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Teacher’s injury was within scope of employment

Virginia Lawyers Weekly//October 29, 2018

Teacher’s injury was within scope of employment

Virginia Lawyers Weekly//October 29, 2018

A fourth-grade teacher’s fall from a school bus during a summer trip to visit students entitled her to workers’ compensation.


Claimant worked for employer as a fourth-grade teacher. In August 2016, while visiting incoming students at daycare centers and apartment complexes with other school personnel, claimant injured her ankles upon exiting the bus. Claimant was taken out of work until Nov. 8, 2016. When she returned to work, she worked only half days. Claimant then went on maternity leave on Dec. 9, 2016.

Based on the Aug. 30 incident, claimant filed a claim for benefits with the commission. Employer denied the claim, stating that the injury was not compensable under the Virginia Workers’ Compensation Act because the alleged accident did not arise out of or in the course of employment.

A hearing was held before a deputy commissioner. Over employer’s objections, Dano Holland, a structural and forensic engineer, testified as an expert to the standards applicable to step design under the international building code, the model for the Virginia Uniform Statewide Building Code. In the resulting decision, the deputy commissioner first noted that “[t]here is no dispute that the claimant’s injury was the result of an accident which occurred in the course of her employment.” After reviewing case law involving steps, the deputy commissioner concluded that claimant’s injury arose out of her employment and awarded benefits.

Employer sought review by the full commission. In its divided review opinion, the commission affirmed the deputy commissioner’s opinion.


Employer argues that the commission erred in concluding that the injury arose out of that employment and in the admission of and ultimate reliance on the expert testimony of Holland to aid in reaching that conclusion.

Falls on “normal” stairs are not compensable. Thus, given that claimant’s injury resulted from a fall on steps, she had the burden to establish that the steps were defective or otherwise “unusual” when compared to “the steps most people walk up and down on and off the job” almost every day.

Here, based on the evidence before it, the commission found as fact that the steps on which claimant fell were “unusual,” and therefore, not “normal building stairs.” Employer, echoing the opinion of the dissenting commissioner, responds that the steps were not unusual when judged against normal bus steps, stressing that the steps here met the applicable “Virginia School Bus Specifications.”

The premise underlying this argument does not alter the analysis. The fact that the steps might be “normal school bus steps” that meet certain guidelines does not make them a risk of the neighborhood. The relevant question thus becomes, whether an employee faces the hazards posed by school bus steps as often outside of employment as while on the job. The answer, of course, is no. Absent being a school system employee (and perhaps the occasional field trip), most adults do not encounter school bus steps at all let alone with the frequency necessary to render them a risk of the neighborhood. Thus, the commission did not err in concluding that claimant’s fall arose out of her employment.

Next, employer, citing the Virginia Rules of Evidence and appellate decisions regarding the qualification of experts in circuit court proceedings, argues that the commission erred “in finding that Dano Holland’s expert testimony was admissible and relying on Mr. Holland’s expert testimony.” We disagree. First, we note that neither the Virginia Rules of Evidence nor appellate decisions regarding those rules are binding on the commission regarding the admission of expert testimony. Accordingly, the commission has tremendous latitude in determining whether to admit and eventually rely on expert testimony in an individual case. Nothing about the commission’s decision to allow and eventually rely on Holland’s testimony offends these principles. Accordingly, the commission did not abuse its discretion in admitting and relying upon Holland’s testimony.


County of Henrico v. Collawn, Record No. 0406-18-2, Oct. 16, 2018. CAV (Russell) from Va. Workers’ Compensation Comm’n. Scott C. Ford for Appellants; Brody H. Reid for Appellee. VLW No. 018-7-258, 12 pp.

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