COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Russell and Malveaux UNPUBLISHED
Argued at Lexington, Virginia
JENNIFER YVONNE KELLEY MEMORANDUM OPINION* BY v. Record No. 1083-16-3 JUDGE WESLEY G. RUSSELL, JR. DECEMBER 13, 2016 MONTICELLO AREA COMMUNITY ACTION AGENCY AND ACCIDENT FUND GENERAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Bradford M. Young (Hammond Townsend, PLC, on briefs), for appellant.
Amanda S. Tapscott (McCandlish Holton, P.C., on brief), for appellees.
Jennifer Yvonne Kelley, claimant, appeals the decision of the Virginia Workers’
Compensation Commission denying her claim for benefits. Specifically, she challenges the
Commission’s failure to find a de facto award and its conclusion that her injury did not arise
from her employment. For the reasons that follow, we affirm the Commission’s denial of
benefits.
BACKGROUND
“On appeal from a decision of the Workers’ Compensation Commission, the evidence
and all reasonable inferences that may be drawn from that evidence are viewed in the light most
favorable to the party prevailing below.” Artis v. Ottenberg’s Bakers, Inc., 45 Va. App. 72, 83,
608 S.E.2d 512, 517 (2005) (en banc).
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. At the time of her claimed injury, claimant had been employed in various positions by the
Monticello Area Community Action Agency, employer, for eight years. During the relevant
time period, her duties included cooking breakfast for children, the setting and cleaning of tables
and other related custodial tasks, and ordering and stocking food. The position was subject to an
eight-week summer furlough, but she had not yet been in her current position long enough to
have been subject to the summer furlough. She earned an $11 hourly wage.
On February 21, 2013, claimant was completing some paperwork at the end of her
workday. As she was taking the papers to another office, she tripped walking across a rug, and,
in trying to catch herself, she reached out. With her right hand, she grabbed a mop that was
sitting in a bucket and, as she continued to fall over, the mop and bucket fell on top of her.
Claimant was wearing nonskid shoes, and the rug had been positioned in the hall for a while.
The rug was a thin rug with a rubber trimming around it. The rug was lying flat when claimant
tripped over it, and there was no evidence that it suffered from any defects. As a result of her
fall, claimant injured her breast and left thumb.
Claimant reported the incident to employer the next day. She sought medical care from
an urgent care clinic on March 5, 2013. She reported to the medical provider that she “was
mopping the floor [and] tripped, bending my L[eft] thumb backwards.”
On March 8, 2013, employer filed its “First Report of Injury.” Based on claimant’s
report, the employer listed the cause of the fall as a “[f]all, [s]lip or [t]rip.” Employer reported to
its insurance carrier that claimant had said she “tripped over a bucket and fell.”
She returned to work, missing only a few days for appointments and swelling, but was
able to perform her duties with a splint and pain medications until April 1, 2014, when she had
surgery performed on her hand. Claimant was released to light duty in June, but employer had
no such work.
-2- In addition to paying for claimant’s medical bills, employer made voluntary temporary
total disability payments from April 1 through October 6, 2014. On May 8, 2014, employer
informed the Commission that it had sent claimant agreement forms on April 24th. On May 12,
2014, claimant filed a claim for benefits with the Commission, claiming an injury to her thumb.
As the cause of the injury she asserted: “Hit my hand on something”; “Trip over rug”; “went to
catch myself. I grab mop handle [and] went down mop bucket and all.” She did not mark any
specific request for particular benefits, but requested a “hearing due to the change you have or
[are] planning to make to my benefits.” Her claim noted average gross earnings of $440 per
week. On June 5, 2014, the Commission sent a notice to claimant requesting that she clarify the
benefits she was seeking.
On June 18, 2014, the Commission sent claimant a notice regarding an agreement form
request. The notice stated, “[employer’s] Claim Administrator has advised the Commission they
have agreed to pay medical and/or wage benefits on your claim” but further explained that “an
award has not been entered.” On June 23, claimant filed another claim for benefits and
application for hearing. This claim, alleging ongoing loss of work, sought “an award of
temporary total disability benefits commencing February 21, 2013, through the present and
continuing” and a lifetime award of medical benefits.
On July 1, 2014, the Commission sent a request for response inquiring whether the
agreement forms previously indicated as sent would “be revised to show the requested beginning
date.” On July 9, 2014, employer informed the Commission that agreement forms had been sent
to claimant on May 9.
