Opinion
Record No. 0263-92-4 Record No. 0399-92-4
September 29, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(John D. McGavin; Elaina Lell; Lewis, Trichilo, Bancroft McGavin, on briefs), for McDonald's Corporation, et al.
(James E. Swiger; Thacher, Swiger Cay, on briefs), for Amjad Malik.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Amjad Malik and McDonald's Corporation filed separate appeals to a January 27, 1992 decision of the Workers' Compensation Commission. Upon reviewing the record and briefs of the parties, we summarily affirm that decision, Rule 5A:27, but do so for reasons different than those stated in the commission's opinion.
Malik claimed injury arising from a fall on McDonald's stairway. Although the deputy commissioner was satisfied that the fall caused Malik's injury, she dismissed the claim, finding that the stairs were not a risk of the employment. Malik appealed the latter finding to the full commission; McDonald's filed no appeal. The commission, affirming the deputy's decision, found that the stairs were a risk of the employment, but that the medical evidence did not show causation.
McDonald's appeals the former finding (Record No. 0263-92-4). Malik contests the latter finding on the ground that, under Rule 2(A) of the commission's rules, it had no authority to address or disturb the deputy's causation ruling (Record No. 0399-92-4).
We first consider the commission's determination that the stairs were a risk of the employment. The facts are not in dispute on this point. Malik was descending the stairway when he slipped and fell down four or five stairs. There was no evidence of any substance on the stairway which could cause a slip, nor was there any peculiarity regarding the stairway which would promote a slip. The commission, however, stated:
The fact that Malik did not describe or identify whatever caused him to slip does not detract from the fact that the employer's stairway constituted a risk of the employment, and that, in this case, the slip, aided by gravity, caused the fall.
When an employee is injured on employer's stairway and the stairway is shown to have contributed to an injury, it is of no moment that strangers as well as employees are exposed to the same risk or that stairs are common in the neighborhood.
In summary, we find that all stairs are risks. Those encountered in the course of employment activity are employment risks. When a stairway contributes to accidental injury in the employment, it is an actual risk of the employment and the injury arises out of the employment. It is not necessary for a stairway to be architecturally unusual for it to constitute a risk.
This pronouncement is not in accord with the law of Virginia. The Supreme Court has stated:
An accident arises out of the employment when there is a causal connection between the claimant's injury and the conditions under which the employer requires the work to be performed. Under this test, an injury arises "out of" the employment when it has followed as a natural incident of the work and has been a result of the exposure occasioned by the nature of the employment. The causative danger must be peculiar to the work, incidental to the character of the business, and not independent of the master-servant relationship. The event must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.
United Parcel Serv. of America v. Fetterman, 230 Va. 257, 258-59, 336 S.E.2d 892, 893 (1985) (citations omitted).
In Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 159 S.E.2d 633 (1968), the Supreme Court upheld an award to a claimant who experienced a knee injury while ascending steps in the course of her employment. In Hosey, however, "something was unusual about the steps on which the injury occurred. They were slightly higher than normal. . . . That fact formed the critical link between the conditions of the workplace and the injury." County of Chesterfield v. Johnson, 237 Va. 180, 186, 376 S.E.2d 73, 76 (1989).
Here, there was nothing unusual about the steps. There was no "critical link between the conditions of the workplace and the injury." Accordingly, the injury did not arise out of the employment. We specifically reject the commission's per se pronouncement that "[stairs] encountered in the course of employment are employment risks." Such a per se rule is anathema to the actual risk doctrine.
Having determined that the injury did not arise out of the employment, we need not address the issue raised by Malik. Even were we to find that the commission violated its own rule in considering causation, Malik's claim would still fail.
For the reasons stated, we affirm the commission's decision.
Affirmed.