stated that she slipped when
the ball of her foot hit the metal edge of the step. 1 At the
time of the accident, claimant was wearing rubber-soled shoes
with "little, if any, tread."
The steps were tile with chrome edges. Claimant testified
that she normally traversed this set of steps numerous times each
day. She stated that she had slipped on the steps previously,
but could not state what caused her to slip on those previous
occasions. Claimant admitted that the step on which she slipped
was not defective and that there was no foreign substance or
debris on the step at the time she fell. She further admitted
that she had never tested the skid resistant quality of the metal
edging, and had never run her hand along the edging to see if it
was slippery.
Safety Engineer Gregory Harrison performed an inspection of
the steps on July 22, 1996. He testified that the steps had a
"safe dimensional design," the edging complied with building code
requirements for slick resistance, and that the metal edges "did
not represent a slippery surface." He described the metal edging
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Claimant testified: "My foot slipped off of the slippery
chrome and I fell to the floor." Employer objected to claimant's
characterization of the chrome as "slippery." The deputy
commissioner ruled that unless claimant "in fact, went back later
and looked at it and can describe what it was that she described
slippery, I'm just going to take it that . . . her foot slipped
off the chrome ledge." Claimant did not thereafter testify that
she inspected the chrome edge after her fall to see if it was,
indeed, slippery.
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as "a square edge as opposed to a rounded or beveled edge."
Regarding the passage of time between the accident and his
inspection of the steps, Harrison testified that, if anything,
wear and tear would cause the steps to be more slippery when he
inspected them.
Claimant presented evidence that others had slipped on this
set of steps, but there was no evidence regarding the conditions
under which these other incidents occurred.
The commission, in reversing the deputy commissioner, found
that claimant proved that her "injury was caused by a risk of her
employment, i.e., the slippery surface at the front edge of the
step which caused her fall." Referring to the photographs of the
step, the commission noted that the metal on the edge of the step
was "smooth" and "slightly rounded." The commission did not
reject Harrison's testimony, but rather found that it was not
dispositive.
II.
"The commission's decision that an accident arises out of
the employment involves a mixed question of law and fact and is
thus reviewable on appeal." Southside Virginia Training Ctr. v.
Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995).
"The claimant ha[s] the burden of establishing, by a
preponderance of the evidence, and not merely by conjecture or
speculation, that she suffered an injury by accident which arose
out of . . . the employment." Central State Hospital v. Wiggers,
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230 Va. 157, 159, 335 S.E.2d 257, 258 (1985). The claimant "must
show that a condition of the workplace either caused or
contributed to her fall." Shell, 20 Va. App. at 202, 455 S.E.2d
at 763. This analysis "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 [claimant] would have been
equally exposed apart from the employment." R & T Investments,
Ltd. v. Johns, 228 Va. 249, 253, 321 S.E.2d 287, 289 (1984).
In Shell, the claimant fell while traversing steps en route
to retrieving a medical file. The commission awarded benefits,
finding that the claimant was unaccustomed to the steps in the
building where she fell and she was hurrying at the time she
fell. Shell, 20 Va. App. at 202, 455 S.E.2d at 763. We prefaced
our analysis in that case noting that "our inquiry must be
whether credible evidence supports a finding that a defect in the
stairs or a condition of [the claimant's] employment caused her
to fall down the steps and injure herself." Id. at 203, 455
S.E.2d at 763 (emphasis added). In reversing the commission, we
noted that there was no evidence that the claimant was being
rushed by her employer to complete her task, and the steps on
which she fell were not defective. Id. at 203-04, 455 S.E.2d at
763. See Memorial Hospital v. Hairston, 2 Va. App. 677, 679, 347
S.E.2d 527, 527 (1986) (finding claimant not entitled to benefits
where, despite claimant's testimony that "my foot slipped and I
lost my balance and fell down," there was no evidence that the
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condition of the surface on which she fell contributed to the
fall). Cf. Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 572, 159
S.E.2d 633, 636 (1968) (finding that claimant's injury arose out
of her employment where the steps on which she was injured were
unusual, "slightly higher than normal").
The uncontroverted evidence was that the step from which
claimant fell was not defective. The commission noted that it
was "uncontested that there was no water, oil, or other slippery
substance on the steps." There was also no evidence that the
accident was caused by claimant being rushed, or as a result of
some other facet of her job responsibilities. Cf. Marion
Correctional Center v. Henderson, 20 Va. App. 477, 480-81, 458
S.E.2d 301, 303 (1995) (finding that correctional officer was
exposed to an increased risk of slipping and falling on steps
because of his "duty to observe the guard towers and provide
security at the facility").
The commission found "claimant's testimony that the smooth,
rounded edge of the metal strip caused her slip and fall" to be
persuasive; however, claimant never testified that her fall was
due to "the smooth, rounded edge of the metal strip." Indeed,
claimant admitted that she never inspected the step to ascertain
whether the metal edge was, in fact, slippery. Accordingly, in
the absence of credible evidence that claimant's accident arose
out of her employment, the ruling of the commission is reversed
and the claim dismissed.
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Reversed and dismissed.
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Annunziata, J., dissenting.
