Computer Sciences Corp. v. Emma J. Baughman ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
COMPUTER SCIENCES CORPORATION AND
INSURANCE COMPANY OF THE STATE
OF PENNSYLVANIA MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
v. Record No. 0528-96-4 NOVEMBER 5, 1996
EMMA J. BAUGHMAN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Susan A. Evans (Siciliano, Ellis, Dyer &
Boccarosse, on briefs), for appellants.
Charles W. O'Donnell (Peter M. Sweeny &
Associates, P.C., on brief), for appellee.
Claimant, Emma J. Baughman, filed an application with the
commission alleging a compensable injury by accident arising out
of and in the course of her employment with employer, Computer
Sciences Corporation. Following a hearing, the deputy
commissioner found claimant had failed to prove her injury "arose
out of" her employment and denied benefits. The full commission
reversed and entered an award in favor of claimant. Employer
appeals.
I.
The parties stipulated that on December 22, 1994 claimant
slipped and fell in the course of her employment and, as a
result, received emergency room and follow up medical treatment.
The parties further stipulated that claimant was disabled during
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the period December 23, 1994 through January 2, 1995.
Claimant testified that she was in overall good health on
December 22, 1994 and that she had never suffered from epilepsy,
black outs, dizziness, or unexplained falls. On December 14,
1994, claimant underwent arthroscopic surgery on her left knee.
Prior to the surgery, claimant's knee condition had not caused
her to fall. Following the surgery, claimant's physician, Dr.
Michael A. Kavanagh, directed her to use crutches until she felt
comfortable walking without them. On December 17, claimant went
to the emergency room after a day of shopping because her knee
had swollen and was very bruised. Claimant continued to walk
with a crutch until December 22.
The morning of December 22, claimant reported to work shod
in "flats" and without her crutch. Claimant had no difficulty
walking across the lobby's shiny, marble floor as she proceeded
to her office that morning. Later, claimant left the building
during a mid-morning break. When she returned inside, claimant
again walked through the lobby. This time, however, she "came to
[a] spot on the floor and [her right] foot slid and [she] did a
split," which caused her to fall and hit her left knee on the
ground. Claimant landed where she had slipped and rolled onto
her left side. Claimant testified that she had been walking
slowly across the floor because she was still limping from her
knee surgery.
With respect to the cause of her fall, claimant testified as
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follows:
Direct Examination:
Q: Okay. Why did your right foot slip out?
A: I stepped on something slippery. I
don't know what it was, but I definitely--it
was something there.
* * * * * * *
Q: Okay. Do you know exactly what the
substance was that you slipped on?
A: I don't know the chemical composition of
it, but there was something there.
Q: There was definitely something on the
floor?
A: There was something on the floor because
I was walking along fine and I hadn't had any
problem and my foot just slipped.
* * * * * * *
Cross-Examination:
Q: Ma'am, you don't know what made you fall
that day; do you?
A: I don't know what the substance was, but
there was definitely something on that floor.
* * * * * * *
Q: Okay. And, when you told the doctor
that you thought you slipped in water, that
was just a guess, you don't know if there was
water on the floor; is that correct?
A: I don't know if it was water, or if it
was a piece of leaf, or if it was a piece of
paper, or what it was. I don't know the
chemical substance. But all I know is my
foot slipped. And it slid out. . . .
Q: So, basically it's your testimony that
you don't know why your foot slipped but
because it slipped there must have been
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something there that it slipped on?
A: There was something on that floor. Yes.
* * * * * * *
Re-Direct Examination:
Q: Did--were you able to--did the spot
where you fell, did it feel different to you?
A: Yes. . . .
Q: Could you explain to the Deputy
Commissioner what the difference was from
when you walked across the floor in the
morning to what it was when you fell?
A: Well, when I walked across it in the
morning I didn't have, you know, it was dry,
you know.
Q: Okay.
A: And when I fell my foot just slid. So,
you know, there was something there that I
slid on, my foot slid on.
* * * * * * *
Carol Gay, who was walking behind claimant at the time of
the incident, stated she witnessed claimant's right foot slide
forward and claimant fall. Gay stayed with claimant until the
paramedics arrived. During that time, Gay rolled up her coat and
placed it under claimant's neck. She spoke with claimant and
focused on keeping her calm while claimant lay on the floor.
Claimant did not see any water on the floor but testified
that she was in too much pain to take notice. Gay also did not
see any foreign substance on the floor where claimant fell, but
she acknowledged that she did not examine the sole of claimant's
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shoe or attempt to determine whether her clothes were wet.
According to Gay, claimant told the paramedics she had slipped in
some water. The record shows it was neither snowing nor raining
the day of the accident.
The paramedics' report states that claimant lost her
"footing on [a] slippery floor." The medical record from the
emergency room to which claimant was taken states that claimant
"slipped on H2O." Dr. Kavanagh's office note relates that
claimant fell "in some water."
The deputy commissioner found no evidence showing any defect
in the floor, any substance on the floor, or anything else
unusual about the floor on which claimant slipped and fell.
Therefore, the deputy commissioner concluded claimant's fall and
injury did not arise out of her employment and denied benefits.
The full commission reversed. Although it noted that
claimant did not see a foreign substance on the floor, the
commission agreed with claimant's conclusion that she slipped on
a foreign substance. The commission considered that claimant had
"consistently insisted that there was a wet substance that caused
the slip" and found that identification of a particular substance
is not necessary where it reasonably can be inferred that some
substance existed and caused the slip and fall. The commission
inferred from the evidence of claimant's foot slipping forward in
the manner described that a foreign substance on claimant's shoe
or on the floor caused her to fall. The commission placed little
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weight on the failure of claimant and Gay to identify a causative
agent, finding that they were "understandably" distracted by
claimant's injury. Thus, the commission concluded claimant's
fall arose out of her employment and entered an award in
claimant's behalf.
