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					VIRGINIA:                                                                            12/13/2006
IN THE WORKERS‟ COMPENSATION COMMISSION


WANDA H. PATRICK, Claimant
                                                                              Opinion by DUDLEY
                                                                                     Commissioner
v.                     VWC File No. 225-76-07


K. R. SNEAD TRUCKING, INC., Employer
AMERICAN HOME ASSURANCE COMPANY, Insurer


Ms. Wanda H. Patrick
1071 Peartree Lane
Nathalie, VA 24577
Claimant, Pro Se.

Paul W. Emigholz, Esquire
Sands, Anderson, Marks and Miller
P.O. Box 1998
Richmond, VA 23218-1998
for the Defendants.


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

       The claimant has requested Review of the Deputy Commissioner‟s May l5, 2006, Opinion

denying her claim related to a right ankle injury sustained September 28, 2005. After careful

Review, we reverse.

       The claimant was employed as a truck driver, which included driving a large truck and

trailer, as well as covering and uncovering loads, and shutting the doors to the trailer. The trailer

had a ladder mounted to the side of it, and the cab of the truck, which she had to get in and out of

many times each day, had two steps, the last of which was a significant distance from the ground.

On September 28, 2005, the claimant pulled her truck away from the dump and climbed down

from the cab to shut the doors on the trailer. She testified that:
                                                                          VWC File No. 225-76-07


               I got out---when I was getting out, I stepped on the first step, and I
               went to step on the second step of the truck . . .

               ....

               . . . The second step had like a dent, crack in the step and my foot
               went in it. (Tr. at 6-7)


The claimant stated that: “It slid down on the pavement and I heard my bone pop.” (Tr. at 7).

On cross-examination, the claimant described the defect in the second step as follows: “It was

just a crack that gave in when I stepped on it.” (Tr. at 23). The claimant fell to the ground, but

there was no one around to help her. She said that: “I got up and I started tipping on my foot, on

my toes because my foot was hurting.” (Tr. at 8). The claimant called Sue B. Snead, office

manager, and told Ms. Snead that she thought she had broken her ankle. The claimant stated that

Ms. Snead wanted her to come to the office to fill out paperwork and to bring the truck in. She

called her mother to bring her a brace for her foot, so she could drive the truck back to the office.

       Shirley Woody, the claimant‟s mother, testified that she arrived at the scene of the

accident and provided a foot brace. When asked if she saw the step, Woody stated: “[The

claimant] showed me the step. It‟s like it had a break in it or something.” (Tr. at 32). Woody

further stated: “[I]t had like a soft spot in it and it had broke or something.” (Tr. at 32). On

cross-examination, Woody said: “I knew [the step] was like it may have been damaged or

something like that. It didn‟t look like the top step.” (Tr. at 34).

       The claimant admitted that she did not give a detailed account of the accident to the

employer, but essentially stated that she stepped off the truck and hurt her ankle. However, she

did state that the step caused her to twist her ankle.

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                                                                         VWC File No. 225-76-07


        The claimant sought treatment the same day with Dr. Romulo A. Ancheta, general

surgeon/practitioner. She told Dr. Ancheta that she hurt her ankle stepping down from a tractor-

trailer. His initial office notes reflect swelling on the top of the claimant‟s right foot and

tenderness below the ankle joint. She was sent for x-rays, given crutches, and told to use ice to

control the swelling. Dr. Ancheta diagnosed a right foot sprain and sent the claimant for physical

therapy. He continued to recommend crutches and limited weight-bearing, and finally returned

her to work without restrictions on November 11, 2005.

        Ms. Snead testified that when the claimant filled out the paperwork, she reported that she

slipped on the second step and thought she broke her ankle. Eddie D. Hatcher, shop foreman,

also testified at the Hearing. Hatcher stated that the claimant never complained of any problems

with the step, and that he could find no crack or “give way” in the step when he inspected it after

the accident (Tr. at 49). He did state, however, that: “It‟s a swag in it and you can see it in the

picture. A little swag in that step.” (Tr. at 49). When asked if “swag” meant dent, Hatcher

agreed that it was what he meant (Tr. at 51). He also testified that after the accident, he replaced

the step with a heavier step. Hatcher said: “I figured if somebody could claim that this step done

that, I‟d put a bigger one on it.” (Tr. at 53).

        Kenneth R. Snead, owner, testified that he knew there was a “low spot” on the

second step of that truck (Tr. at 68). Mr. Snead stated: “I was aware that that‟s the way it looked

but I didn‟t see anything wrong with it.” (Tr. at 68). Mr. Snead took photographs of the truck

and the steps at issue, which were entered into evidence. Those photos reflect a “low spot” or

“dent” in the second step (Tr. at 67, 68). It is impossible to estimate from the pictures the


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                                                                         VWC File No. 225-76-07


distance from the top step to the second step, and from the second step to the ground, but it is

clear that the distances are not equal to typical steps. The photographs reflect steep, narrow, high

steps, made of aluminum, with corrugation for traction, without more than a grab rail located on

the cab of the truck for safety.

