Sunnyside Presbyterian Retirement, et al. v Royer

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Bumgardner and Senior Judge Baker
SUNNYSIDE PRESBYTERIAN RETIREMENT
COMMUNITY AND HEALTHCARE PROVIDERS
GROUP SELF-INSURANCE ASSOCIATION MEMORANDUM OPINION*
v. 	Record No. 0828-98-3 	PER CURIAM
AUGUST 18, 1998
PEARL D. ROYER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Cathleen P. Welsh; Wharton, Aldhizer &
Weaver, on brief), for appellants.
Appellants submitting on brief.
(A. Thomas Lane, Jr., on brief), for
appellee. 	Appellee submitting on brief.
Sunnyside Presbyterian Retirement Community and its insurer
(hereinafter referred to as "employer") appeal from a decision of
the Workers' Compensation Commission ("commission") holding that
Pearl D. Royer ("claimant") proved that she sustained an injury
by accident arising out of her employment on December 10, 1996.
For the following reasons, we reverse the commission's decision.
On December 10, 1996, claimant worked for employer as a
housekeeping assistant. 	Claimant usually exited from her
workplace straight out of the front entrance/exit doors and
through an archway without turning. 	But, on December 10, 1996,
claimant's husband, who was picking her up from work, had parked
his vehicle to the right of employer's business and down a hill.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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As claimant exited her workplace, she saw her husband's vehicle
at the bottom of the hill. 	As she turned to her right to walk
down the hill, she tripped over the corner of a rectangular
concrete planter located in front of a pillar, and fell.
Claimant stated that she caught the tip of her right foot and
that she was not looking at the planter at the time, although she
knew it was present. 	Claimant stated that, "I came out and I
just touched the top, just tipped it a little bit with my foot.
I didn't quite step out far enough. 	Raised my foot and I just
touched enough to trip me." 	She further stated: 	I just didn't
step away from them far enough. 	You know, I didn't look down to
say, oops, I've got to avoid this flower pot. 	I was just looking
to see if I could see my husband. 	And I thought I had got away
from it far enough, and I just touched it, barely touched it.
But it was enough to unbalance me.
Claimant had worked for employer for approximately six years
at the time of her injury, and she was aware of the planter's
location in front of employer's business. 	She admitted that the
area had adequate lighting and that there was nothing wrong with
the ground, the concrete, or the planter. 	As a result of her
fall, claimant alleged that she sustained a right shoulder
injury.
Dwight Miller, an architect familiar with the site of
employer's business, made a drawing of the entrance, showing the
location of the pillars, planters, and entrance/exit way.

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According to Miller, the placement of the planter did not violate
the building code or any custom in the area.
The commission, in reversing the deputy commissioner, found
that claimant's evidence proved that her fall arose from a
condition of her employment. 	The commission found that claimant
"identified the particular danger which caused her injury, i.e.,
a concrete planter designed to make the employer's building more
inviting to the public." 	Based upon this finding, the commission
concluded that "[t]here is therefore a nexus between her
employment conditions and her injury."
"The commission's decision that an accident arises out of
the employment involves a mixed question of law and fact and is
thus reviewable on appeal." 	Southside Virginia Training Ctr. v.
Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995).
"The claimant had the burden of establishing, by a
preponderance of the evidence, and not merely by conjecture or
speculation, that she suffered an injury by accident which arose
out of . . . the employment." 	Central State Hosp. v. Wiggers,
230 Va. 157, 159, 335 S.E.2d 257, 258 (1985). 	The claimant "must
show that a condition of the workplace either caused or
contributed to her fall." 	Shell, 20 Va. App. at 202, 455 S.E.2d
at 763. 	This analysis "excludes an injury which cannot fairly be
traced to the employment as a contributing proximate cause and
which comes from a hazard to which the [claimant] would have been
equally exposed apart from the employment." 	R & T Investments,

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Ltd. v. Johns, 228 Va. 249, 253, 321 S.E.2d 287, 289 (1984).
"[O]ur inquiry must be whether credible evidence supports a
finding that a defect . . . or a condition of [the claimant's]
employment caused her to fall down . . . and injure herself."
Shell, 20 Va. App. at 203, 455 S.E.2d at 763.
The planter was not, per se, a hazard of claimant's
workplace, and she was still required to prove that she tripped
over the planter as a result of an employment-related risk or
hazard. 	The uncontroverted evidence was that the planter was not
defective and that claimant was well aware of its location in
front of employer's business. 	No evidence proved that the
planter created a risk or hazard connected with claimant's
employment, or that the accident was caused by some facet of
claimant's job responsibilities. 	Accordingly, in the absence of
credible evidence that claimant's accident arose out of her
employment, the commission's ruling is reversed and the claim
dismissed.
Reversed and dismissed.