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					VIRGINIA:                                                                                          11/02/2005
IN THE WORKERS’ COMPENSATION COMMISSION


SARA L. PALIK, Claimant
                                                                                              Opinion by TARR
                                                                                                 Commissioner
v.                         VWC File No. 219-92-04


VIRGINIA COMMONWEALTH UNIVERSITY, Employer
MANAGED CARE INNOVATIONS, LLC, Insurer


Sara L. Palik
9103 Derbyshire Road, #F
Richmond, Virginia 23229
Appeared pro se.1
(Priority Mail)

Scott J. Fitzgerald, Esquire
Senior Assistant Attorney General
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219
For the Defendants.
(Priority Mail)


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


       The claimant requests Review of the Deputy Commissioner’s May 17, 2005, Opinion

finding the claimant failed to prove her injury arose out of her employment. We AFFIRM.

       Sara L. Palik filed a Claim for Benefits on August 9, 2004, amended August 25, 2004,

alleging an injury by accident to her neck, shoulder, right rotator cuff and back on July 19, 2004,

while working for the employer, Virginia Commonwealth University (VCU). She sought




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           At the hearing on March 11, 2005, the claimant was represented by Michele S. Lewane, Esquire.
                                                                        VWC File No. 219-92-04


temporary total and temporary partial disability benefits for various periods based on a stipulated

pre-injury average weekly wage of $583.63.

        The claimant worked as the executive assistant for the executive director of the VCU

Foundation.     In the summer of 2004, a new department was moving into one of VCU’s

buildings, the Blanton House, so workers were painting, laying new carpeting, and repairing

floors. On July 19, 2004, Ms. Palik inspected the building with Mr. Davidson. As they were

walking down a short flight of stairs, talking about the renovations, her feet came out from under

her, and she landed on her buttocks, going down each step along the way. She noted that she had

popped some stitches from a previous surgery, and her back and shoulder were hurting.

        Counsel asked whether the claimant’s foot tripped on the transition piece on the top of

the steps. The claimant replied:

        [I]t happened so fast. I remember my foot touching that strip, because I
        remember feeling my foot go over that strip. Initially, I thought maybe---I thought
        I had tripped on the strip; however, when we went back and examined the area,
        looking at the steps, we realized that there was a dip right in the landing right
        before that dip, and I wonder---you know, I just kind of feel like maybe going in
        that dip is what made me lose my balance and let---I already had my foot on that
        strip, and that’s just what slid as I went out from under.

        The claimant measured the dip, which was six and a half inches long and four inches

wide. She could feel the dip in the carpet but stated it did not turn out well in photographs that

were submitted at the hearing. The photographs showed a shadow where the carpet had now

settled into the dip.

        On cross-examination, the claimant acknowledged that she said she had tripped over the

transition step in her recorded statement. She explained that at the time of the statement, she had

not inspected the area where she fell and did not know about the dip then.



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                                                                            VWC File No. 219-92-04


         The claimant’s July 19, 2004, accident report describes her injury as falling on “metal

strip on step.” The claimant gave a recorded statement on July 30, 2004, during which she stated

that she tripped on metal stripping at the top of the steps, her feet went out from under her and

she fell down four steps. She said her foot did not trip on the strip. Her foot slid on the strip and

her feet flew out from under her. She was not carrying anything that obstructed her view of the

steps.

         On cross-examination, the claimant said she first noticed the dip when she went back and

examined the steps in January 2005. She estimated that it was up to a half-inch deep. She did not

know whether the dip existed in July 2004 at the time she fell. When asked whether the metal

strip or the dip in the floor caused her fall she replied:

         When we went to examine the step we were trying to figure out---I remembered
         my foot sliding across that strip and then the dip. Quite honestly, I---it was one or
         the other. I’m not really sure…. I originally thought it was the strip, but there
         was---we thought that maybe because my foot went--- (inaudible) foot went down
         in the dip, that’s what made me trip on the strip. Yes, I did trip on---I did---I [sic]
         going to have to say trip or slip. My feet went out from under me at that---on the
         strip and we were thinking maybe the dip is what made that---me trip on that strip.
         I’m talking in riddles here.

         Steve Davidson, the manager of the maintenance shop at VCU, testified that he takes care

of maintenance in approximately 109 different buildings on campus. He vaguely remembered

working on Blanton House where the claimant was showing him various repairs that needed to

be completed. Davidson did not specifically recall what happened. He remembered the claimant

falling, landing on one hand and one leg, and helping her up. Davidson went back to Blanton

House in February 2005. He observed new carpeting but did not see anything out of the

ordinary.




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                                                                           VWC File No. 219-92-04


          Harry Davis, the manager of small construction services at VCU and MCV, testified that

he was overseeing the renovations of Blanton House in July 2004. New carpet was being

installed in sections in the building by a subcontractor. The carpet was terminated at the end of

the hallway before the steps because of floor work that needed to be done. He explained “there

was a transition strip for terminating the carpet at the end of the hall before you went down the

steps.”

          Davis saw the claimant after her injury. She told him she fell down the steps because of

the transition strip. He told the claimant that the transition strip could have looked better, but that

it was properly installed. Davis did not recall any floor damage in the area of the claimant’s fall.

He did not recall that the steps were slanted or that they creaked. He also did not notice a dip in

the floor where the claimant had fallen.

          On cross-examination, Davis identified photographs depicting the carpet with the metal

transition strip where the hallway ends and the steps begin. He did not recall seeing any repair

work to the floor around the stairway. He did no repair work in the area and was not billed for

any such work.

          The claimant treated at Employee Health Services. Patricia Allen, a nurse practitioner,

recorded on July 19, 2004, that the claimant fell down some steps on which new carpeting had

been installed. Ms. Allen noted, “ . . . She states there is a metal strip around it, which was

slippery, which she believes, caused her fall.”

          Based on this evidence, the Deputy Commissioner found that the claimant failed to prove

her injury arose out of a risk of her employment. The Deputy Commissioner found that the

claimant failed to prove her accident in falling down the steps at work on July 19, 2004, “was



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                                                                           VWC File No. 219-92-04


caused by a defect in the floor or stairway or otherwise grew out of conditions related to her

work environment.” We AFFIRM.

       The law places the burden on the claimant to prove that her accident arose out of her

employment. For falls on steps, a claimant must prove that a defect in the stairs or some

condition of the workplace caused or contributed to her fall. Southside Virginia Training

Center v. Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995).

       The Deputy Commissioner did not accept the claimant’s testimony that she fell because

of a defect, either the dip or in the transition strip. He noted that the claimant at first thought she

fell because of the transition strip but later thought that “maybe” her foot went into the dip.

Moreover, he implicitly found more credible the witnesses who testified there were no noticeable

defects, dips, or depressions in the area where the claimant fell.

       The claimant’s evidence failed to prove that the steps were defective or that a foreign

substance or object contributed to cause the fall. Finally, she presented no evidence to support a

finding that the fall resulted from a particular employment risk, such as being in a hurry or

distracted. See Miller & Long Co. v. Blake, No. 0939-99-4 (Va. Ct. App., June 27, 2000)

(unpublished).

       Accordingly, the Deputy Commissioner properly denied the claim. The Opinion below is

AFFIRMED.

       This matter is hereby removed from the Review docket.

                                              APPEAL

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

days of receipt.



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                                            VWC File No. 219-92-04



c:   Virginia Commonwealth University
     Post Office Box 842511
     Richmond, Virginia 23284-2511

     Commonwealth of Virginia
     Managed Care Innovations, LLC
     Post Office Box 1140
     Richmond, Virginia 23218




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