Gates Hudson & Assoc., Inc. v. Maria Diaz ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judge Elder and
Senior Judge Duff
Argued at Alexandria, Virginia
GATES HUDSON & ASSOCIATES, INC., ET AL.
MEMORANDUM OPINION** BY
v. Record No. 0683-97-4 JUDGE LARRY G. ELDER
NOVEMBER 25, 1997
MARIA DIAZ
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Dawn E. Boyce (Trichilo, Bancroft, McGavin,
Horvath & Judkins, P.C., on brief), for
appellants.
Craig A. Brown (James F. Green; Ashcraft &
Gerel, on brief), for appellee.
Gates Hudson & Associates, Inc. (appellant) appeals an order
of the Workers' Compensation Commission (commission) awarding
benefits to Maria Diaz (claimant). Appellant contends that the
commission erred when it concluded that claimant's injury arose
out of and in the course of her employment. For the reasons that
follow, we affirm.
"In order to establish entitlement to compensation benefits,
the claimant must prove, by a preponderance of the evidence, an
injury by accident which arose out of and in the course of his
[or her] employment." See Classic Floors, Inc. v. Guy, 9 Va.
App. 90, 95, 383 S.E.2d 761, 764 (1989); Code § 65.2-101. An
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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." Brown v.
Reed, 209 Va. 562, 564, 165 S.E.2d 394, 397 (1969). An accident
occurs "in the course of" the employment "when it takes place
within the period of the employment, at a place where the
employee may be reasonably expected to be, and while he is
reasonably fulfilling the duties of this employment or is doing
something reasonably incident thereto." Id. "A finding by the
[c]ommission that an injury arose out of and in the course of
employment is a mixed question of law and fact and is properly
reviewable on appeal." Dublin Garment Co., Inc. v. Jones, 2 Va.
App. 165, 167, 342 S.E.2d 638, 638 (1986). The commission's
factual findings are binding on appeal if supported by credible
evidence. See Code § 65.2-706.
We hold that claimant's injury arose out of and occurred in
the course of her employment. Claimant was employed as a
custodian and her duties included cleaning the common areas
inside appellant's apartment buildings. On June 25, claimant was
sweeping while walking backwards down some steps inside an
apartment building. The steps were both wet and littered with
"candies and . . . gums." Claimant slipped and fell down a set
of steps and onto a landing, injuring her right arm, shoulder,
and leg. This evidence established both a causal connection
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between claimant's employment and her injury and that the injury
took place while claimant was performing her regular duties.
We disagree with appellant that claimant's failure to
understand her supervisors' instruction not to clean inside the
buildings on June 25 rendered her injury non-compensable.
Appellant does not contend that claimant's claim is barred
because she willfully breached its rules or regulations. See
Code § 65.2-306. On June 25, claimant returned to work after an
absence stemming from a non-work-related injury with a note from
her physician restricting her from lifting weights greater than
five pounds. Claimant's supervisors instructed her about her
duties for the day in light of her physician's restriction. The
commission found that claimant "understood her instructions to
allow her to enter the buildings to the extent that she could
perform work within her restrictions." This finding is supported
by claimant's testimony that she was never told she was
prohibited from entering the buildings and that she understood
Mr. Aragon's Spanish translation of her supervisors' instructions
to be that she "was not to lift any heavy item [and] that [she]
did not have to mop or strip." Although claimant's testimony
conflicted with the testimony of her supervisors, the commission
was entitled to conclude that claimant's testimony was more
credible. See Uninsured Employer's Fund v. Mounts, 24 Va. App.
550, 559, 484 S.E.2d 140, 144 (1997) (stating that "[a]s the
trier of fact, the commission determine[s] . . . the credibility
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of the witness[es]").
Furthermore, the record indicates that claimant was merely
attempting to perform her regular duties within her physician's
restrictions at the time of her accident. Claimant testified
that she decided to clean in the buildings because she noticed
that they were dirty and "felt that she needed to clean them
because they were her buildings." The record indicates that
claimant was sweeping when she fell down the stairs, and this
evidence supports the commission's finding that claimant was not
performing work that "[exceeded] the restrictions which had been
imposed by her doctor." Contrary to appellant's argument,
claimant was not injured after "incurring dangers of [her] own
choosing which [were] altogether outside of any reasonable
requirement of [her] position." Conner v. Bragg, 203 Va. 204,
209, 123 S.E.2d 393, 397 (1962); cf. Jones v. Colonial
Williamsburg Foundation, 10 Va. App. 521, 524, 392 S.E.2d 848,
850 (1990). In light of claimant's understanding of appellant's
instructions and the circumstances of her accident, we conclude
that claimant was injured while performing a task reasonably
incidental to her duties at a place where appellant could
reasonably expect her to be. Brown, 209 Va. at 564, 165 S.E.2d
at 397.
For the foregoing reasons, we affirm the commission's award
of benefits.
Affirmed.
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