Employers are regularly reminded by insurance carriers and defense attorneys that they should gather detailed evidence surrounding the circumstances of an accident. Recent case law highlights the importance of even the most minute details. The Virginia Workers’ Compensation Commission follows the “actual risk test.” The test, which is highly fact-specific and subjective, is outlined as follows: 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. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises “out of” the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. Conner v. Bragg, 203 Va. 204, 123 S.E.2d 393 (1962). The Virginia Supreme Court repeatedly has held that a claimant must prove by a preponderance of the evidence that the employment at least in part caused her injuries. The following recent opinions highlight the need for employers and claims handlers to be incredibly detail oriented when gathering statements from injured workers about the circumstances of their accidents as well as gathering facts regarding the job duties and activities from employers, managers, and employees. CASE LAW UPDATES: Ennis v. The Salvation Army (bending with item in hand) JCN VA02000024968 10/19/17 Claimant employed as a cashier with additional responsibility for stocking the Employer’s shelves. On June 9, 2016 she felt a pop in her back while bending down to place a pair of men’s shoes she was holding onto the bottom shelf of a merchandise rack. The shelf was near the floor. Deputy commissioner referred to this as a “close case” but awarded benefits based on finding that “the shelf was near the floor and . . . she was required to bend over to place the shoes on such a low shelf, we find was a sufficient work-related condition and exertion to constitute a risk of her employment.” A divided Commission reversed and dismissed the claim, noting: “Here, the claimant did not engage in any significant exertion, her action of bending did not involve any awkward position, nor did any condition peculiar to her workplace cause her injury. Although she was performing a work-related activity when the injury occurred, there was no condition of the workplace or additional exertion necessitated by work, aside from the usual act of bending to place an item on a shelf. Therefore, we do not agree that the claimant’s injury arose out of her employment. [T]he claimant failed to provide evidence that her movement was awkward or involved any significant physical stress or strain; she was not twisting, pivoting, reaching, turning or lifting a significant weight. Therefore, her act of simply bending did not arise out of her employment.” Keister v. Rockingham Memorial Hospital (bending and twisting) JCN VA00001054688 4/3/17 The claimant, a patient care technician, testified at the evidentiary hearing that she was standing next to a patient who was sitting in a wheelchair at the registration desk of the hospital, and she noticed that the patient’s left foot was off of the wheelchair’s footrest. The claimant testified that she “turned slightly” and “bent over from the waist . . . to pick up the foot and place it back on the footrest.” She indicated, “As I was lifting the foot with my hands under her slipper, as I was lifting the foot, that’s when the pain- I experienced the pain in my lower right groin area and then it went around to my back.” She further explained, “I lifted [the foot] up and then I had to twist you know, put it, bring it to her right and put it back on the footrest.” She confirmed that she felt pain “[a]s she was lifting up on the foot.” The claimant indicated that the patient was not “a very large lady.” She agreed the patient’s foot was not heavy, her foot was right next to the footrest and it did not take any effort to bend over and put her foot on the footrest. She testified that she was not in a hurry, and the area in which she was working was a wide-open space. The Deputy Commissioner held, in part: The factual scenario presented in the case at bar makes a decision in this matter an extremely close call. There was no proof that the claimant was engaging in any meaningful exertion and her testimony was that she was not working in an unusual or awkward position for any extended period of time. However, as a part of her job, the claimant was bending and lifting a patient’s foot, an action not routinely undertaken by the public at large. Further, although the weight of the foot and slipper was not substantial, the Commission finds that the positioning and action undertaken created a sufficiently awkward movement to meet the injury by accident test. Further, although the claimant apparently indicated to some physicians that she was lifting a patient, she credibly testified, under oath, and potentially against her own interest, that she was simply moving the patient’s foot. Under all of the circumstances presented, the Commission finds that the claimant's injury is compensable. A majority of the Commission reversed, finding that the claimant had failed to establish an injury by accident arising out of her employment. A majority recognized that the Deputy Commissioner found the claimant “credibly testified, under oath, and potentially against her own interest, that she was simply moving the patient’s foot,” and did not disturb the finding of credibility on review. Nonetheless, based upon the claimant’s testimony at the hearing and deposition, it found that the claimant had not met her burden of proving that her action of bending over and lifting the patient’s foot to the wheelchair footrest was a sufficiently awkward movement to constitute a compensable injury by accident. Accordingly, it concluded that the claimant’s injury did not arise out of her employment. Nelson v. Town of Christianburg (arising and twisting) JCN VA00001084096 1/31/17 At the hearing, the claimant testified that on the day of the accident, he had finished monitoring a water meter (which was two-feet deep in the ground) and began to move to the next one. He explained that “I was kneeled down on my knees and rising to stand.” The claimant said that when he rose, “I twisted to my right, that’s when something popped in my back.” The Deputy Commissioner denied benefits and a majority of the full Commission affirmed, stating: In this case, the claimant candidly testified that while arising from a kneeling position, he felt a pop in his back. He estimated that he had nearly reached a vertical position and was also turning towards his truck. He did not know what caused the injury. He