COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Frank and Huff UNPUBLISHED
Argued at Alexandria, Virginia
REPUBLIC AIRWAYS HOLDINGS, INC. AND CHUBB INDEMNITY INSURANCE COMPANY MEMORANDUM OPINION* BY v. Record No. 0003-14-4 JUDGE GLEN A. HUFF JUNE 17, 2014 CYNTHIA MILLER
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Dennis Boyd Cook (David Obuchowicz; Midkiff, Muncie, & Ross, P.C., on brief), for appellants.
(Eric S. Wiener, on brief), for appellee. Appellee submitting on brief.
Republic Airways Holdings, Inc. and Chubb Indemnity Insurance Company (collectively
“appellant”) appeal a decision of the Virginia Workers’ Compensation Commission
(“commission”) finding that Cynthia Miller (“claimant”) suffered a compensable injury. On
appeal, appellant asserts that the commission erred in finding that claimant’s injury was caused
by a risk of her employment “when [claimant] presented no non-speculative evidence showing a
causal connection.” For the following reasons, this Court affirms the commission’s ruling.
I. BACKGROUND
On appeal from the commission, “we review the evidence in the light most favorable to
the prevailing party.” R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d
788, 788 (1990). If supported by credible evidence, the commission’s factual findings are
“binding on appeal,” Tomes v. James City Fire, 39 Va. App. 424, 430, 573 S.E.2d 312, 315
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. (2002), “even though there is evidence in the record to support a contrary finding,” Morris v.
Badger Powhatan/Figgie Int’l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986). In
addition, the commission’s “conclusions upon conflicting inferences, legitimately drawn from
proven facts, are equally binding on appeal.” Watkins v. Halco Eng’g, Inc., 225 Va. 97, 101,
300 S.E.2d 761, 763 (1983). So viewed, the evidence is as follows.
Claimant was employed as a flight attendant for appellant based out of Ronald Reagan
Washington National Airport (“Washington National”). On August 6, 2009, she was on a
four-hour layover in Omaha, Nebraska with her final destination of Washington National. While
on layover in the Omaha airport, claimant stepped onto an escalator and her right foot slipped out
from under her, resulting in injuries. Claimant kept hold of the rail with her right hand and
pulled herself back to a standing position.
Before the deputy commissioner, claimant testified as follows:
Q: . . . [C]an you tell me what happened on the escalator?
A: I went to go down the escalator . . . I took hold of the rail [with my right hand], I stepped onto the escalator, and my right foot just kept going like there was something slick on the step.
Q: Was there something slick on the steps?
A: That’s been undetermined. I don’t know. I don’t know.
Q: Did it feel like it to you?
A: Absolutely.
Claimant subsequently reported the incident to her “gate agent” and “base manager” in Omaha
and flew to Washington National.
As a result of the fall, claimant was treated by Dr. J. Mark Evans (“Evans”) at
Commonwealth Orthopedics and was diagnosed with “a small tear involving the volar aspect of
the scapholunate ligament and some attenuation of the TFCC” in her right wrist. Evans reported
-2- that claimant’s injury resulted from claimant “going on an escalator . . . that the escalator was
wet and her right foot slipped on in [sic] front of her.”
On June 12, 2010, claimant filed a claim for benefits with the commission for her
injuries. Appellant defended against the claim on the ground that claimant did not sustain an
injury by accident arising out of and in the course of her employment. After an evidentiary
hearing, the deputy commissioner denied the claim for benefits, holding that claimant failed to
identify any hazard or condition of her employment that caused her fall. Claimant appealed to
the full commission, which reversed the deputy commissioner’s decision and held that “[w]e can
reasonably infer she slipped due to a slippery surface on a moving escalator.” Commissioner
Williams dissented from the full commission’s opinion, arguing that claimant’s testimony did
not describe a hazard or condition of her employment that caused her injury. This appeal
followed.
II. ANALYSIS
Appellant contends that the commission erred in finding that claimant’s injury arose out
of her employment. Specifically, appellant argues that there is “no non-speculative” evidence
showing a causal connection between claimant’s accident and a risk of her employment.
As this Court has previously noted:
[t]o qualify for workers’ compensation benefits, an employee’s injuries must result from an event “arising out of” and “in the course of the employment.” The concepts “arising out of” and “in the course of” employment are not synonymous and both conditions must be proved before compensation will be awarded.
Hill v. S. Tank Transp., Inc., 44 Va. App. 725, 729, 607 S.E.2d 730, 732 (2005) (citations
omitted). “An accident occurs in the course of employment when it takes place within the period
of employment, at a place where the employee may be reasonably expected to be, and while
[s]he is reasonably fulfilling the duties of [her] employment or is doing something which is
-3- reasonably incident thereto.” Prince v. Pan Am. Airways, 6 Va. App. 268, 271, 368 S.E.2d 96,
97 (1988) (emphasis added).
