Kenneth Reynolds v. Falletta Enterprises, Inc.

• Court: Court of Appeals of Virginia
• Decided: January 26, 2021
• Docket: 0796203
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Beales and Huff UNPUBLISHED

Argued by videoconference

KENNETH REYNOLDS MEMORANDUM OPINION* BY v. Record No. 0796-20-3 CHIEF JUDGE MARLA GRAFF DECKER JANUARY 26, 2021 FALLETTA ENTERPRISES, INC. AND MASSACHUSETTS BAY INS. CO.

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Hannah Bowie (Osterbind Law, PLLC, on brief), for appellant.

Brian M. Frame (McAngus Goudelock & Courie, PLLC, on brief), for appellees.

Kenneth Reynolds (the claimant) appeals a ruling of the Virginia Workers’

Compensation Commission denying his claim for benefits for injuries he sustained while

working for Falletta Enterprises, Inc. He argues that the Commission erred by concluding that

he failed to prove that his injury arose “out of” his employment as required for coverage under

the Virginia Workers’ Compensation Act. We hold that the record supports the Commission’s

ruling that the claimant did not prove that his injury arose out of his employment. Consequently,

we affirm the denial of benefits.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. BACKGROUND1

Kenneth Reynolds filed a claim alleging that he injured his left knee on August 1, 2019,

when he “[s]tepped out of the rear door of [a] work van” while working for Falletta Enterprises.

Falletta Enterprises and its insurer, Massachusetts Bay Ins. Co. (collectively the employer),

denied his claim for medical and wage loss benefits.

In a hearing before a deputy commissioner, the claimant described himself as a “service

plumber” who had worked in that capacity for more than twenty years. He testified in very

limited fashion about the circumstances surrounding his injury, which occurred when he stepped

out of his “work van.”2 He explained that he “g[o]t in the van through the back door,” collected

the necessary “stuff,” and returned to “the back.” The claimant “set down [his] tray” but “still

[had] stuff in [his] hand.” He then “stepped out of the van” onto the customer’s driveway.

When he did so, he felt a “twinge” in his left knee but had no “immediate[]” pain and concluded

that he was “all right.” He “[g]rabbed [his] stuff” and “went in[to] the house.” The claimant

confirmed that “the way [he] stepped out [of the truck] on August 1” was “the way [he] normally

step[ped] out of the truck” and was an activity in which he engaged repeatedly “throughout the

work day.” He stated that his left leg was very stiff by the time he completed the job, which he

described as “just a simple reconnect underneath the kitchen sink.”

The claimant further described his injury as “something moving in [his] knee that ha[d]

gotten separated, torn or something when [he] stepped out of that van.” He sought medical

treatment several weeks later when he experienced significant swelling. The claimant was

1 On appeal from the Commission, we view the evidence in the light most favorable to the prevailing party before the Commission, in this case the employer. See Apple Constr. Corp. v. Sexton, 44 Va. App. 458, 460 (2004). 2 Although the claimant referred to the van in this fashion, no evidence in the record establishes either that the van was provided by his employer or that he was required to use it. -2- diagnosed as having “primary osteoarthritis, with a Baker’s cyst,” in his left knee. He received

various conservative treatments, but when they failed to reduce his pain, a physician

recommended an MRI to determine whether he had a meniscus tear requiring surgical

intervention.

At the hearing, the employer defended in part on the ground that the evidence did not

prove that the claimant’s knee problem arose out of his employment. The deputy commissioner

found the claimant’s testimony “entirely reliable” and “credible” but held that the claimant failed

to meet his burden of proving an injury that arose out of his work as a plumber.

On request for review, the Commission unanimously affirmed the deputy commissioner’s

denial of benefits. Applying the case law applicable to an injury sustained while traversing

steps, it reasoned that no evidence concerning the circumstances under which the claimant exited

the vehicle supported the conclusion that a “work-related risk or significant work-related

exertion” caused the claimant’s injury.

II. ANALYSIS

The claimant contends that the Commission erred as a matter of law by holding that the

evidence failed to prove that his knee injury, which occurred when he stepped out of his work

van, arose out of his employment. He further suggests that the Commission improperly relied on

evidence concerning the manner in which he stepped out of the van, which he indicated was

“normal,” as barring a ruling that the injury arose out of the employment. We address these

assignments of error together, considering the second one as a component of the first.

