Virginia Lawyers Weekly VA Lawyers Weekly
A server at Kings Arm Tavern in Colonial Williamsburg who had been feeling pain in her foot and who suffered “excruciating pain” while carrying a 30-40 pound tray up a flight of stairs cannot collect workers’ comp for her ankle sprain and torn tendon and ligament; the Court of Appeals affirms the commission decision that claimant did not prove her injury arose out of her employment.
The mere happening of an accident at the workplace, not caused by any work-related risk or significant work-related exertion, is not compensable. There is no dispute that the injury here occurred in the course of claimant’s employment. The issue before us is whether it arose out of her employment.
Claimant acknowledges she did not stumble due to a defect in the stairs and neither did she slip on a foreign substance. Without more, an injury sustained while climbing or descending an ordinary flight of stairs does not arise out of the employment. No medical evidence directly establishes a causal connection between her injury and the conditions of her employment – but neither does it exclude the possibility of such causation.
In the face of claimant’s testimony concerning how the accident occurred, as well as the medical evidence before us, the commission properly declined to speculate regarding the cause of claimant’s injury. The evidence does not establish as a matter of law that the weight of the 30-40 pound tray and/or the way it was held contributed to the accident. In fact, no clear explanation emerges on this record. Like the commission, we conclude claimant did not meet her burden of proving that the accident arose out of her employment.
Denial of benefits affirmed.
Dianna v. Colonial Williamsburg Co. (McCullough) No. 0442-13-1, Nov. 5, 2013; Workers’ Comp. Comm’n; Stephen F. Forbes for appellant; Angela F. Gibbs for appellees. VLW 013-7-300(UP), 6 pp.
