Virginia Worker’s Fall on Workplace Steps is Not Compensable
A Virginia appellate court, yet again reiterating the state’s version of the “actual risk rule” [see Larson’s Workers’ Compensation Law, § 3.04] affirmed a decision by the state’s Workers’ Compensation Commission that denied workers’ compensation benefits to an employee who slipped and fell on stairs at her place of employment [Mercedes v. NSR Solutions, Inc., 2021 Va. App. LEXIS 115 (July 13, 2021)]. The court stressed that the claimant had failed to show any problem with the steps and had failed to show that the conditions of her employment increased her risk of suffering a fall.
Background
Claimant sustained injuries when she slipped and fell while descending stairs at her place of employment. She later testified that the stairs were concrete with a “pink plastic covering” similar to that “used in gyms.” At one point, she testified that there was something “slippery” on the lower part of the stairs, when she was asked to clarify if there was anything wet on the stairs, she replied, “No, I don’t know. I just fell.” Asked about the nature of the stairs, claimant stated that they were a “normal width. Everything is regular.” The employer’s project manager testified that upon examining the stairs, he did not see anything on the stairs and he described them as having a “vinyl stair tread.” He further indicated that there was nothing wrong with the stairs.
Commission’s Decision
The deputy commissioner denied the claim after determining that claimant had failed to carry her burden of proving that her accident arose out of her employment. A majority of the Commission affirmed. It indicated that claimant had failed to explain what about the stair covering had increased her risk of suffering a fall. It noted that she said she “just fell.” There was no persuasive evidence that the vinyl covering was more slippery than other surfaces used to cover stairs.
Appellate Court: Actual Risk Test
The appellate court stressed that the issue was whether claimant’s injuries arose out of the course of her employment. The court reiterated that Virginia employed an “actual risk test,” in which the claimant must prove that the employment exposed the worker to the particular danger from which he or she was injured, notwithstanding the exposure of the public generally to like risks. Quoting earlier decisions, the court said thus, an actual risk of employment is “not merely the risk of being injured while at work” and “necessarily excludes an injury caused by ‘a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood.’”
Quoting Bernard v. Carlson Companies-TGIF, 60 Va. App. 400 (2012), the court said that an employee who trips while walking on a staircase at work “cannot recover compensation unless something about the steps (or some other condition of the workplace) presented a hazard or danger peculiar to the worksite” [Bernard, 60 Va. App. At 407)].
The court stressed that, as noted by the Commission, claimant did not offer any explanation as to how the vinyl stair covering increased her risk of falling on the stairs, stating only that she “just fell.” She did not testify or present other evidence that the vinyl covering of the stairs made them more slippery or hazardous than stairs with other surfaces. Accordingly, the court found no error in the Commission’s determination that claimant failed to prove that her injury arose out of her employment.
Does Virginia Actually Use the “Actual Risk Test?”
The court discounted the claimant’s final argument—one that I had written about within this blog (click here and here). In relevant part, she argued that the Commission had relied upon the Supreme Court of Virginia’s statement in County of Chesterfield v. Johnson, 237 Va. 180 (1989), that it used the “actual risk” doctrine. Yet, when the high court articulated the rule, it did not “actually” use the “actual risk test,” but rather “an increased risk test.” Thus, claimant's argument was that the Commission erred by relying on a Supreme Court decision that was itself in error. The appellate court noted, however, that in asking the court to reverse the Commission on this point she had asked, in essence, the appellate court to hold that the Supreme Court erred in Johnson. The court stressed that even assuming, arguendo, that there was merit to claimant’s argument, it was well established that the appellate court was bound by decisions of the Supreme Court of Virginia and are without authority to overrule them.