Virginia security guard appeal for worker’s compensation denied
Richmond VA May 1 2020 Where appellant tripped and fell on an uneven sidewalk, the Virginia Workers’ Compensation Commission correctly determined that she did not prove that her injuries arose out of her employment.
Overview
Appellant works for Virginia State University as a security guard. She took a break from her duties and began walking on a sidewalk toward one of the university’s buildings. She tripped and fell, injuring her shoulder. Appellant filed a workers’ compensation claim.
“Employer defended the claim on the ground that appellant’s injuries did not arise out of her employment. The deputy commissioner denied appellant benefits, finding that she failed to prove her injury was the result of a work-related risk.
“Appellant appealed that decision to the Commission who found that the evidence was insufficient to show ‘a condition or risk of [appellant]’s employment caused [her] injuries.’ The Commission also found that the evidence was insufficient to show that ‘the uneven area of the sidewalk caused [appellant] to trip and fall.’”
Analysis
“Appellant argues that the Commission erred when it held that she did not prove by a preponderance of the evidence that she sustained an injury that arose out of her employment. …
“Under the circumstances of this particular incident and under the mixed standard of review we must apply, we affirm the Commission’s conclusion that appellant failed to prove by a preponderance of the evidence that her injuries arose out of her employment.
“The Commission found that there was insufficient evidence to show that ‘the uneven area of the sidewalk caused [appellant] to trip and fall.’ The Commission also found that, based upon its view of the photographs, the sidewalk contained an area that appeared to be ‘uneven, especially on the right side’ of the photograph.
“The Commission further found that appellant’s testimony reflected that she did not know whether she tripped and fell as a result of the uneven surface because she admitted that she was not aware of the uneven area of the sidewalk until someone told her about it after she fell.
“Indeed, appellant testified, ‘I didn’t even see a crack in the sidewalk, I just knew I tripped. I was advised after that there was a crack in the sidewalk[.]’ She also stated, ‘All I can say is I tripped on the sidewalk, I can’t say that it was the actual crack that caused me to fall.’
“The Commission held that ‘[t]he mere existence of the uneven area does not preponderate to show its causal relationship to the accident.’
“‘[A]n injury does not arise out of the employment 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.’ …
“[T]he Commission’s factual findings are supported by credible evidence. Because the Commission’s conclusion is supported by credible evidence, we cannot say it is plainly wrong as a matter of law. …
“Further, the evidence presented failed to prove by a preponderance that the uneven surface of the sidewalk caused appellant to fall. Without more, this evidence falls short of appellant’s statutory burden of providing the ‘critical link’ between her employment and the resulting injuries.”
Affirmed.
Choinski v. Virginia State University, Record No. 1927-19-2, March 31, 2020. CAV (per curiam) from the Virginia Workers’ Compensation Comm’n. Robert L. Flax for appellant, Mark R. Herring for appellee. VLW 020-7-057, 6 pp. Unpublished.
