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Present: Judges Annunziata, Clements and Kelsey

Argued at Salem, Virginia

Record No. 3158-02-3








OCTOBER 7, 2003


H. Ashby Dickerson (Penn, Stuart & Eskridge, on brief), for


Paul L. Phipps (Lee & Phipps, P.C., on brief), for appellee.

Noah Horn Well Drilling ("NHWD") appeals a decision
from the Workers’ Compensation

Commission, claiming it erred by finding that Donald
Blankenship’s injury arose out of his

employment. Finding no basis to overturn the commission’s
factfinding on this issue, we affirm.


On appeal, we view the evidence in the light most favorable to
the prevailing party before

the commission. Clinchfield Coal Co. v. Reed, 40 Va. App. 69,
72, 577 S.E.2d 538, 539 (2003);

Tomes v. James City (County Of) Fire, 39 Va. App. 424, 429, 573
S.E.2d 312, 315 (2002).

Blankenship drove a Mack tank truck for NHWD. The truck had two
steps on the fuel tank

and a third step at the cab. The cab floorboard was about chest
high. Getting in the cab was

awkward because it required pulling on the handrail after
stepping on the first and then the second

step. The first step was about two feet from the ground,
approximately knee-high.

On October 15, 2001, Blankenship began to climb into the cab of
the truck to retrieve some

paperwork. He felt a sudden onset of pain while standing with
his right foot on the first step and his

left foot on the second, and while having one hand on the
handrail and the other on the door latch.

The pain radiated down his hip and left leg.

Though in some distress, Blankenship continued working for the
rest of the day.

Blankenship also worked the next day even though his injury felt
worse. The following day,

October 17, Blankenship drove his truck to a job site but could
not get out of the truck cab due to

intense pain. Blankenship returned to the office, spoke to his
boss, and then went to see a doctor.

Blankenship was diagnosed as having a herniated disc, requiring
surgery, in an area of his

lower spine (L5-S1). He had previously injured this area of his
back in 1997 and had successfully

returned to work after surgery. After reviewing this prior
condition and comparing it to his new

symptoms, Dr. Paul Peterson, a neurosurgeon, opined that the new
herniation at L5-S1 was the

"result of [the] new work related injury" on October
15, 2001, not the earlier injury.

After NHWD refused his claim for benefits, Blankenship filed a
claim with the commission.

A deputy commissioner rejected the claim, holding that the
injury did not result from an actual risk

of employment. On review, the full commission disagreed, finding
that "the unusual nature of the

tank-type steps and the awkward movement required to pull up
into the cab," when considered

along with the "immediate onset of pain," established
"sufficient employment risk to qualify as a

risk of the employment."

On appeal, NHWD admits that Blankenship’s description of the
incident, considered in the

light most favorable to him, proved "that the steps on the
truck were abnormal." The error in the

commission’s holding, NHWD argues, is its finding of causation.
"The fact that the claimant

testified to an immediate onset of pain establishes nothing
other than he may have suffered an

accident at this time," NHWD contends. No evidence
demonstrates, NHWD asserts, "that the

unusual nature of the steps into the truck either caused or
contributed to Blankenship’s injury."


We begin our analysis with the governing standard of review. On
appeal, we defer to the

commission in its role as factfinder. VFP, Inc. v. Shepherd, 39
Va. App. 289, 292, 572 S.E.2d

510, 511-12 (2002). "If supported by credible evidence, the
factual findings of the commission

are binding on appeal." Tomes, 39 Va. App. at 430, 573
S.E.2d at 315 (citation omitted). In

addition, the commission’s "conclusions upon conflicting
inferences, legitimately drawn from

proven facts, are equally binding on appeal." Watkins v.
Halco Eng’g, Inc., 225 Va. 97, 101, 300

S.E.2d 761, 763 (1983).


For an injury to be compensable, it must be "by accident
arising out of and in the course

of the employment." Code ? 65.2-101. "An injury
arises out of the employment when there is

apparent to the rational mind upon consideration of all the
circumstances, a causal connection

between the conditions under which the work is required to be
performed and the resulting

injury." K&G Abatement Co. v. Keil, 38 Va. App. 744,
756, 568 S.E.2d 416, 422 (2002)

(citation and internal quotation marks omitted). "’The
causative danger must be peculiar to the

work, incidental to the character of the business, and not
independent of the master-servant

relationship.’" Id. (quoting Chesterfield v. Johnson, 237
Va. 180, 183-84, 376 S.E.2d 73, 75

(1989), and United Parcel Serv. v. Fetterman, 230 Va. 257,
258-59, 336 S.E.2d 892, 893 (1985))

(internal quotation marks omitted). This test excludes any
hazard or danger "to which the

employee would have been equally exposed apart from the
employment." K&G Abatement Co.,

38 Va. App. at 756, 568 S.E.2d at 422.

An injury caused merely by using steps at work, by itself, is
not compensable. Grayson

Sch. Bd. v. Cornett, 39 Va. App. 279, 287, 572 S.E.2d 505, 509
(2002). To receive

compensation, the claimant must prove that some "defect in
the stairs" or that a "condition of the

employment caused the fall." Id. (citing Southside Va.
Training Ctr. v. Shell, 20 Va. App. 199,

203, 455 S.E.2d 761, 763 (1995)); see also County of Buchanan
Sch. Bd. v. Horton, 35 Va. App.