The Virginia Workers’ Compensation Act provides coverage for injuries by accident that

“aris[e] out of and in the course of the employment.” Dollar Tree Stores, Inc. v. Wilson, 64

Va. App. 103, 108 (2014) (quoting Code § 65.2-101). Both “conditions must be satisfied before

compensation can be awarded.” King v. DTH Contract Servs. Inc., 69 Va. App. 703, 712 (2019) -3- (quoting Graybeal v. Bd. of Supers., 216 Va. 77, 78 (1975)). The arising “out of” and “in the

course of” requirements are distinct, and Courts “must be vigilant” not “to conflate the two

concepts.” Bernard v. Carlson Cos.—TGIF, 60 Va. App. 400, 405 (2012). The claimant bears

the burden of proving these elements “by a preponderance of the evidence, and not merely by

conjecture or speculation.” Cent. State Hosp. v. Wiggers, 230 Va. 157, 159 (1985) (per curiam).

“Whether an injury arises out of the employment ‘involves a mixed question of law and

fact . . . .’” Conner v. City of Danville, 70 Va. App. 192, 200 (2019) (quoting Blaustein v. Mitre

Corp., 36 Va. App. 344, 348 (2001)). This Court conducts a purely de novo review of the

Commission’s “ultimate determination as to whether the injury arose out of the claimant’s

employment.” Norris v. ETEC Mech. Corp., 69 Va. App. 591, 597 (2018) (quoting Stillwell v.

Lewis Tree Serv., 47 Va. App. 471, 477 (2006)). However, we review all facts and “‘all

inferences reasonably deducible [from those facts] in the light most favorable’ to [the] employer,

since it was the prevailing party below.” Mouhssine v. Crystal City Laundry, 62 Va. App. 65, 73

(2013) (quoting Bassett Furn. Indus. v. McReynolds, 216 Va. 897, 899 (1976)). The reviewing

court is bound by the Commission’s “underlying factual findings if [they] are supported by

credible evidence.” Norris, 69 Va. App. at 597 (quoting Stillwell, 47 Va. App. at 477).

Consistent with this well-established standard, when this Court “determin[es] whether credible

evidence exists,” it cannot “retry the facts, reweigh the preponderance of the evidence, or make

[its] own determination of the credibility of the witnesses.” Wilson, 64 Va. App. at 105 (quoting

Wagner Enters. v. Brooks, 12 Va. App. 890, 894 (1991)). This highly deferential standard of

review for factual findings applies “regardless of whether contrary evidence exists or contrary

inferences may be drawn” from the evidence. Rusty’s Welding Serv., Inc. v. Gibson, 29

Va. App. 119, 131 (1999) (en banc).

-4- “The phrase arising ‘in the course of’ refers to the time, place, and circumstances under

which the accident occurred.” Va. Emp. Comm’n v. Hale, 43 Va. App. 379, 384 (2004) (quoting

Cnty. of Chesterfield v. Johnson, 237 Va. 180, 183 (1989)). The “in the course of” element is

fairly easily satisfied and is not in dispute in this case. See Bernard, 60 Va. App. at 405

(recognizing that the “in the course of” element is the only one required for compensability

under the “positional risk” test); Johnson, 237 Va. at 184-85 (noting that under the “positional

risk” test, “simply being injured at work is sufficient” to establish compensability). The “arising

‘out of’” component “refers to the origin or cause of the injury.” Hale, 43 Va. App. at 384

(quoting Johnson, 237 Va. at 183). Virginia, by also requiring proof that the injury arose “out

of” the employment, “follows the ‘actual risk’ [test].” Bernard, 60 Va. App. at 405 (quoting

Taylor v. Mobil Corp., 248 Va. 101, 107 (1994)); see also id. (recognizing that requiring proof

only that the injury arose in “the course of” the employment is referred to as positional risk

doctrine). “The ‘arising out of’ prong of the statutory test is ‘to be liberally construed to carry

out the humane and beneficent purpose of’ the Act.” O’Donoghue v. United Cont’l Holdings,

Inc., 70 Va. App. 95, 103 (2019) (quoting Lucas v. Lucas, 212 Va. 561, 562-63 (1972)).

