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					VIRGINIA:                                                                         08/10/2001

                                         Settled Pending Appeal

                                                                             Opinion by DUDLEY
v.                        VWC File No. 200-29-06


Deborah W. Dobbins, Esquire
Gilmer, Sadler, Ingram, Sutherland and Hutton, L.L.P.
P.O. Box 878
Pulaski, VA 24301
for the Claimant.1

Michael F. Blair, Esquire
Penn, Stuart and Eskridge
P.O. Box 2288
Abingdon, VA 24212-2288
for the Defendants.

     REVIEW on the record by Commissioner Tarr, Commissioner Diamond, and
Commissioner Dudley at Richmond, Virginia.

        The employer has requested Review of the Deputy Commissioner’s October 27, 2000,

Opinion awarding temporary total disability benefits, temporary partial disability benefits, and

medical benefits to the claimant. The employer assigns error to the finding that the claimant

sustained an injury by accident arising out of her employment. We reverse.

        The claimant alleged a right knee injury by accident occurring on March 1, 2000. She

testified that:

            The claimant was pro se at the Hearing.
                                                                              VWC File No. 200-29-06

                I started to go down to the stairs. I had my hand on the bannister
                [sic] and I slipped down with my right foot . . . And was stepping
                down or in the process, I suppose, of going onto the second stair
                and the next thing I know, I was falling. (Tr. at 4-5)

The claimant said that a flat, indoor/outdoor-type carpet covered the steps. She explained that she

placed her right foot on the first step to descend the stairs and then fell going to the next.

        Sometime after the accident, the claimant measured the stairs. She said that the first step

drops six and one-half inches and angles to the right and down. The claimant stated that the second

step drops seven and one-fourth inches and also angles down. She asserted that the building’s entire

second floor was not level and was angled to the right. The claimant believed that the stairs were

defective and suggested that they were structurally impaired. She “suspect[ed] very strongly that

the step caused [her] to fall.” (Tr. at 21).

        The claimant admitted that when she gave her recorded statement to the insurer’s

representative on April 21, 2000, she did not identify a defect in the stairs. During this statement,

she denied that there was a problem with the carpet or that she was in a hurry. The claimant said that

her foot did not slip. She explained that she stepped down with her right foot firmly on the step, and

then suddenly, she was falling.

        The Deputy Commissioner determined that the claimant proved a defect in the step and

awarded benefits. We disagree.

        The cause of the claimant’s injury must be a risk connected with the employment. The risk

is “not merely the risk of being injured while at work.” Taylor v. Mobil Corporation, 248 Va. 101,

                                                                           VWC File No. 200-29-06

107, 444 S.E.2d 705, 708 (1994).        The claimant must show that her employment actually

contributed to her injury:

                An accident arises out of the employment where there is a causal
                connection between the claimant's injury and the condition under
                which the employer requires the work to be performed. . . . [It
                excludes] an injury which comes from a hazard to which the
                employee would have been exposed apart from the employment.

County of Chesterfield v. Johnson, 237 Va. 180, 183-184, 376 S.E.2d 73, 75 (1989) (citations


        An injury does not arise out of the employment if the employee injures herself while

descending a staircase with no defect in the step, with normal height of steps, and with no other

condition of the employment causing the injury.            See Nottoway Correctional Center v.

Thompson, No. 1469-94-2 (Va. Ct. App., April 11, 1995) (unpublished).                   In Miller and

Long Company v. Blake, No. 0939-99-4 (Va. Ct. App., June 27, 2000) (unpublished), the

Virginia Court of Appeals reversed the Commission's finding that the employee's injury arose

out of his employment. The Court of Appeals noted that:

                [T]he evidence established no defect in the stairs and no condition
                peculiar to claimant's employment that caused his injury. Claimant's
                testimony was that he simply pivoted on his right knee to make a turn
                to ascend the fifth flight of steps, . . .

        Here, the claimant has not established that her injury arose out of her employment. Even if

we assume, for the sake of argument, that the step was defective, she did not testify that the alleged

defect caused her fall. The claimant stated that she strongly suspected that the step caused her to

                                                                           VWC File No. 200-29-06

fall. However, when she was asked if, under oath, her answers would be any different from those in

her recorded statement, she said “no.” The claimant stated as follows in her recorded statement:

               [Insurer Rep.]: Ok, Do you remember how you fell? Did your foot
               catch or did you, ah, slide off of the[---]

               [Claimant]: My, No, My foot didn’t move, my foot didn’t slip, I, I, I,
               I jus, I just know that I stepped down and umm it [sic] had my foot
               firmly on the step. I don’t recall anything other than all of a sudden I
               was falling. I was falling. And I made sure that I was falling
               forward umm because I didn’t want to fall backward over the
               banister, umm, and once I realized I was falling, and then fall down
               into the foyer, which would not have been a good thing. Not that it
               was a good thing that I was falling period, but I was in slow motion
               as it was occurring and I was realizing that I was falling. Umm,
               umm, prepared myself forward as opposed to prevent myself from
               falling backwards over the banister.

               [Insurer Rep.]: There was no problem with the carpet that would
               have caused you[---]do you have any idea what would have caused
               you to fall?

               [Claimant]: No I don’t. I wasn’t in a hurry[---]there was nothing out
               of the ordinary that theres [sic] nothing a mess with the carpet, my
               foot didn’t slip, I remember falling forward and umm being
               conscience [sic] that I wanted to move forward and not you know
               lose my balance backwards over the banister.

               (Rec. St. at 3)

The claimant’s assumption that the alleged defect caused her to fall is speculative, and it is

inconsistent with her testimony that the recorded statement is accurate. In addition, she confirmed

that the carpet was not a problem and that no foreign substance was on the step. The claimant was

not carrying anything, was not distracted, and was not in a rush.

                                                                          VWC File No. 200-29-06

        The evidence merely shows that the claimant slipped while stepping from the first step. It

does not show that any alleged defect in the step was a cause of the fall. To be compensable, the

injury must be caused by a particular risk related to the employment. The fall at issue resulted from

a hazard to which the claimant would have been equally exposed outside of her employment.

        Accordingly, the Opinion below is REVERSED, and the award is set aside.

        This matter is hereby removed from the Review docket.


        I respectfully dissent and would affirm the deputy commissioner's finding that the fact that

the stairs were uneven, slanted, and of uneven height constitute a structural defect to which the

claimant credibly attributed her fall.


        This Opinion shall be final unless appealed to the Virginia Court of Appeals within 30 days

of receipt.

cc:     Ms. Sabrina Inez White-Martin
        613 West Old Town Street
        Galax, VA 24333

        Mount Rogers Community Service Board
        770 West Ridge Road
        Wytheville, VA 24382

        Virginia Municipal Group Self-Insurance Association
        VML Insurance Programs
        P.O. Box 5340
        Glen Allen, VA 23058