On September 4, 2014, claimant filed a third claim for benefits. This claim listed the
chest as well as the thumb as the injured body parts. It sought total and partial wage loss,
-3- lifetime medical benefits, and compensation for permanent disability. The average weekly wage
was marked “TO BE DETERMINED.”
On October 15, 2014, the Commission received an Award Agreement, dated April 20,
2014, establishing a temporary total disability award of $293.33 (based on a pre-injury weekly
wage of $440) for the injury to claimant’s thumb. The form was signed only by claimant, so it
was forwarded to employer’s carrier for its endorsement. On November 12, 2014, the
Commission received a different Award Agreement form. It was signed by both claimant and
employer, on October 17 and November 12, 2014, respectively, and provided claimant a $238.75
per week award of temporary total disability benefits beginning April 1, 2014, for her thumb
injury. The award was calculated based on a pre-injury weekly wage of $357.51. Later that
same day, employer informed both claimant’s counsel and the Commission that it “no longer
agree[d] to entry of an award in this matter.”
The matter proceeded to an evidentiary hearing before the deputy commissioner on April
4, 2015. Claimant described the accident as follows:
I tripped and when I was falling I went to grab and there was a mop and a bucket setting there and I grabbed the mop. When I went down I guess I pulled it over and everything came over on me . . . . And I bent my thumb back and I had bruises on [m]y chest ....
When asked how she tripped, she responded, “I guess it was [a] rug there and it might have just
been the rubber on the rug and I didn’t lift my, but . . . .” When questioned for clarification,
claimant reiterated, “I tripped on the rug.” Claimant conceded that she had been walking
normally and that there was nothing abnormal about the rug. She noted that she had grabbed a
mop with her right hand and indicated that she was unsure how she had hurt her left thumb.
Claimant further testified regarding her efforts to market her residual capacity.
-4- A human resources director of employer also testified. She relayed that when claimant
reported the accident to her, claimant attributed her fall to tripping over the mop and bucket. The
director had provided that description in her report to employer’s insurance carrier.
Documentary evidence, including medical reports, referenced both the mop and bucket and the
rug in relation to claimant’s fall. The deputy commissioner noted the discrepancies in the
evidence related to the cause of claimant’s accident and resulting injuries.
The parties also addressed the calculation of claimant’s average weekly wage. The
dispute was based on claimant’s change in position with employer and her now being subject to
future furlough. Claimant, challenging the employer’s calculation of the average weekly wage,
nevertheless asserted her belief that “the payment of those benefits even at the wrong
compensation rate for six months, would establish a de facto order.” After the hearing, the
deputy commissioner allowed the parties time to determine whether they could reach an
agreement as to claimant’s pre-injury weekly wage, but by letters dated April 27 and 29, 2015,
they informed the deputy commissioner that they could not agree on a wage calculation and set
forth their respective positions.
On June 9, 2015, the deputy commissioner issued his decision. He found that there was
no irregularity in the rug over which claimant tripped. He noted there was some evidence of a
bucket being involved in the accident, but stressed that “claimant’s testimony made no mention
of a bucket[.]” The deputy commissioner accordingly concluded that claimant’s fall did not arise
out of her employment. In addition, emphasizing the dispute regarding the weekly wage, he
found the parties had not reached an agreement so that there was no basis upon which to find a
de facto award. Based on his findings, the deputy commissioner dismissed the claim.
Claimant sought full Commission review of the deputy commissioner’s decision, seeking
reversal of both his findings. Claimant argued the deputy commissioner erred in not considering
-5- the presence of the mop and bucket when they “were present at the accident site precisely as a
result of [claimant’s] performance of her mopping duty, [and] their role in the mechanism of her
injury means that her accident with resulting injury arose from a condition of her employment.”
With respect to the de facto award issue, claimant asserted that “[e]vidence readily shows the
existence of such an agreement. It also demonstrates that the [e]mployer has not acted in good
faith in contesting the compensability of her claim.”