Nevertheless, an appellate court “cannot permit a liberal construction to change the meaning of

the statutory language or the purpose of the Act.” Am. Furniture Co. v. Doane, 230 Va. 39, 42

(1985), quoted with approval in Jeffreys v. Uninsured Emp.’s Fund, 297 Va. 82, 94 (2019).

Under Virginia’s actual risk test, “[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 . . . is not a causative hazard of the employment.’” Haley v. Springs Global U.S., Inc.,

54 Va. App. 607, 613 (2009) (quoting Nurses 4 You, Inc. v. Ferris, 49 Va. App. 332, 340-41

(2007)). “Simple acts of walking, bending, . . . turning,” or even climbing stairs, “without [proof

of] any other contributing environmental factors, are not risks of employment.” Id. (quoting -5- Nurses, 49 Va. App. at 341); see Johnson, 237 Va. at 186 (holding that the evidence supported

the Commission’s denial of benefits because “there was nothing unusual about or wrong with the

steps” on which the claimant fell and he was “injured by the mere act of turning”).

By contrast, “[a] step on a staircase or [one leading] into [the] cab [of a truck] can cause

an injury” arising out of the employment if either “that step has some defect” or some other

employment-related factor contributes to cause the injury. Haley, 54 Va. App. at 613. For

example, the Court upheld the Commission’s award of benefits to a prison guard who fell while

walking down an ordinary flight of stairs. See Marion Corr. Treatment Ctr. v. Henderson, 20

Va. App. 477, 481 (1995). The record in that case included evidence that “[o]bservation of the

guard towers was one of the security functions of [the guard’s] employment.” Id. at 480.

Further, the guard testified that when the accident occurred, he had “just acknowledged” one

tower, “was descending the stairs,” and had turned his attention to a different tower. Id. Based

on the Commission’s view of the evidence, it found that the guard’s “job responsibilities caused

him to watch the tower guards rather than the steps,” thereby “increas[ing] his risk of falling on

this occasion and directly contribut[ing] to cause his fall and injury.” Id. at 479-81. This Court

affirmed the Commission’s conclusion, based on its underlying findings of fact, that “how [the

guard] performed his job provided the ‘critical link’ between the conditions of the workplace and

the injury,” thereby satisfying the “aris[ing] out of” prong. Id. at 479-80.

We have also recognized that “even a step that is ‘just a little bit higher than usual’ can

constitute a risk of employment.” Nurses, 49 Va. App. at 341 (emphasis added) (quoting

Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 569 (1968)). For example, in Reserve Life

Insurance Co. v. Hosey, the Supreme Court of Virginia affirmed the Commission’s award of

benefits to a claimant injured while ascending an unfamiliar flight of stairs, which were made of

rocks and were just slightly higher than ordinary steps. 208 Va. at 569, 572. -6- However, simply because unusual steps or particular job duties can constitute a risk of

employment does not mean that all steps or all job duties do so as a matter of law. As this Court

has previously noted, in evaluating whether a claim arose “out of” the employment, “to a certain

extent each case must stand alone” because “[t]he facts in no two cases are identical.” Haley, 54

Va. App. at 614 (quoting Richmond Mem. Hosp. v. Crane, 222 Va. 283, 286 (1981)).

These principles dictate that we affirm the Commission’s denial of benefits for the

claimant here, just as this Court did in Haley v. Springs Global U.S., Inc., 54 Va. App. at 610-11.

In Haley, the employee was climbing the steps to the cab of his employer’s truck when his left

knee “gave way” with “no direct trauma,” and he was later diagnosed with a ruptured tendon. Id.

at 611. The evidence established that the first step was “shorter than a regular cab’s step[] but

higher than . . . a traditional step in a staircase.” Id. at 610. The evidence further indicated that

the employee “had probably used these steps into his [truck cab] about fifteen times that day with

no incident.” Id. Finally, the employee did not step “awkward[ly]” or slip, and “he did not

believe that ‘there [was] anything overly strenuous about stepping up onto the step.’” Id.

(second alteration in original). On those facts, the Commission concluded that the employee

failed to prove “that his injury ‘arose out of’ his employment,” and it denied his claim for

benefits. Id. at 611. On appellate review, this Court held that the Commission did not err in

ruling that the employee failed to meet his burden of proof “[g]iven the meager record” and the

Commission’s factual findings. Id. at 612.

