COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Clements Argued at Salem, Virginia
DESHAZO OIL COMPANY, INC. AND FEDERATED MUTUAL INSURANCE COMPANY MEMORANDUM OPINION* BY v. Record No. 1989-02-3 JUDGE RUDOLPH BUMGARDNER, III MARCH 4, 2003 JOHN HENRY DILLON, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert M. McAdam (Jones & Glenn, P.L.C., on brief), for appellants.
John W. Swezey for appellee.
Deshazo Oil Company contends the Workers' Compensation
Commission erred in finding John Henry Dillon, Jr. sustained an
injury by accident. The employer lists six issues on appeal, 1
but they primarily restate the single contention that the
commission erred in relying solely on hearsay statements to
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 The employer states the following questions: 1) whether the evidence is sufficient to prove the injury arose out of and in the course of the employment; 2) whether the evidence supports the finding that the disability was due to an aggravation of a pre-existing condition; 3-4) whether the commission erred as a matter of law in resorting to hearsay statements contained in the medical reports and Claim for Benefits to award benefits; 5) whether the commission erroneously relied on Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314, 456 S.E.2d 541 (1995); and 6) whether the commission erred as a matter of law in admitting the claim form. establish causation. Concluding the commission did err, we
reverse.
On appeal, we view the evidence in the light most favorable
to the worker. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App.
211, 212, 390 S.E.2d 788, 788 (1990). On December 21, 1999, the
worker, a propane delivery driver, injured himself when he
slipped on a customer's deck. The worker testified, "[a]s I
started off the deck after leaving the ticket, I slipped at the
last section of the deck, falling, and landed on my head and
shoulders on the bottom step."
On January 19, 2000, Dr. Mahoney examined the worker. He
recorded the following history: "slipped on a frosted deck and
fell down the stairs. He said that he stepped onto the deck and
his feet shot out from underneath him and he fell . . . ." The
Claim for Benefits recited the worker "slipped and fell off wet
deck."
The deputy commissioner concluded, "the injury arose out of
the employment as the claimant was on the deck pursuant to
making a delivery and that the act of slipping and falling arose
out of a risk of employment." The full commission affirmed the
award on different grounds. It noted that while the worker did
not provide direct evidence that the wet deck caused his fall,
he nonetheless proved he "slipped and fell as a result of a wet
substance on the deck." The commission viewed the medical
- 2 - history and the claim form as supplementing the worker's
testimony and sufficient to prove causation.
Whether an accident arises out of the employment is a mixed
question of law and fact reviewable on appeal. Mullins v.
Westmoreland Coal Co., 10 Va. App. 304, 307, 391 S.E.2d 609, 611
(1990). "[I]n order for a fall on stairs to be compensable
there must be a defect in the stairs or claimant must have
fallen as a result of a condition of the employment." County of
Buchanan Sch. Bd. v. Horton, 35 Va. App. 26, 29, 542 S.E.2d 783,
784-85 (2001). In this case, the worker did not allege there
was a defect; consequently, the worker had to show that a
condition of the workplace either caused or contributed to his
fall. County of Chesterfield v. Johnson, 237 Va. 180, 184, 376
S.E.2d 73, 76 (1989).
The worker testified he slipped and fell, but he elaborated
no further, although nothing indicates he was unable to recall
details of the fall. He offered no evidence that the manner in
which he performed the work caused his fall. Marion
Correctional Treatment Ctr. v. Henderson, 20 Va. App. 477, 481,
458 S.E.2d 301, 303 (1995). Proving a fall at work, even at an
unfamiliar location, does not prove a causative danger of the
workplace. Southside Virginia Training Ctr. v. Shell, 20
Va. App. 199, 203-04, 455 S.E.2d 761, 763 (1995).
The worker's testimony lacked any detail that suggested a
condition of his employment caused his fall. "[W]hen the - 3 - claimant, who is in a position of being able to explain the
occurrence, fails to present evidence which establishes that the
injury arose out of the employment the claim for compensation
must be denied." Memorial Hosp. v. Hairston, 2 Va. App. 677,
682, 347 S.E.2d 527, 529 (1986). The commission may consider
statements in medical histories "to explain the basis of the
doctor's opinion, or to impeach (as with a prior inconsistent
statement), or to corroborate (as with a prior consistent
statement) the claimant's testimony." McMurphy Coal Co. v.