On May 31, 2016, the Commission issued its opinion denying the claim. Relying on
claimant’s testimony, the Commission found that “[t]he flat rug, standing alone, did not create an
increased risk of injury. As a consequence, the claimant failed to prove her accident arose from
a risk of her employment.” The Commission majority, citing its own precedent, noted that “[t]he
Commission will not impose a de facto award if the employer asserts a defense that relates to the
components of an initial award . . .” (internal quotation marks and citation omitted), and based on
its acceptance of employer’s defense that the accident did not arise from the employment,
determined that “imposing a de facto award where there was no compensable accident would be
contrary to the Virginia Workers’ Compensation Act and would discourage [employers] from
making voluntary payments.” The Commission further rejected claimant’s argument that
employer acted in bad faith, stating “[t]he Commission allows either party to withdraw
agreement to an award within the period for requesting review.” Finally, the Commission
concluded that claimant had not detrimentally relied upon the employer’s voluntary payments,
noting that
the claimant had preserved the statute of limitations by having already filed several claims. She was afforded a hearing on the merits of her case some five months after the agreement was withdrawn, thus [giving] her ample time to prepare. We do not find the defendants’ decision to contest the claims at the evidentiary hearing unfairly prejudiced the claimant.
-6- One commissioner dissented. Taking no issue with the Commission’s factual findings
regarding the accident or the cause of the claimed injuries, the dissenting commissioner would
have awarded benefits because of his conclusion that “[a] de facto award was appropriate in this
case.” In support of his conclusion, the dissenting commissioner stated that “the only reasonable
interpretation of the evidence establishes the insurer’s last minute change of position was
intended to gain an unfair advantage[;]” however, he did not identify how claimant had
detrimentally relied on employer’s voluntary payments or any prejudice that she had suffered.
On appeal to this Court, claimant asserts the following assignments of error:
I. The Workers’ Compensation Commission erred in finding that [claimant] did not receive a de facto award, including the Commission’s finding that [employer] acted in good faith in disputing the compensability of her injury.
II. The Workers’ Compensation Commission erred in failing to find that the mop and bucket contributed to [claimant’s] accident and resulting injury.
III. The Workers’ Compensation Commission erred in failing to find that a condition of [claimant’s] workplace caused her to suffer an accident with resulting injury.
ANALYSIS
It is well settled that “we are bound by the [C]ommission’s findings of fact as long as
‘there was credible evidence presented such that a reasonable mind could conclude that the fact
in issue was proved,’ even if there is evidence in the record that would support a contrary
finding.” Artis, 45 Va. App. at 83-84, 608 S.E.2d at 517 (quoting Westmoreland Coal Co. v.
Campbell, 7 Va. App. 217, 222, 372 S.E.2d 411, 415 (1988)). “The scope of a judicial review of
the fact finding function of [the C]ommission [] is ‘severely limited, partly in deference to the
agency’s expertise in a specialized field.’” Georgia-Pacific Corp. v. Robinson, 32 Va. App. 1, 4,
526 S.E.2d 267, 268 (2000) (quoting Metropolitan Cleaning Corp. v. Crawley, 14 Va. App. 261,
266, 416 S.E.2d 35, 38 (1992)). Nevertheless, “the [C]ommission’s legal determinations are not
-7- binding on appeal and will be reviewed de novo.” Wainwright v. Newport News Shipbuilding &
Dry Dock Co., 50 Va. App. 421, 430, 650 S.E.2d 566, 571 (2002).
I. De facto Award
Claimant, in essence, argues that the Commission should not have reached the merits of
her underlying claim because she was entitled to a de facto award. She argues that the
employer’s voluntary payments, coupled with what she asserts were employer’s stipulation to
compensability and failure timely to contest the claim,1 dictate that the Commission find she was
subject to a de facto award. Furthermore, she asserts that “the absence of ‘unfair prejudice’ is
not an element that [she was required to] show to prove her receipt of a de facto award.” In this,
she is mistaken.
Although the Workers’ Compensation Act “nowhere mentions de facto awards, we
embraced the idea in National Linen Service v. McGuinn, 5 Va. App. 265, 271, 362 S.E.2d 187,
190 (1987) (en banc)[.]” Lysable Transp., Inc. v. Patton, 57 Va. App. 408, 414, 702 S.E.2d 596,
599 (2010). Thus, “[a] de facto award is a legal fiction crafted by the courts, ‘a creature of case
law not statutory law.’” Id. at 414, 702 S.E.2d at 598 (quoting Ryan’s Family Steak Houses v.
Gowan, 32 Va. App. 459, 465, 528 S.E.2d 720, 723 (2000) (Bumgardner, J., concurring)).
Because it is a judge-made doctrine, we have been careful not to expand de facto awards beyond
their initial purposes and parameters. Id. at 415, 702 S.E.2d at 599; Roske v. Culbertson Co., 62
Va. App. 512, 523, 749 S.E.2d 550, 556 (2013).
