Gates Hudson & Assoc., Inc. v. Maria Diaz

• Court: Court of Appeals of Virginia
• Decided: November 25, 1997
• Docket: 0683974
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, * Judge Elder and Senior Judge Duff Argued at Alexandria, Virginia

GATES HUDSON & ASSOCIATES, INC., ET AL. MEMORANDUM OPINION** BY v. Record No. 0683-97-4 JUDGE LARRY G. ELDER NOVEMBER 25, 1997 MARIA DIAZ

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Dawn E. Boyce (Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C., on brief), for appellants. Craig A. Brown (James F. Green; Ashcraft & Gerel, on brief), for appellee.

Gates Hudson & Associates, Inc. (appellant) appeals an order

of the Workers' Compensation Commission (commission) awarding

benefits to Maria Diaz (claimant). Appellant contends that the

commission erred when it concluded that claimant's injury arose

out of and in the course of her employment. For the reasons that

follow, we affirm.

"In order to establish entitlement to compensation benefits,

the claimant must prove, by a preponderance of the evidence, an

injury by accident which arose out of and in the course of his

[or her] employment." See Classic Floors, Inc. v. Guy, 9 Va.

App. 90, 95, 383 S.E.2d 761, 764 (1989); Code § 65.2-101. An

* On November 19, 1997, Judge Fitzpatrick succeeded Judge Moon as chief judge. ** Pursuant to Code § 17-116.010 this opinion is not designated for publication. injury "arises out of" the employment "when there is apparent to

the rational mind upon consideration of all the circumstances, a

causal connection between the conditions under which the work is

required to be performed and the resulting injury." Brown v.

Reed, 209 Va. 562, 564, 165 S.E.2d 394, 397 (1969). An accident

occurs "in the course of" the employment "when it takes place

within the period of the employment, at a place where the

employee may be reasonably expected to be, and while he is

reasonably fulfilling the duties of this employment or is doing

something reasonably incident thereto." Id. "A finding by the

[c]ommission that an injury arose out of and in the course of

employment is a mixed question of law and fact and is properly

reviewable on appeal." Dublin Garment Co., Inc. v. Jones, 2 Va.

App. 165, 167, 342 S.E.2d 638, 638 (1986). The commission's

factual findings are binding on appeal if supported by credible

evidence. See Code § 65.2-706.

We hold that claimant's injury arose out of and occurred in

the course of her employment. Claimant was employed as a

custodian and her duties included cleaning the common areas

inside appellant's apartment buildings. On June 25, claimant was

sweeping while walking backwards down some steps inside an

apartment building. The steps were both wet and littered with

"candies and . . . gums." Claimant slipped and fell down a set

of steps and onto a landing, injuring her right arm, shoulder,

and leg. This evidence established both a causal connection

2 between claimant's employment and her injury and that the injury

took place while claimant was performing her regular duties.

We disagree with appellant that claimant's failure to

understand her supervisors' instruction not to clean inside the

buildings on June 25 rendered her injury non-compensable.

Appellant does not contend that claimant's claim is barred

because she willfully breached its rules or regulations. See

Code § 65.2-306. On June 25, claimant returned to work after an

absence stemming from a non-work-related injury with a note from

her physician restricting her from lifting weights greater than

five pounds. Claimant's supervisors instructed her about her

duties for the day in light of her physician's restriction. The

commission found that claimant "understood her instructions to

allow her to enter the buildings to the extent that she could

perform work within her restrictions." This finding is supported

by claimant's testimony that she was never told she was

prohibited from entering the buildings and that she understood

Mr. Aragon's Spanish translation of her supervisors' instructions

to be that she "was not to lift any heavy item [and] that [she]

did not have to mop or strip." Although claimant's testimony

conflicted with the testimony of her supervisors, the commission

was entitled to conclude that claimant's testimony was more

credible. See Uninsured Employer's Fund v. Mounts, 24 Va. App.

550, 559, 484 S.E.2d 140, 144 (1997) (stating that "[a]s the

trier of fact, the commission determine[s] . . . the credibility

3 of the witness[es]").

Furthermore, the record indicates that claimant was merely

attempting to perform her regular duties within her physician's

restrictions at the time of her accident. Claimant testified

that she decided to clean in the buildings because she noticed

that they were dirty and "felt that she needed to clean them

because they were her buildings." The record indicates that

claimant was sweeping when she fell down the stairs, and this

evidence supports the commission's finding that claimant was not

performing work that "[exceeded] the restrictions which had been

imposed by her doctor." Contrary to appellant's argument,

claimant was not injured after "incurring dangers of [her] own

choosing which [were] altogether outside of any reasonable

requirement of [her] position." Conner v. Bragg, 203 Va. 204,

209, 123 S.E.2d 393, 397 (1962); cf. Jones v. Colonial

Williamsburg Foundation, 10 Va. App. 521, 524, 392 S.E.2d 848,

850 (1990). In light of claimant's understanding of appellant's

instructions and the circumstances of her accident, we conclude

that claimant was injured while performing a task reasonably

incidental to her duties at a place where appellant could

reasonably expect her to be. Brown, 209 Va. at 564, 165 S.E.2d

at 397.

For the foregoing reasons, we affirm the commission's award

of benefits.

Affirmed.