Similarly in the instant case, the record supports the Commission’s conclusion that the

claimant’s injury did not arise out of his employment. The injury unquestionably arose in the

course of the claimant’s employment, but the facts in the record surrounding how he exited the

van and what work-related factors might have contributed to his injury are virtually nonexistent.

The claimant explained that he “g[o]t in the van through the back door,” collected the necessary -7- “stuff,” and returned to “the back.” He then “set down [his] tray” but “still [had] stuff in [his]

hand” as he stepped out of the van. The claimant gave no testimony about the height from which

he stepped out of the van and made clear that he “set down [his] tray” before doing so. Although

he indicated that he “still [had] stuff in [his] hand” when he “stepped out,” he did not elaborate

regarding what he was holding or how large or heavy the items were. Nor did he establish that

the size or weight of the items might have had a role in causing his injury, such as by throwing

him off balance as he left the vehicle or causing him to experience a more significant impact

with the ground than usual. In fact, to the contrary, the claimant testified that the manner in

which he exited the van was “normal,” testimony that he gave on both direct examination and

cross-examination. Finally, his testimony about the nature of the repair job itself was that it was

“a simple reconnect underneath the kitchen sink,” which also does not compel the conclusion

that he was carrying heavy tools, parts, or other equipment.

The deputy commissioner, although crediting the claimant as an “entirely reliable” and

“credible” witness, outlined the types of evidence that could have helped to establish that his

injury arose “out of” his employment but were absent from the record. He noted that the

claimant did not suggest that he “stepped down from an unusual height” or that some other

“environmental condition” or “complicating feature originating with work,” such as “uneven

pavement, an awkward or confined setting, insufficient light, distraction, [or] required pace,”

contributed to cause the injury. The deputy commissioner pointed to the absence of evidence

that the claimant’s act of holding his “tools and supplies[] as he moved . . . contributed to the

‘twinge’” in his left knee. He specifically noted that the claimant “did not describe the

materials.” He also observed that the claimant “did not suggest they were heavy [and] add[ed] to

his exertion” or that they were “cumbersome [and] increase[ed his] risk of a[] . . . misstep.” The

deputy commissioner further pointed out that the claimant “characterized” his action in “stepping -8- down from the van’s rear door as simply ‘normal.’” Based on the record before him, the deputy

commissioner concluded that the claimant failed to meet his evidentiary burden.

On review, the Commission recognized its authority to draw reasonable inferences from

the evidence, and it too concluded that the record was insufficient to permit it to infer that “any

work-related risk or significant work-related exertion” caused the injury. The Commission

explicitly rejected what it characterized as the claimant’s invitation to “imagine[] a person with

tools in one hand and plumbing materials in the other, maneuvering out of the back of a work

van by stepping down from an elevated height[,]’ thus[] creating a risk of the employment.”

(Emphasis added).

Based on the record before us, we hold that the Commission did not err in refusing to

draw speculative inferences from the evidence and concluding that the claimant failed to meet

his burden of proof. See Wiggers, 230 Va. at 159 (holding that a claimant does not meet his

burden of proving an injury arose “out of” his employment through “mere[] . . . conjecture or

speculation”). As explained in detail by the deputy commissioner, the record does not indicate

the height of the step required to exit the van or what the claimant was carrying, and the claimant

testified that his exit was “normal.” In light of the sparse record and the degree of deference

owed to the Commission’s factual findings, we conclude that the Commission did not err by

ruling that the claimant failed to prove that his injury arose out of his employment. Compare

Haley, 54 Va. App. at 610-12 (affirming the denial of benefits because evidence that the

employee did not slip or do “anything overly strenuous” while climbing stairs to his truck cab

supported the Commission’s finding that he failed to meet his burden of proof), with Nurses, 49

Va. App. at 339-40, 342-44 (affirming the award of benefits because the employee’s detailed

testimony and photos supported the Commission’s ruling that her fall on an unfamiliar, poorly

marked wheelchair ramp arose out of her employment). -9- III. CONCLUSION

Based on the record and the applicable law, we hold that the evidence supports the

Commission’s ruling that the claimant did not prove that his knee injury arose out of his

employment. Consequently, we affirm the denial of benefits.

Affirmed.

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