       The employer and other employees all testified that there was no crack in the step and

that the step could not, and did not, “give way.” Shop employees testified that the claimant

never reported any problem with the step.

       The Deputy Commissioner found it significant that the claimant never mentioned a crack

or dent in the step to Dr. Ancheta or in her accident report to the employer.                   The

Deputy Commissioner held that based on the testimony, the claimant‟s written statement, the

written statements of three other employees, and the photographs, the claimant did not sustain

the injury in the way she described. The Deputy Commissioner found that the step had “a ‟give

way‟ spot/soft spot/dent” and “a „swag‟ (dent)” in the second step, but that it did not contribute

to the claimant‟s injury (Op. at 9). Upon Review, we disagree.


               We have held that in order for a fall on stairs to be compensable
               there must either be a defect in the stairs or claimant must have
               fallen as a result of a condition of the employment. Shell, 20 Va.
               App. at 203, 455 S.E.2d at 763. See also Memorial Hospital v.
               Hairston, 2 Va. App. 677, 347 S.E.2d 527 (1986). We, therefore,
               hold that the commission erred when it ruled that the defect must
               be associated with the employment. Rather, the steps must either
               be defective or a condition of the employment must cause the
               injury.




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                                                                          VWC File No. 225-76-07


County of Buchanan School Bd. v. Horton, 35 Va. App. 26, 29-30, 542 S.E.2d 783, 784-85

(2001).


                 A claimant's injury arises out of the employment if the manner in
                 which the employer requires the work to be performed is causally
                 related to the resulting injury. Southside Virginia Training Ctr. v.
                 Ellis, 33 Va. App. 824, 828, 537 S.E.2d 35, 37 (2000).

                        [A]n injury is not compensable merely because it
                        occurred during the performance of some
                        employment duty if the act performed by the
                        employee is not a causative hazard of the
                        employment. Simple acts of walking, bending, or
                        turning,   without      any    other contributing
                        environmental factors, are not risks of
                        employment . . . [These are risks] to which the
                        general public is equally exposed.

                 Id. at 829-30, 537 S.E.2d at 37. It is well established that a fall
                 down stairs does not arise out of the employment without evidence
                 of a defect in the stairs or evidence that a condition of the
                 employment caused the fall. Southside Virginia Training Ctr. v.
                 Shell, 20 Va. App. 199, 203, 455 S.E.2d 761, 763 (1995).
                 However, an injury sustained as a result of a step of abnormal
                 height or condition is compensable. See Reserve Life Ins. Co. v.
                 Hosey, 208 Va. 568, 159 S.E.2d 633 (1968) (rock steps that were
                 higher than a normal step).


Grayson County School Bd. v. Cornett, 39 Va. App. 279, 286-87, 572 S.E.2d 505, 509 (2002).

          Thus, in the instant case, the evidence shows that the steps on the cab of the truck were

not steps to which the general public would be exposed. They were steep, high, aluminum,

corrugated, and without safety rails. In addition, the second step had a “swag” or dent in it,

which represented a defect in the step.



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                                                                         VWC File No. 225-76-07


       There is much discussion about the claimant‟s failure to identify the “dent,” and her

statement that the step “gave way,” “collapsed,” or contained a crack. The employers testified

that there was no crack and that the step could not give way. However, they admitted to the

presence of the dent, and the photographs reflect a dent in the step. The claimant‟s mother

testified that she saw a “break” in the step. We find that the evidence not only supports the

presence of the defect in the second step, but that the steps were peculiar to the employment and

unusual in height and construction. The claimant‟s description of stepping from the cab of the

truck to the first step, and then to the second step, where her foot went into a crack or dent, is

sufficient to find that the conditions of the employment caused her injury.

       Accordingly, we REVERSE the Deputy Commissioner‟s decision, and find that the

claimant sustained an injury by accident arising out of and in the course of her employment on

September 28, 2005. The following award shall enter.


                                            AWARD

       An award is hereby entered on behalf of Wanda H. Patrick, against K. R. Snead

Trucking, Inc., and American Home Assurance Company, providing for the payment of

temporary total disability benefits at the weekly rate of $323.38, based upon a pre-injury average

weekly wage of $485.07, from September 29 through October 28, 2005. Compensation having

accrued shall be paid in one lump sum.

       Medical benefits are awarded pursuant to § 65.2-603 for as long as necessary.

       This matter is hereby removed from the Review docket.



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                                                                         VWC File No. 225-76-07


                                             APPEAL

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

of receipt.


cc:     K. R. Snead Trucking, Inc.
        3166 South Terry‟s Bridge Road
        Scottsburg, VA 24589

        American Home Assurance Company
        AIG Domestic Claims, Inc.
        P.O. Box 70069
        Louisville, KY 40270




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