Elizabeth O’Dea, Associate Attorney

Over the last few years, the Commission has issued numerous fact-specific opinions, specifically in cases where an injury involves stepping up or down staircases, into or out of buildings and vehicles, or onto steps, sidewalks, and curbs.  The number of cases involving these “stepping” circumstances has increased dramatically due to the reliance of individuals and businesses on delivery services during the COVID-19 pandemic.  As we have received many cases regarding various “stepping” injuries we thought it might be useful to discuss the compensability factors and the recommended initial questions/investigations regarding these types of claims.

Under the Virginia Workers’ Compensation Act, it is well-settled that in order to determine whether an injury arose of out employment, Virginia applies the “actual risk” test, meaning that there must be an employment-related risk which caused or contributed to the accident.  Generally, under Virginia’s actual risk test, simple acts of walking, bending, turning, climbing stairs, or stepping into a building or vehicle, without proof of any defect or other contributing environmental or employment-related factors, are not considered risks of employment.  However, adding factors such as high steps, rushing, weather, carrying a package, or even the awkward taking of a required photo to prove delivery may in some circumstances lead to a compensable workers’ comp injury.

A recent case from the Court of Appeals sheds some light on this issue: In Reynolds v. Falletta Enterprises, Inc., Record No. 0796-20-3 (Va. Ct. App. Jan. 26, 2021), the Court affirmed the Commission’s ruling that the claimant did not prove his injury arose out of his employment.  The claimant alleged that he injured his left knee when he “[s]tepped out of the rear door of [a] work van”.  In support of its decision, the Court noted that the record did not indicate the height of the step exiting the van or what the claimant was carrying at the time, and the claimant testified that his exit was “normal.”  The Court cited to numerous cases where it upheld the Commission’s compensability determinations based on specific factual findings, noting that “simply because unusual steps or particular job duties can constitute a risk of employment does not mean that all steps or all job duties do so as a matter of law. As this Court has previously noted, in evaluating whether a claim arose ‘out of’ the employment, “to a certain extent each case must stand alone” because ‘[t]he facts in no two cases are identical.’” (emphasis in original) (citation omitted).

The Court further noted that the Deputy Commissioner outlined in his judicial opinion the types of evidence which could have helped establish that his injury arose “out of” his employment, such as the unusual height of the step, an “environmental condition” or “complicating feature originating with work,” such as “uneven pavement, an awkward or confined setting, insufficient light, distraction, [or] required pace.”  However, the record lacked any evidence of similar facts to warrant a finding that the injury was compensable.

In Schweitzer v. Auto Chlor Systems, VWC File No. VA00001752385 (Sept. 22, 2021), the Full Commission, in a split decision, reversed the Deputy Commissioner’s denial of the claimant’s claim and found that the claimant sustained a compensable injury by accident.  The Commission distinguished the facts in Schweitzer from Reynolds, noting that the claimant exited the back of the van in an unusual manner and awkward position at an “exceptional height” of twenty-four inches from the ground.  The Commission found “without speculation” that the claimant’s injury resulted from the height of the step and the width of the bumper, which required the claimant to stretch his leg to an unusual degree.  Dissenting Commissioner Robert Rappaport opined that this case was analogous to Reynolds, noting that there is not sufficient evidence in this case to show the claimant’s actions were awkward or required any significant exertion.

Similarly, in Patterson v. Drake Extrusion, VWC File No. VA00001844703 (Mar. 30, 2022), the Full Commission, also in a split decision, reversed the Deputy Commissioner’s denial of the claimant’s claim.  In that case, the claimant alleged an injury while stepping from a tow motor step to the ground.  The Commission found that the evidence demonstrated the step was twenty-one inches from the ground, and the claimant sustained immediate pain when stepping down from the tow motor with all his weight on his foot.  The Commission held that the claimant injured his left knee “when he stepped down from an unusually high elevation placing all of his weight on his left foot,” and found that Claimant proved that the unusual height of the step was a hazard or condition of his employment and caused the knee injury.  Commissioner Robert Rappaport, again, dissented.  He noted, in pertinent part, that the Court of Appeals held in Reynolds that although unusual steps can constitute a risk of employment does not mean that all steps do so as a matter of law.

Given the increasingly fact-specific analysis applied by the Commission in these cases, we encourage employers, insurers, and claim administrators to involve defense counsel in the initial investigation and compensability assessment processes.  We will be happy to guide you through the most recent cases from the Commission, offer suggestions for on-scene investigations, photos, and documentary reports, develop specific questions for the recorded statement, and advise as to the chances of prevailing at hearing based on the unique facts of each case.  Compensability often hinges on what is documented within the first days after an accident, and we are here to help both employers and insurers with the investigation process.  We want our clients to avoid “stepping” into one of these cases without the evidence they need.  Please contact us to learn more, or to discuss any questions you may have.

This information is provided for general, informational purposes only and does not constitute legal advice or give rise to an attorney-client relationship of any kind between any reader/user and PennStuart or any of its attorneys.  Readers should contact their individual attorney for a determination whether this information is applicable or appropriate to their particular situation.