Miller, 20 Va. App. 57, 59, 455 S.E.2d 265, 266 (1995). The
statements may not, however, be relied upon to determine how an
accident occurred. Board of Supervisors of Henrico County v.
Martin, 3 Va. App. 139, 144, 348 S.E.2d 540, 542 (1986).
In Martin, the worker slipped on a soapy floor, injured his
knee, but filed his claim after the statute of limitations
expired. The worker stipulated that the injury was caused by
the last accident. The commission awarded benefits despite the
delay in filing by ruling the injury was an aggravation of an
earlier compensable injury. 3 Va. App. at 142, 348 S.E.2d at
541. This Court held the commission impermissibly used the
medical history to prove causation. The history was
impermissible hearsay when used by the worker as substantive
evidence to refute a stipulation or unequivocal testimony at
trial.
- 4 - In Miller, the medical history contradicted the worker's
testimony about the way the accident occurred. This Court held
the commission erred in failing to consider the medical evidence
as impeaching the worker's testimony. 20 Va. App. at 59-60, 455
S.E.2d at 267.
In Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314, 456
S.E.2d 541 (1995), a worker gave his doctors inconsistent
reports of how his injury occurred. The commission refused to
consider these medical histories in deciding how the accident
occurred. This Court reversed because the commission failed to
consider the medical history as a party admission when
evaluating the worker's evidence.
The series of cases holds that medical histories may be
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COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Clements Argued at Salem, Virginia
DESHAZO OIL COMPANY, INC. AND FEDERATED MUTUAL INSURANCE COMPANY MEMORANDUM OPINION* BY v. Record No. 1989-02-3 JUDGE RUDOLPH BUMGARDNER, III MARCH 4, 2003 JOHN HENRY DILLON, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert M. McAdam (Jones & Glenn, P.L.C., on brief), for appellants.
John W. Swezey for appellee.
Deshazo Oil Company contends the Workers' Compensation
Commission erred in finding John Henry Dillon, Jr. sustained an
injury by accident. The employer lists six issues on appeal, 1
but they primarily restate the single contention that the
commission erred in relying solely on hearsay statements to
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 The employer states the following questions: 1) whether the evidence is sufficient to prove the injury arose out of and in the course of the employment; 2) whether the evidence supports the finding that the disability was due to an aggravation of a pre-existing condition; 3-4) whether the commission erred as a matter of law in resorting to hearsay statements contained in the medical reports and Claim for Benefits to award benefits; 5) whether the commission erroneously relied on Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314, 456 S.E.2d 541 (1995); and 6) whether the commission erred as a matter of law in admitting the claim form. establish causation. Concluding the commission did err, we
reverse.
On appeal, we view the evidence in the light most favorable
to the worker. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App.
211, 212, 390 S.E.2d 788, 788 (1990). On December 21, 1999, the
worker, a propane delivery driver, injured himself when he
slipped on a customer's deck. The worker testified, "[a]s I
started off the deck after leaving the ticket, I slipped at the
last section of the deck, falling, and landed on my head and
shoulders on the bottom step."
On January 19, 2000, Dr. Mahoney examined the worker. He
recorded the following history: "slipped on a frosted deck and
fell down the stairs. He said that he stepped onto the deck and
his feet shot out from underneath him and he fell . . . ." The
Claim for Benefits recited the worker "slipped and fell off wet
deck."
The deputy commissioner concluded, "the injury arose out of
the employment as the claimant was on the deck pursuant to
making a delivery and that the act of slipping and falling arose
out of a risk of employment." The full commission affirmed the
award on different grounds. It noted that while the worker did
not provide direct evidence that the wet deck caused his fall,
he nonetheless proved he "slipped and fell as a result of a wet
substance on the deck." The commission viewed the medical
- 2 - history and the claim form as supplementing the worker's
testimony and sufficient to prove causation.
Whether an accident arises out of the employment is a mixed
question of law and fact reviewable on appeal. Mullins v.
Westmoreland Coal Co., 10 Va. App. 304, 307, 391 S.E.2d 609, 611
(1990). "[I]n order for a fall on stairs to be compensable
there must be a defect in the stairs or claimant must have
fallen as a result of a condition of the employment." County of
Buchanan Sch. Bd. v. Horton, 35 Va. App. 26, 29, 542 S.E.2d 783,
784-85 (2001). In this case, the worker did not allege there
was a defect; consequently, the worker had to show that a
condition of the workplace either caused or contributed to his
fall. County of Chesterfield v. Johnson, 237 Va. 180, 184, 376
S.E.2d 73, 76 (1989).