1 Employer argues that the dispute over the average weekly wage and its withdrawal of the signed agreement within the time allowed under Commission precedent compels a finding that there was no agreement as to compensability and that its successful defense of the claim dictates a finding that it timely contested the claim. The Commission agreed with employer on both issues. Given our determination that a de facto award is inappropriate because claimant did not detrimentally rely on the conduct of employer, we need not reach these issues. -8- The doctrine was created to address a situation in which an employer’s voluntary
payments without the entry of an award caused an unwitting claimant to forfeit his claim or
otherwise prejudice his rights under the Act. Thus, it always has been grounded in principles of
estoppel. Roske, 62 Va. App. at 521, 749 S.E.2d at 555 (holding “that the concept of a de facto
award is grounded in the well-established principle of estoppel”); McGuinn, 5 Va. App. at
271-72, 362 S.E.2d at 190 (imposing a de facto award because “the doctrine of estoppel may
appropriately be invoked” under the facts of the case).
To establish estoppel, a party must establish that he relied to his detriment on the
representations or conduct of another. See, e.g., Stanley’s Cafeteria, Inc. v. Abramson, 226 Va.
68, 73, 306 S.E.2d 870, 873 (1983); Ford Motor Co. v. Switzer, 140 Va. 383, 395-96, 125 S.E.
209, 212-13 (1924); Atlantic C. L. R. Co. v. Bryan, 109 Va. 523, 526, 65 S.E. 30, 31 (1909).
Detrimental reliance requires that “the party sought to be estopped must have caused the other
party to occupy a more disadvantageous position than that which he would have occupied except
for that conduct.” Roske, 62 Va. App. at 522, 749 S.E.2d at 555 (internal quotation marks and
citations omitted). Accordingly, the de facto award doctrine does not “apply where an employee
has neither suffered prejudice nor been placed in a more disadvantageous position as a result of
the absence of an actual award.” Id. at 523, 749 S.E.2d at 556; compare favorably McGuinn,
5 Va. App. at 271, 362 S.E.2d at 190 (holding that a de facto award was appropriate given that
employer’s conduct “misled [claimant] to his detriment” (emphasis added)).
Here, the record reveals that claimant was neither prejudiced nor placed in a more
disadvantageous position by employer’s voluntary payments or other conduct. As the
Commission found,
the claimant had preserved the statute of limitations by having already filed several claims. She was afforded a hearing on the merits of her case some five months after the agreement was withdrawn, thus [giving] her ample time to prepare. We do not -9- find the defendants’ decision to contest the claims at the evidentiary hearing unfairly prejudiced the claimant.
There is not even a suggestion that claimant’s ability to prove her case was in any way
prejudiced.2 In fact, she does not argue that she suffered actual prejudice, arguing instead that a
showing of prejudice was not required. Because such a showing always has been a requirement
for the application of the de facto award doctrine, Roske, 62 Va. App. at 523, 749 S.E.2d at 556,
the Commission did not err in concluding that the facts did not give rise to a de facto award.
II. Cause of the Injury
Appellant next challenges the Commission’s failure to conclude that the mop and bucket
caused or at least contributed to her fall and resultant injuries. As such, she challenges a factual
finding of the Commission as to the cause of her accident. “Decisions of the [C]ommission as to
questions of fact, if supported by credible evidence, are conclusive and binding on this Court.”
VFP, Inc. v. Shepherd, 39 Va. App. 289, 292, 572 S.E.2d 510, 511 (2002) (internal quotation
marks and citations omitted).
Here, the Commission determined that the cause of claimant’s fall and resulting injuries
was a non-defective rug that was lying flat at the time of the fall. The basis for this conclusion
was claimant’s own testimony, from which the Commission concluded that claimant’s “injury
occurred when she tripped on a rug. The rug itself was not described as defective, and it was
2 At oral argument, claimant adopted the position of the dissenting commissioner, who theorized that “a claimant who has signed agreements prepared by the employer and received ongoing wage benefits for months” could suffer prejudice in a similar situation if he or she failed to market residual capacity because the employer did not notify him or her of an obligation to do so. Specifically, he reasoned that “[n]o reasonable person who received wage benefits for a lengthy time and who signed an agreement prepared by the insurer confirming entitlement to that compensation would independently perceive a duty to market residual work capacity as condition to entry of an award.” Such hypothetical prejudice is not present in this case, where the claimant put on evidence of her marketing activities and the sufficiency of her marketing activities played no role in the Commission’s decision to deny her benefits. Furthermore, we note that the duty to market residual capacity arises only after a claimant suffers a compensable injury, see Code § 65.2-510; here the Commission found that claimant suffered no such injury. - 10 - lying flat on the floor at the time of the claimant’s accident. No foreign substances were alleged
to have contributed to the accident.” In short, claimant’s testimony provided credible evidence
from which the Commission could determine that her fall was caused by walking across a rug
and that the mop and bucket played no role in her fall or resulting injuries.