26, 29, 542 S.E.2d 783, 784-85 (2001). Common examples include
steps of "abnormal height or

condition," Cornett, 39 Va. App. at 287, 572 S.E.2d at 509,
or with a slippery surface, Jones v.

Colonial Williamsburg Found., 10 Va. App. 521, 524, 392 S.E.2d
848, 850-51 (1990). Even a

step "just a little bit higher than usual" can
constitute a risk of employment. Reserve Life Ins.

Co. v. Hosey, 208 Va. 568, 569, 159 S.E.2d 633, 634 (1968).

In this case, NHWD does not contest the commission’s finding
that the steps leading up

to the cab of Blankenship’s truck were "abnormal" and
that Blankenship experienced "an

immediate onset of pain" while climbing those steps. That
pain response, NHWD further

concedes, at least establishes that Blankenship "may have
suffered an accident at this time."

Nevertheless, NHWD concludes, no evidence proved that the
condition of employment (the

abnormal steps) caused the accident (a herniated disc triggering
radicular pain).[2]

We find NHWD’s position overly simplistic. In theory, of course,
had Blankenship not

been required by his job to negotiate "abnormal" truck
steps, he might still have injured his back

at that very moment —— perhaps, for example, as the result
of the exertion required to step on a

normal step. To prevail, however, Blankenship’s evidence need
not render this hypothesis

fanciful or reduce it to a remote improbability. He simply must
show it more likely than not to

be untrue.

Stated another way, he must prove by a preponderance of the
evidence that the

"abnormal" steps in some way caused the injury. A
claimant must prove by a "preponderance of

the evidence that an injury arose out of the employment."
K&G Abatement Co., 38 Va. App. at

755, 568 S.E.2d at 421-22.

The burden of showing something by a preponderance of the

evidence, the most common standard in the civil law, simply

requires the trier of fact to believe that the existence of a
fact is

more probable than its nonexistence before [he] may find in

of the party who has the burden to persuade the [judge] of the


Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers
Pension Trust for S. Cal., 508 U.S. 602,

622 (1993) (citations and internal quotation marks omitted);
Metro. Stevedore Co. v. Rambo,

521 U.S. 121, 137 n.9 (1997). Proof rises to this level of
persuasion when "it is made to appear

more likely or probable in the sense that actual belief in its
truth, derived from the evidence,

exists in the mind or minds of the tribunal, notwithstanding any
doubts that may still linger

there." N. Virginia Power Co. v. Bailey, 194 Va. 464, 471,
73 S.E.2d 425, 429 (1952); see also

Henrico County Sch. Bd. v. Etter, 36 Va. App. 437, 446, 552
S.E.2d 372, 376 (2001).

On this causation issue, the commission found that the
"unusual nature" of the steps

required Blankenship to exert an awkward combination of physical
movements to get into the

cab of the truck. While doing so, Blankenship experienced sudden
radicular pain in one of his

legs. This pain, as medical tests later demonstrated, came from
a herniated disc in Blankenship’s

lower back. In aggregate, these facts satisfied the commission
that the exertion required to climb

the "abnormal" truck steps was more likely than not
the cause of the back injury. This finding

also has the support of Dr. Peterson’s opinion that the
herniation was the "result of [the] new

work related injury" on October 15, 2001.

The commission’s findings parallel the situation in Reserve Life
Ins. Co., 208 Va. at 569,

159 S.E.2d at 634. There, an employee stepped onto a series of
"rock steps" that were a "little bit

higher than usual" and sustained a spontaneous knee injury.
No evidence demonstrated that the

employee slipped or tripped, and the employee admitted she
"did not know" what caused her

knee to give way. Id. Nevertheless, the abnormal nature of the
steps —— coupled with the

spontaneity of the knee injury —— provided a rational basis
for inferring causation. Because a

"rational mind" could find a causal connection under
such circumstances, the Virginia Supreme

Court held, the commission’s factual finding on causation must
be affirmed. Id. at 571, 159

S.E.2d at 635. The same conclusion applies here. See generally
K&G Abatement Co., 38 Va.

App. at 756, 568 S.E.2d at 422 ("’The actual determination
of causation is a factual finding that

will not be disturbed on appeal,’ if supported by credible
evidence." (citations omitted)).


We affirm the commission’s decision, finding it properly applied
the governing legal

principles and rested on a credible factual basis.




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


[2]We find
unpersuasive NHWD’s contention that Blankenship’s allegations of radiating

pain down one of his legs necessarily excludes as a cause of
that pain any exertional force from

using the other leg. No evidence in this record stands for the
assertion that nerve root

compression causing radicular pain on one side of the body
cannot physically be caused by a disc

herniation resulting from physical forces against the other side
of the body. To the contrary, by

implication, Dr. Peterson’s opinion refutes this assertion.