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et al.

OCTOBER 26, 1999

Record No. 2441-98-4





Present: Judges Benton, Annunziata and Senior
Judge Duff

Argued by teleconference


Nikolas E. Parthemos (Parthemos & Bryant,
P.C., on brief), for appellant.

Elisabeth M. Ayyildiz (Donald R. Morin;
Morin & Barkley, on brief), for appellees.

Russell D. Clay ("claimant") appeals
a decision of the Workers’ Compensation Commission
("commission") denying his claim for benefits. Claimant
contends that the commission erred in finding that he failed to
prove that he sustained an injury by accident arising out of his
employment on October 28, 1997. Finding no error, we affirm.

On October 28, 1997, claimant was employed by
the City of Winchester as a deputy sheriff. On that date, his job
duties required that he post papers on the front door of the
central entrance of an apartment building. To complete this task,
he ascended a flight of stairs, and taped the papers to the door.
The door was located approximately twenty-seven inches from the
top of the staircase. As claimant turned to leave, he fell before
his foot made contact with the first step.

In his recorded statement given less than 48
hours after his accident, claimant did not recall slipping or
tripping and did not know why he fell. After returning to the
accident site later and attempting to reconstruct the incident,
claimant testified that when he turned on the top landing after
posting the papers on the door, his foot was partially off the
top step. He then concluded that the leaf blowing activities on
the sidewalk below distracted his attention because he did not
wish to have debris blown in his eyes. He claimed that he reached
for a handrail as he started to fall, but there was no railing at
the top of the steps. He was holding a plastic tape dispenser in
his left hand and reached with his right hand. Claimant also
stated that because of understaffing, he was attempting to serve
as many documents as possible. He admitted that he was not in any
particular hurry, but stated that he frequently hurries while

In a written statement dated February 25, 1998,
John Knight, the building inspector for the City of Winchester,
reported that on November 3, 1997, he inspected the entrance
stairway where claimant fell. Knight concluded that the staircase
was in compliance with the "applicable sections of the 1996
Uniform Statewide Building Code."

"To prove the ‘arising out of’ element,
[in a case involving injuries sustained from falling down stairs
at work,] [claimant] must show that a condition of the workplace
either caused or contributed to [his] fall." Southside
Virginia Training Ctr. v. Shell
, 20 Va. App. 199, 202, 455
S.E.2d 761, 763 (1995) (citing County of Chesterfield v.
, 237 Va. 180, 184, 376 S.E.2d 73, 76 (1989)).
"Whether an injury arises out of the employment is a mixed
question of law and fact and is reviewable by the appellate
court." Plumb Rite Plumbing Serv. v. Barbour, 8 Va.
App. 482, 483, 382 S.E.2d 305, 305 (1989). However, unless we
conclude that claimant proved, as a matter of law, that his
employment caused his injury, the commission’s finding is binding
and conclusive on appeal. See Tomko v. Michael’s
Plastering Co.
, 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

Although claimant was in the course of his
employment when his injury occurred, his evidence did not show
that any defect in the stairs or any condition peculiar to his
workplace caused him to fall down the steps and injure himself.
Claimant’s evidence did not prove that the lack of handrails at
the top of the stairs was a defect or anomaly constituting a risk
of his employment nor did his evidence prove that the landing at
the top of the stairs was defectively narrow. Moreover,
claimant’s evidence did not prove that the lack of handrails or
the width of the landing caused him to fall.

Contrary to claimant’s assertion no evidence
proved that his fall was caused by his rush to serve as many
documents as possible during the day. Claimant admitted that he
was in no particular hurry on the day of his accident and that he
had no quota to meet. Moreover, no evidence proved that the
alleged distraction of city employees blowing leaves on the
sidewalk below constituted a risk of claimant’s employment or
caused his fall. In holding that this alleged "distraction
did not startle the claimant, nor prevent him from viewing the
staircase before beginning his descent," the commission
found as follows:

[C]laimant testified that he was aware
of the city workers blowing leaves when he ascended the
staircase. After taping papers to the door, he turned and
looked at the city workers in order to decide whether he
could descend the stairs without a danger of having
debris blown into his eyes. When asked, "And you
decided you could proceed down the steps?" Clay
responded, "That’s correct."

The commission also found that the distraction
was not a risk peculiar to claimant’s employment, but rather, was
common to the neighborhood. The commission’s factual findings are
amply supported by the record, and will, therefore, not be
disturbed on appeal.

Because no evidence showed a causal connection
between the conditions of claimant’s employment and his fall, we
are unable to find that he proved as a matter of law that his
injury arose out of his employment.

For these reasons, we affirm the commission’s


* Pursuant to Code ? 17.1-413,
recodifying Code ? 17-116.010, this opinion is not
designated for publication.



[1] Claimant relies on the
"street cases" in arguing that he incurred a risk of
distraction by city workers and of exposure to different types of
stairways because his employment required that he travel the
public streets. Claimant did not raise this argument before the
commission. Therefore, we will not address it for the first time
on appeal. See Kendrick v. Nationwide Homes, Inc.,
4 Va. App. 189, 192, 355 S.E.2d 347, 349 (1987); Rule 5A:18.