Claimant argues that there was evidence in the record that the mop and bucket were
involved in the accident. She cites her own statements and the testimony of the human resources
director, arguing that references to the mop and bucket require a finding that the mop and bucket
caused or contributed to the accident and resulting injury.
The Commission, as factfinder, was free to reject the evidence that might suggest that the
mop and bucket caused or contributed to the fall and resulting injuries as opposed to merely
being present when the fall and resulting injuries occurred.3 “The fact that contrary evidence
may appear in the record ‘is of no consequence if there is credible evidence to support the
[C]ommission’s finding.’” Dollar Gen. Store v. Cridlin, 22 Va. App. 171, 177, 468 S.E.2d 152,
155 (1996) (quoting Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991)). Claimant bore the burden of proof, Shepherd, 39 Va. App. at 292-93, 572 S.E.2d at
512, and thus, was required to convince the Commission that the mop and bucket actually played
a role in her fall and resultant injuries, not that they might have. We cannot say that the
Commission erred in finding that the evidence did not compel such a conclusion.
III. Injury Arising Out of Employment
Finally, claimant argues that the Commission erred in concluding that her injury did not
arise out of her employment. Specifically, she argues that the Commission erred in concluding a
condition of her workplace did not contribute to her fall.
3 Claimant offers no explanation as to how grabbing a mop with her right hand as she was falling caused an injury to her left thumb. - 11 - Whether an injury arises out of . . . employment involves a mixed question of law and fact, which we review de novo on appeal. Accordingly, although we are bound by the [C]ommission’s underlying factual findings if those findings are supported by credible evidence, . . . we review de novo the [C]ommission’s ultimate determination as to whether the injury arose out of the claimant’s employment.
Snyder v. City of Richmond Police Dep’t, 62 Va. App. 405, 411-12, 748 S.E.2d 650, 653-54
(2013) (internal quotation marks and citations omitted).
For an injury to arise out of employment, it must have been caused by an actual risk of
the employment as opposed to a risk that the claimant would face in carrying out day-to-day
activities apart from the employment. “The actual risk standard . . . 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.” Bernard v. Carlson Companies-TGIF, 60 Va. App. 400, 405-06, 728 S.E.2d
508, 511 (2012) (internal quotation marks and citations omitted).
The classic example of an injury being caused by a risk of the neighborhood as opposed
to arising out of the employment is an employee tripping while traversing a set of stairs. It has
long been recognized that, “[e]ven though the employer provided the steps, and encouraged the
employee to use them, if there is ‘nothing unusual about or wrong with the steps,’ an employee
who trips over them cannot show the accident ‘arose out of’ the employment.” Id. at 407, 728
S.E.2d at 511 (quoting County of Chesterfield v. Johnson, 237 Va. 180, 185-86, 376 S.E.2d 73,
76 (1989)); see also Southside Va. Training Ctr. v. Ellis, 33 Va. App. 824, 829, 537 S.E.2d 35,
37 (2000) (holding that “[s]imple acts of walking, bending, or turning, without any other
contributing environmental factors, are not risks of employment”).
We perceive no meaningful difference between an employee tripping on ordinary,
non-defective stairs and tripping while walking across a flat, non-defective rug. Absent some
- 12 - defect or other exceptional circumstance, tripping while walking on a flat rug is a risk that an
employee faces both in and out of the employment setting.4 Accordingly, given its factual
findings, the Commission correctly concluded that claimant’s injury did not arise out of her
employment.
CONCLUSION
For the foregoing reasons, we affirm the Commission’s denial of benefits.
Affirmed.
4 With credible candor claimant recognizes this, noting that her arising out of argument “assumes . . . that the Commission erred in failing to find that the mop and bucket played a part in [claimant]’s accident and resulting injury.” Given our conclusion that the evidence supports the Commission’s finding that the mop and bucket did not cause or contribute to the fall and resulting injuries, claimant’s arising out of argument necessarily fails. - 13 -