was in an open and flat area when he rose and turned to move toward his truck and was not in a confined space or awkward position when he did so. This evidence simply fails to establish that any work-related risk or hazard resulted in the injury. Rather, the claimant merely arose from performing an occupational duty while in a squatting position. Tierney v. Colonial Williamsburg Found. (fall on steps) JCN VA00001170031 5/30/17 The claimant fell while descending a set of steps that were made of stone. The steps were described by witnesses as unevenly worn and more slippery than those covered with an abrasive tread. They did not have a railing. After reviewing the pictures submitted, however, the Commission did not find that they were defective, nor was it established that a foreign surface was on them at the time of the claimant’s accident. In order to be compensable, the claimant must demonstrate that another condition of her employment caused the injury. The claimant worked as a historical interpreter. The clothing that she wore on duty must be appropriate for the colonial period, which at the time of the claimant’s injury included a long dress, petticoat, and cloak. The claimant submitted photographs, including one of her in costume on the steps where she fell. When on the steps, the claimant’s skirts and cloak bunch up and drag upon the stair’s treads. It also appeared that the claimant could not see her feet when ascending or descending stairs. The claimant testified that when she was descending the stairs in question, she had placed her left foot “securely on the third step,” but when she attempted to move her right foot to the same step her “clothing got tangled in [her] right foot and knee.” This caused her left foot to slide because “something [was] under it, my petticoat or the cloak.” The Deputy Commissioner noted that the claimant was a credible witness and found the clothing the claimant was required to wear for her job created a risk of employment that caused her fall. On review, the defendant first argued that the hemline on the claimant’s costume was not intended to drag below her ankle and that she could have had it tailored at the employer’s design center. The Commission did not find this argument persuasive because, as the claimant correctly stated, negligence or assumption of risk are not defenses in a workers’ compensation claim. In addition, the claimant was not walking on level ground when her clothing became entangled; she was on stairs, which due to their height differential would necessarily cause parts of her costume to drag upon the treads. The defendant next argued the claimant had not advanced the theory that she fell because her clothing became entangled with her feet when she reported the injury or when she spoke to the employer’s workers’ compensation supervisor, which, therefore, served to weaken her credibility. With regard to the initial report of injury, there was not an extensive section for detailing how the incident occurred. Due to the seriousness of her broken wrist and the amount of pain she was experiencing, the claimant quickly sought medical treatment. The Commission found it not unreasonable that the claimant would provide an abbreviated or incomplete version of the mechanics of her accident. The Commission noted, several other witnesses testified that the dress and petticoats worn by employees could become tangled on their lower limbs, particularly when on stairs. The Deputy Commissioner’s award of benefits was affirmed. Hickey v. Roanoke County (fall on steps, item in hand preventing handrail use) JCN VA00001264846 6/19/17 Claimant was descending a bleacher in the course of her employment. She testified that as she proceeded to step down from one step to another, she either caught her heel or missed the step, but she was not sure which. The bleacher steps were not defective, nor was a foreign substance present thereon. However, the claimant testified that the handrail was on her right-hand side and a broom was in her right hand thus preventing her from arresting her fall. The claimant was unable to catch herself and prevent the injury because she was carrying a work item. A majority of the Commission affirmed the Deputy Commissioner’s Opinion that the claimant’s fall arose out of a risk of her employment. As you can tell from these recent decisions, Workers’ Compensation Commission findings on whether an accident “arose out of” the work frequently turn on minute details that are often overlooked in initial investigations and recorded statements. While these accidents are often very close calls and it’s difficult to predict which way the Commission will rule, the better the investigation the better your chances at a hearing and the better position you will be in for any settlement negotiations. Employer investigation takeaways:

• Obtain detailed recorded or written statement regarding any bending, twisting, pivoting, reaching, turning, lifting, or other awkward motions, or lack thereof;
• Obtain facts regarding the terrain in which incident occurred;
  • Flat? Muddy? Hilly? Wet? Greasy? Small or confined area? Stairs? Any defects?
• Get statement regarding what, if anything, was being held at the time of incident;
  • Did this item in any way cause or contribute to the accident?
  • Was it an item that prevented them from grabbing a hand rail?
  • Was it heavy, large, or awkward to carry?
• Memorialize with photos, or in writing, details of the injured workers attire;
  • Was he wearing the proper shoes required by employer?
  • Was he wearing other required safety items (safety glasses, safety hat, etc.)?
  • Was he wearing any forbidden items (sandals etc.)?
  • Did work-issued attire cause or contribute to injury in any way?
• Photograph the item being held (weigh item, if possible);
• Photograph the area in which accident occurred;
• Interview witnesses to dispute or corroborate statements of injured worker
• Follow-up and get an additional statement from injured worker a few days after the incident, as “missing details” from statements taken in the midst of pain and adrenaline can be used by the Workers’ Compensation Commission as a reason to excuse inconsistencies in accident details

Please contact Setliff Law at 804-377-1261 if you would like to discuss these issues, would like assistance setting up investigative protocols, or need advice regarding a recent work accident. Obtaining the perspective of legal experts in these matters early on could save you problems in the long run.