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THE LAKEHOUSE RESTAURANT/ZAK, INC., et al. v. TILLER




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THE LAKEHOUSE RESTAURANT/ZAK, INC., et al.

v.

TILLER


COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank

Argued at Salem, Virginia

Record No. 1237-03-3

THE LAKEHOUSE RESTAURANT/ZAK, INC. AND

AUTO-OWNERS INSURANCE COMPANY

v.

MADONNA ANN TILLER

 

MEMORANDUM OPINION[1]
BY JUDGE RUDOLPH BUMGARDNER, III

DECEMBER 2, 2003

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

E. Albion Armfield (John C. Johnson; Frith Anderson & Peake,
on

brief), for appellants.

No brief or argument for appellee.

Lakehouse Restaurant/ZAK, Inc. and Auto-Owners Insurance Company
appeal the

Workers’ Compensation Commission’s award of benefits to
Madonna Ann Tiller. It contends

the commission erred in finding that her injury arose out of the
employment and that her

disability was caused by the injury. Finding no error, we
affirm.

The commission’s decision that an accident arises out of the
employment is a mixed

question of law and fact reviewable on appeal. Blaustein v.
Mitre Corp., 36 Va. App. 344, 348,

550 S.E.2d 336, 338 (2001). The forty-six-year-old worker was
employed as a cook in the

employer’s restaurant. As the worker was going around a
corner, she slipped on a wet floor and

fell, injuring her right shoulder.

On June 27, 2000, the worker stated she fell "after closing
because the floor had just been

mopped." As she left the kitchen area to clock out, she
fell on the recently mopped floor.

Additionally, the ceramic tiled floor had been re-waxed and was
"really slick when wet."

In her deposition of January 15, 2001, the worker reiterated
that she fell when she came

around the corner. She confirmed that another employee had
mopped the floor, but believed that

the area where she fell may have been "dry at that
point." She added that the floor might have

been damp, but not soaking wet. She was not certain what the
substance on the floor was, and

suggested it might have even been grease from the mop used in
the kitchen.

The worker filed a claim for benefits on April 23, 2001. The
deputy commissioner

denied benefits on the ground that she failed to establish the
injury arose out of the employment

because she could not explain why she fell. The commission
reversed that determination, with

one commissioner dissenting. On remand, the deputy commissioner
found the worker’s

disability was causally related to her May 2, 2000 fall and
awarded compensation. The full

commission affirmed, with one commissioner dissenting because
the worker failed to prove the

injury arose out of the employment. The employer appeals.

"In Virginia, we employ the ‘actual risk’ test to
determine whether an injury ‘arises out

of’ the employment." Hill City Trucking, Inc. v.
Christian, 238 Va. 735, 739, 385 S.E.2d 377,

379 (1989). "Consequently, an accident arises out of the
employment when it is apparent to a

rational mind, under all attending circumstances, that a causal
connection exists between the

conditions under which the work is required to be performed and
the resulting injury." Lipsey v.

Case, 248 Va. 59, 61, 445 S.E.2d 105, 107 (1994).

While the worker was unable to state with certainty what caused
her fall, she consistently

claimed that something on the floor caused her feet to slip out
from underneath her when she

turned the corner. The floor had recently been refinished and
had just been mopped. Something

was on the floor, either water or grease. Nothing contradicts
this evidence and from the evidence

it is a reasonable inference that something on the floor caused
the worker to fall. The Workers’

Compensation Act does not require her to identify the substance,
and her honest claim that she

did not know what the substance was does not disprove the
existence of something on the floor.

The employer also contends the worker failed to prove her
disability was causally related

to her injury. "The commission’s determination regarding
causation is a finding of fact and is

binding on appeal when supported by credible evidence."
Marcus v. Arlington County Bd. of

Supervisors, 15 Va. App. 544, 551, 425 S.E.2d 525, 530 (1993).
"The testimony of a claimant

may . . . be considered in determining causation, especially
where the medical testimony is

inconclusive." Dollar General Store v. Cridlin, 22 Va. App.
171, 176, 468 S.E.2d 152, 154

(1996). Thus, the commission was free to consider both medical
evidence and the claimant’s

testimony in making this determination. She testified that she
had no shoulder problems before

the fall, and did not further injure that shoulder after the
fall date. The medical evidence did not

establish that her injuries were caused by the slip and fall in
May 2002. However, the history

recorded in her medical records from May 2, 2000 and June 15,
2000 are consistent with her

testimony and reflect that the injury resulted from the
work-related fall.

The worker injured her shoulder when she slipped and fell on a
wet floor at work.

Finding the evidence supports the commission’s decision that
her injury arose out of and in the

course of her employment and that her disability was caused by
that fall, we affirm the

commission’s decision.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


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