“[T]his Court applies the ‘actual risk’ test to determining if an injury arises out of
employment.” Simms v. Ruby Tuesday, Inc., 281 Va. 114, 122, 704 S.E.2d 359, 373 (1995)
(emphasis added). “Under the actual risk test, an injury comes within the Act only if there is a
causal connection between the employee’s injury and the conditions under which the employer
requires the work to be done.” Id. (citation omitted). “Whether an injury arises out of . . .
employment involves a mixed question of law and fact, which we review de novo on appeal.”
Blaustein v. Mitre Corp., 36 Va. App. 344, 348, 550 S.E.2d 336, 338 (2001) (citing Norfolk
Cnty. Hosp. v. Smith, 33 Va. App. 1, 4, 531 S.E.2d 576, 578 (2000)). Disposition of the present
case, however, turns on a pure question of fact: whether there was a slippery surface on the
escalator that caused claimant to slip. Once that question is answered, resolution of the legal
issue, whether the fall arose out of claimant’s employment, is not contested.
If supported by credible evidence, the commission’s factual findings “will not be
disturbed on review, even though there is evidence in the record to support a contrary finding.”
Morris, 3 Va. App. at 279, 348 S.E.2d at 877. “In determining whether credible evidence exists,
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Frank and Huff UNPUBLISHED
Argued at Alexandria, Virginia
REPUBLIC AIRWAYS HOLDINGS, INC. AND CHUBB INDEMNITY INSURANCE COMPANY MEMORANDUM OPINION* BY v. Record No. 0003-14-4 JUDGE GLEN A. HUFF JUNE 17, 2014 CYNTHIA MILLER
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Dennis Boyd Cook (David Obuchowicz; Midkiff, Muncie, & Ross, P.C., on brief), for appellants.
(Eric S. Wiener, on brief), for appellee. Appellee submitting on brief.
Republic Airways Holdings, Inc. and Chubb Indemnity Insurance Company (collectively
“appellant”) appeal a decision of the Virginia Workers’ Compensation Commission
(“commission”) finding that Cynthia Miller (“claimant”) suffered a compensable injury. On
appeal, appellant asserts that the commission erred in finding that claimant’s injury was caused
by a risk of her employment “when [claimant] presented no non-speculative evidence showing a
causal connection.” For the following reasons, this Court affirms the commission’s ruling.
I. BACKGROUND
On appeal from the commission, “we review the evidence in the light most favorable to
the prevailing party.” R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d
788, 788 (1990). If supported by credible evidence, the commission’s factual findings are
“binding on appeal,” Tomes v. James City Fire, 39 Va. App. 424, 430, 573 S.E.2d 312, 315
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. (2002), “even though there is evidence in the record to support a contrary finding,” Morris v.
Badger Powhatan/Figgie Int’l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986). In
addition, the commission’s “conclusions upon conflicting inferences, legitimately drawn from
proven facts, are equally binding on appeal.” Watkins v. Halco Eng’g, Inc., 225 Va. 97, 101,
300 S.E.2d 761, 763 (1983). So viewed, the evidence is as follows.
Claimant was employed as a flight attendant for appellant based out of Ronald Reagan
Washington National Airport (“Washington National”). On August 6, 2009, she was on a
four-hour layover in Omaha, Nebraska with her final destination of Washington National. While
on layover in the Omaha airport, claimant stepped onto an escalator and her right foot slipped out
from under her, resulting in injuries. Claimant kept hold of the rail with her right hand and
pulled herself back to a standing position.
Before the deputy commissioner, claimant testified as follows:
Q: . . . [C]an you tell me what happened on the escalator?
A: I went to go down the escalator . . . I took hold of the rail [with my right hand], I stepped onto the escalator, and my right foot just kept going like there was something slick on the step.
Q: Was there something slick on the steps?
A: That’s been undetermined. I don’t know. I don’t know.
Q: Did it feel like it to you?
A: Absolutely.
Claimant subsequently reported the incident to her “gate agent” and “base manager” in Omaha
and flew to Washington National.
As a result of the fall, claimant was treated by Dr. J. Mark Evans (“Evans”) at
Commonwealth Orthopedics and was diagnosed with “a small tear involving the volar aspect of
the scapholunate ligament and some attenuation of the TFCC” in her right wrist. Evans reported
-2- that claimant’s injury resulted from claimant “going on an escalator . . . that the escalator was
wet and her right foot slipped on in [sic] front of her.”
On June 12, 2010, claimant filed a claim for benefits with the commission for her
injuries. Appellant defended against the claim on the ground that claimant did not sustain an
injury by accident arising out of and in the course of her employment. After an evidentiary
hearing, the deputy commissioner denied the claim for benefits, holding that claimant failed to
identify any hazard or condition of her employment that caused her fall. Claimant appealed to
the full commission, which reversed the deputy commissioner’s decision and held that “[w]e can
reasonably infer she slipped due to a slippery surface on a moving escalator.” Commissioner
Williams dissented from the full commission’s opinion, arguing that claimant’s testimony did
not describe a hazard or condition of her employment that caused her injury. This appeal
followed.