The worker testified he slipped and fell, but he elaborated
no further, although nothing indicates he was unable to recall
details of the fall. He offered no evidence that the manner in
which he performed the work caused his fall. Marion
Correctional Treatment Ctr. v. Henderson, 20 Va. App. 477, 481,
458 S.E.2d 301, 303 (1995). Proving a fall at work, even at an
unfamiliar location, does not prove a causative danger of the
workplace. Southside Virginia Training Ctr. v. Shell, 20
Va. App. 199, 203-04, 455 S.E.2d 761, 763 (1995).
The worker's testimony lacked any detail that suggested a
condition of his employment caused his fall. "[W]hen the - 3 - claimant, who is in a position of being able to explain the
occurrence, fails to present evidence which establishes that the
injury arose out of the employment the claim for compensation
must be denied." Memorial Hosp. v. Hairston, 2 Va. App. 677,
682, 347 S.E.2d 527, 529 (1986). The commission may consider
statements in medical histories "to explain the basis of the
doctor's opinion, or to impeach (as with a prior inconsistent
statement), or to corroborate (as with a prior consistent
statement) the claimant's testimony." McMurphy Coal Co. v.
Miller, 20 Va. App. 57, 59, 455 S.E.2d 265, 266 (1995). The
statements may not, however, be relied upon to determine how an
accident occurred. Board of Supervisors of Henrico County v.
Martin, 3 Va. App. 139, 144, 348 S.E.2d 540, 542 (1986).
In Martin, the worker slipped on a soapy floor, injured his
knee, but filed his claim after the statute of limitations
expired. The worker stipulated that the injury was caused by
the last accident. The commission awarded benefits despite the
delay in filing by ruling the injury was an aggravation of an
earlier compensable injury. 3 Va. App. at 142, 348 S.E.2d at
541. This Court held the commission impermissibly used the
medical history to prove causation. The history was
impermissible hearsay when used by the worker as substantive
evidence to refute a stipulation or unequivocal testimony at
trial.
- 4 - In Miller, the medical history contradicted the worker's
testimony about the way the accident occurred. This Court held
the commission erred in failing to consider the medical evidence
as impeaching the worker's testimony. 20 Va. App. at 59-60, 455
S.E.2d at 267.
In Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314, 456
S.E.2d 541 (1995), a worker gave his doctors inconsistent
reports of how his injury occurred. The commission refused to
consider these medical histories in deciding how the accident
occurred. This Court reversed because the commission failed to
consider the medical history as a party admission when
evaluating the worker's evidence.
The series of cases holds that medical histories may be
used when it is offered against a party as an admission or when
used to impeach or corroborate the declarant's testimony. In
this case, the worker testified he slipped and fell without
suggesting a cause for the fall. Neither his statement recorded
in the medical history nor that asserted in the claim form can
supply what his testimony failed to broach. The statements were
not party admissions offered as evidence against him, nor did
they corroborate his testimony. They could not corroborate
evidence that did not exist. 2
2 The worker did not identify alternative causes of the fall and introduce the statements to support one cause or the other. For example, there is no evidence of snow or ice on the ground, whether it had recently rained, or whether a different substance - 5 - The worker cannot use the medical histories as the sole
means of sustaining his burden of proof. See Martin, 3 Va. App.
at 144-45, 348 S.E.2d at 542; Pence, 20 Va. App. at 318, 456
S.E.2d at 543. Similarly, assertions in a claim form cannot be
the sole proof of the claim asserted therein. The form provides
notice to the employer of its potential liability, activates the
worker's right to compensation, and invokes the jurisdiction of
the commission. Binswanger Glass Co. v. Wallace, 214 Va. 70,
73, 197 S.E.2d 191, 194 (1973). The worker still has the
burden to present evidence proving the claim. 21 Michie's
Jurisprudence, Worker's Compensation § 66, 304 (1997) ("no rule
of liberality will take the place of required proof").
The commission erred in finding the worker proved a
condition of employment caused or contributed to the fall.
Accordingly, we reverse the commission's decision but need not
consider the employer's other assignments of error.
Reversed.
was on the deck. Cf. Jennings v. UEC Catalytic, Inc., 74 Va. WC 76 (1995) (employee's testimony that he slipped and fell and that either red oil or rain water was on stairs sufficient to prove claim). - 6 -