II.
On appeal, we address whether the commission erred in
finding claimant's slip and fall "arose out of" her employment.
"To prove [this] element, [claimant] must show that a condition
of the workplace either caused or contributed to her fall."
Southside Va. Training Center v. Shell, 20 Va. App. 199, 202, 455
S.E.2d 761, 763 (1995). The commission's decision that
claimant's accident "arose out of" her employment "involves a
mixed question of law and fact and is thus reviewable on appeal."
PYA/Monarch and Reliance Ins. Co. v. Harris, 22 Va. App. 215,
221, 468 S.E.2d 688, 691 (1996). Disposition of the present
case, however, turns on a pure question of fact: whether
something on the floor caused claimant to slip. Once that
question is answered, resolution of the legal issue, whether the
fall arose out of employment, is not contested.
On review, we construe the evidence in the light most
favorable to claimant, the prevailing party below. See Crisp v.
Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339
S.E.2d 916, 916 (1986). We are bound by the commission's factual
finding if it is supported by credible evidence, even though
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evidence in the record may support a contrary finding. Morris v.
Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348
S.E.2d 876, 877 (1986). In light of these principles, we affirm
the commission's decision.
The commission's finding that claimant slipped on a foreign
substance on the lobby floor causing her to fall is supported by
credible evidence. Although claimant was unable to identify the
substance upon which she slipped, she testified unequivocally
that she slipped on a foreign substance on the floor. As the
commission also found, "[t]he claimant . . . consistently
insisted that there was a wet substance that caused the slip."
Furthermore, she relayed her sensory perception that a foreign
substance was present on the floor nearly immediately, while in
great pain, to the paramedics, later at the emergency room, again
to her own physician and ultimately, unequivocally at the hearing
before the deputy commissioner. This unrefuted testimony is
credible evidence, supporting the commission's award. This
testimony was unrebutted and corroborated by the circumstances
and nature of her fall. Contrary to employer's argument, we find
Shell unpersuasive. In Shell, the claimant admitted that no
foreign substance caused her fall. 20 Va. App. at 202, 455
S.E.2d at 762.
We disagree with employer's contention that the commission
concluded that claimant slipped on a foreign substance merely
from the fact that she slipped. In support of this argument,
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employer cites the following language from the commission's
opinion: "She did not see any foreign substance, but concludes it
was there merely from the fact that she slipped. We agree."
While the cited portion of the commission's opinion,
standing alone, arguably supports employer's contention, when the
statement is viewed in the context of the complete opinion, it is
clear the commission's agreement was with claimant's perception
that a foreign substance was on the floor and that she only
realized its presence at the moment she actually slipped on it.
The record shows that claimant's testimony addresses the moment
she became aware of the foreign substance; that moment coincided
with her slip. More importantly, her perception that a foreign
substance was present on the floor was based on evidence that, as
she took a step, she put her foot down at a spot on the floor
that felt different to her than the floor felt under her previous
steps. Her foot then slid forward, causing her to fall. In
short, claimant had to slip to know there was something slippery.
This is not the same as saying she inferred there was something
slippery merely because she slipped.
We also disagree with employer's contention that the
commission's decision is open to the conclusion that claimant
slipped on a substance that she carried into the building from
outdoors, on the bottom of her shoe. While the commission
inferred from the evidence of claimant's foot sliding forward
that she slipped on a foreign substance either on her shoe or on
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the floor, this is not a finding by the commission that it was
equally likely that a substance brought into the building on
claimant's shoe caused her fall. Rather, the evidence supports
the commission's inference that the foreign substance existed
inside the building from the evidence that her foot slid forward
after walking some distance from the entry through the lobby and
from claimant's unequivocal testimony that the substance was on
the lobby floor.
Finally, contrary to employer's assertion, the finding that
claimant slipped on a substance, albeit an unidentifiable one,
satisfies the actual risk test, which "`requires only that the
employment expose the workman to a particular danger from which
he was injured, notwithstanding the exposure of the public
generally to like risks.'" Marion Correction Center v.
Henderson, 20 Va. App. 477, 480, 458 S.E.2d 301, 303 (1995)
(quoting Olsten v. Leftwich, 230 Va. 317, 319, 336 S.E.2d 893,
894 (1985)). The "positional risk" doctrine, which has been
rejected in Virginia, has no bearing on our conclusion in this
case. See id. The "positional risk" doctrine is used "to allow
recovery in unexplained fall cases." Harris, 22 Va. App. at 224
n.2, 468 S.E.2d at 692 n.2. However, claimant's fall was not
"unexplained." See Pinkerton's, Inc. v. Helmes, 242 Va. 378,
381, 410 S.E.2d 646, 648 (1991) ("Every unexplained accident, by
definition, means that no one can relate how the accident
happened"). Both claimant and Gay testified that claimant fell
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as a result of her right foot slipping forward; claimant
testified that something on the floor caused her to slip; Gay
could neither confirm nor deny the existence of such a substance
but corroborated claimant's description of the accident. Cf.
Pinkerton's, 242 Va. at 379, 410 S.E.2d at 647 (claimant unable
to recall any facts regarding accident; no witnesses to
accident); Harris, 22 Va. App. at 219, 468 S.E.2d at 690
(claimant remembered only reaching for grab bar from cab of truck
and waking later on ground; no witnesses to accident); Memorial
Hospital v. Hairston, 2 Va. App. 677, 679, 347 S.E.2d 527, 527
(1986) (no evidence that condition of floor caused claimant to
fall).
Accordingly, we affirm the decision of the commission.
Affirmed.
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