II. ANALYSIS
Appellant contends that the commission erred in finding that claimant’s injury arose out
of her employment. Specifically, appellant argues that there is “no non-speculative” evidence
showing a causal connection between claimant’s accident and a risk of her employment.
As this Court has previously noted:
[t]o qualify for workers’ compensation benefits, an employee’s injuries must result from an event “arising out of” and “in the course of the employment.” The concepts “arising out of” and “in the course of” employment are not synonymous and both conditions must be proved before compensation will be awarded.
Hill v. S. Tank Transp., Inc., 44 Va. App. 725, 729, 607 S.E.2d 730, 732 (2005) (citations
omitted). “An accident occurs in the course of employment when it takes place within the period
of employment, at a place where the employee may be reasonably expected to be, and while
[s]he is reasonably fulfilling the duties of [her] employment or is doing something which is
-3- reasonably incident thereto.” Prince v. Pan Am. Airways, 6 Va. App. 268, 271, 368 S.E.2d 96,
97 (1988) (emphasis added).
“[T]his Court applies the ‘actual risk’ test to determining if an injury arises out of
employment.” Simms v. Ruby Tuesday, Inc., 281 Va. 114, 122, 704 S.E.2d 359, 373 (1995)
(emphasis added). “Under the actual risk test, an injury comes within the Act only if there is a
causal connection between the employee’s injury and the conditions under which the employer
requires the work to be done.” Id. (citation omitted). “Whether an injury arises out of . . .
employment involves a mixed question of law and fact, which we review de novo on appeal.”
Blaustein v. Mitre Corp., 36 Va. App. 344, 348, 550 S.E.2d 336, 338 (2001) (citing Norfolk
Cnty. Hosp. v. Smith, 33 Va. App. 1, 4, 531 S.E.2d 576, 578 (2000)). Disposition of the present
case, however, turns on a pure question of fact: whether there was a slippery surface on the
escalator that caused claimant to slip. Once that question is answered, resolution of the legal
issue, whether the fall arose out of claimant’s employment, is not contested.
If supported by credible evidence, the commission’s factual findings “will not be
disturbed on review, even though there is evidence in the record to support a contrary finding.”
Morris, 3 Va. App. at 279, 348 S.E.2d at 877. “In determining whether credible evidence exists,
the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make
its own determination of the credibility of witnesses.” Westmoreland Coal Co. v. Russell, 31
Va. App. 16, 20, 520 S.E.2d 839, 841 (1999). In light of these principles, this Court holds that
the record contains credible evidence to support the commission’s finding that there was a
slippery surface on the escalator that caused claimant to slip.
Although claimant was unable to identify a foreign substance upon which she slipped or
otherwise explain the slick surface, she testified before the deputy commissioner that it
“[a]bsolutely” felt like something slick was on the escalator. She also described the incident by
-4- testifying that when she stepped on the escalator “[her] right foot just kept going like there was
something slick on the step.” As the commission found, “[claimant’s] description [of the
accident] is not speculation. She knew something made her slip. . . . It was reasonable for her to
conclude that her foot slipped on something because she felt her foot move and she fell.” See
Halco Eng’g, Inc., 225 Va. at 101, 300 S.E.2d at 763 (The commission’s “conclusions . . .
legitimately drawn from proven facts, are equally binding on appeal.”). As no one other than
claimant testified as to the condition of the escalator on the day in question, claimant’s testimony
alone is sufficient to support the commission’s finding that claimant slipped on a slick surface on
the escalator.
Nevertheless, appellant relies on Pinkerton’s, Inc. v. Helmes, 242 Va. 378, 410 S.E.2d
646 (1991), to argue that claimant failed to prove her injuries arose out of her employment. In
Helmes, however, the claimant was admittedly unable to remember any of the surrounding
events and circumstances which may have caused the accident. Id. at 379, 410 S.E.2d at 647. In
fact, there was no evidence whatsoever regarding the circumstances of the accident other than
the fact that the accident occurred. Id. Consequently, the Supreme Court held that the evidence
failed to show that claimant’s injury arose out of her employment. Id. at 381, 410 S.E.2d at 648.
Conversely, in the present case, the record demonstrates that claimant has consistently asserted
and testified that there was a slippery surface on the escalator that caused her to fall. Thus,
appellant’s reliance on Helms is misplaced.
IV. CONCLUSION
Accordingly, this Court affirms the ruling of the commission because there is credible
evidence to support the commission’s finding that there was a slippery surface on the escalator
that caused claimant to fall.
Affirmed.
-5-