I respectfully dissent from the majority opinion.
As the majority notes, the question of whether claimant's
accident arises out of her employment "involves a mixed question
of law and fact and is thus reviewable on appeal." Southside
Virginia Training Center v. Shell, 20 Va. App. 199, 202, 455
S.E.2d 761, 763 (1995). In addressing a mixed question of law
and fact, however, we must separate the issue of fact from the
issue of law. See Stenrich Group v. Jemmott, 251 Va. 186, 192,
467 S.E.2d 795, 798 (1996). Although we review de novo the
commission's application of law to the facts, "we must defer to
the factual findings of the commission." Roanoke Belt v.
Mroczkowski, 20 Va. App. 60, 68, 455 S.E.2d 267, 271 (1995)
(citing Franklin Mortgage Corp. v. Walker, 6 Va. App. 108,
110-11, 367 S.E.2d 191, 193 (1988) (en banc)).
Findings of the commission with respect to the factual
portion of a mixed question of law and fact "will not be
disturbed on appeal, if based on credible evidence." Roberson v.
Whetsell, 21 Va. App. 268, 270, 463 S.E.2d 681, 682 (1995)
(citing Hercules, Inc. v. Gunther, 13 Va. App. 357, 361, 412
S.E.2d 185, 187 (1991)). On appeal, we review the evidence in
the light most favorable to the party prevailing below. Creedle
Sales Co. v. Edmonds, 24 Va. App. 24, 26, 480 S.E.2d 123, 123
(1997) (citing R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App.
211, 212, 390 S.E.2d 788, 788 (1990)). As an appellate body,
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"[w]e do not retry the facts before the Commission nor do we
review the weight, preponderance of the evidence, or the
credibility of witnesses." Caskey v. Dan River Mills, Inc., 225
Va. 405, 411, 302 S.E.2d 507, 510-11 (1983).
In this case, the commission determined that "claimant's
injury was caused by a risk of her employment, i.e., the slippery
surface at the front edge of the step which caused her fall."
The commission's conclusion that "claimant's injury was caused
by . . . the slippery surface at the front edge of the step" is a
factual question, which we may review only to determine if it is
based on credible evidence. Roberson, 21 Va. App. at 270, 463
S.E.2d at 682 (citing Gunther, 13 Va. App. at 361, 412 S.E.2d at
187).
The record shows that competent, credible evidence supports
the commission's decision. Claimant's testimony regarding the
occurrence specifically identified "the slippery chrome" edging
on the stairs which caused her to slip. Furthermore, she
testified that she had slipped and fallen on the stairs on four
separate occasions prior to the injury sustained in this case.
Her testimony was buttressed by Mary Aldaya, a co-worker of the
claimant who frequently used the same stairs for at least six
months. Aldaya testified that, in using the stairs, her "foot
went off the metal strip . . . . It slipped right off the edge."
She also testified that the store manager, Kyle Wetsel, had
warned her that the stairs were slippery and that she should
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exercise care when using them. Finally, the commission had
before it several photographs that had been admitted into
evidence showing the stairs and the metal edging which claimant
testified caused her to slip, and the rubber-soled shoes claimant
was wearing on the date she fell.
The existence of conflicting testimony before the commission
on causality does not detract from the force of the commission's
findings of fact. Caskey, 225 Va. at 411, 302 S.E.2d at 510-11.
In addition, although the safety engineer who inspected the
steps after the incident stated his opinion that the edging "did
not represent a slippery surface," the commission was free to
accord his testimony whatever weight it felt appropriate, in
light of the other evidence it had before it. Street v. Street,
25 Va. App. 380, 387, 488 S.E.2d 665, 668-69 (1997) (en banc).
The other evidence before the commission included the engineer's
testimony that no portable machine reliably tests the coefficient
of friction and that therefore he based his opinion on a
"qualitative" approach of "feeling" the metal in light of his
knowledge of the "feel" of certain coefficients of friction.
Turning to the legal portion of the mixed question of law
and fact, I would hold that the commission properly applied the
law to the facts. Virginia law, including the cases cited by the
majority, clearly provides that an injury caused by stairs that
are defective in some way arises out of employment. County of
Chesterfield v. Johnson, 237 Va. 180, 186, 376 S.E.2d 73, 76
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(1989); Richmond Memorial Hosp. v. Crane, 222 Va. 283, 286, 278
S.E.2d 877, 879 (1981); Reserve Life Ins. Co. v. Hosey, 208 Va.
568, 569, 572, 159 S.E.2d 633, 634, 636 (1968); Shell, 20 Va.
App. at 203, 455 S.E.2d at 763; Plumb Rite Plumbing Service v.
Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989);
Memorial Hosp. v. Hairston, 2 Va. App. 677, 682, 347 S.E.2d 527,
529 (1986). As the majority recognizes, "our inquiry must be
whether credible evidence supports a finding that a defect in the
stairs . . . caused [claimant] to fall down the steps and injure
herself." Shell, 20 Va. App. at 203, 455 S.E.2d at 763. The
slippery stairs, which caused claimant's fall, constitute a
defect within the meaning of these cases.
For the foregoing reasons, I dissent.
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