COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

MILDRED HACKNEY

v. Record No. 0012-96-3 MEMORANDUM OPINION
PER CURIAM
M P & M COAL CO., INC. APRIL 30, 1996
AND
LIBERTY MUTUAL INSURANCE COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Gerald F. Sharp; Browning, Lamie & Sharp,
on brief), for appellant.

(Todd G. Patrick; Deborah W. Dobbins;
Gilmer, Sadler, Ingram, Sutherland &
Hutton, on brief), for appellees.

Mildred Hackney appeals a decision of the Workers'
Compensation Commission denying her application for benefits.
Hackney contends that the commission erred in finding that her
April 4, 1994 fall down a stairway did not arise out of her
employment. Finding no error, we affirm.
During the course of her employment on April 4, 1994,
Hackney lifted a box of parts, measuring eighteen by twelve
inches in size, and began to descend the four rock steps of her
home. While carrying the box in front of her body, she "just
tumbled down the steps." As she did so, she fell and hurt her
knee. Hackney testified that she saw no foreign substance on the
steps, no defect in the steps, nor any condition which might have
caused her to fall.
"To prove the 'arising out of' element, [in a case involving
injuries sustained from falling down stairs at work,] [Hackney]
must show that a condition of the workplace either caused or
contributed to her fall." Southside Virginia Training Ctr. v.
Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995) (citing
County of Chesterfield v. Johnson, 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 Hackney proved, as a matter of law, that her
employment caused her injury, the commission's finding is binding
and conclusive on appeal. Tomko v. Michael's Plastering Co., 210
Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Although Hackney was performing a work-related activity when
her injury occurred, her evidence failed to show that any defect
in the steps or any condition peculiar to her workplace caused
her to fall down the steps and injure herself. Contrary to
Hackney's assertion on appeal, no evidence showed that carrying
the box prevented her from seeing the steps, that the box played
any role in causing her fall, or that the box created an added
risk peculiar to her employment. Therefore, we cannot find that
Hackney proved as a matter of law that her injury arose out of
her employment.
For the reasons stated, we affirm the commission's decision.
Affirmed. BENTON, J., dissenting.
I agree that the evidence in this case is lacking and fails
to develop several facts. However, such as it is, the evidence
proves that Hackney's fall arose out of her employment.
When Hackney fell and injured her knee, she was in the
course of her employment in a rural mining community. Hackney
testified that she fell while she was descending steps from the
porch to the ground and "carrying a big box" of parts that she
was required to deliver to her employer's mining operation. She
testified that she was "not good at [estimating the box's]
poundage" and said the box "was pretty heavy." Hackney
demonstrated the size of the box; however, her counsel stated on
the record only two dimensions, "Maybe 18 by 12 - inch."
Although that description obviously fails to describe a box,
Hackney did state that the box was "big" and that she was
"cradling it with [her] arms out in front of [her]" as she
descended.
In response to questioning by the deputy commissioner,
Hackney described the steps that lead to her porch as "big, round
-- some kind of big round pieces of rock." She further indicated
that the height "is two steps from the ground up to the porch."
In Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 159 S.E.2d
633 (1968), the following evidence proved an injury arose out of
the course of employment:
[I]n the course of her employment by
defendant, Mrs. Hosey was making a door-to-
door survey in the town of Woodstock to find
out whether the people were interested in
hospital insurance. She was going up the
steps to one of the homes and when she made
the final step, she said, "it was just like
my knee had caught and then it just snapped
just like a bone had broken in it" and she
felt a sharp, severe pain. These were rock
steps that she was ascending, on the corner
of a street and "they were just a little bit
higher than usual for a step."

This was around 4 p.m. on a very hot day
and she had nothing in her hand except some
papers as she went up the steps. She did not
know, she said, what caused her knee to twist
or turn "because it had never happened
before." She had worked at all kinds of
jobs, "and I have never had nothing like that
happen at any other time." She reported the
matter that evening to defendant's branch
supervisor, who later filled out an accident
report.

Id. at 569, 159 S.E.2d at 634.
Hackney's testimony that she was descending a step made of a
"big, round -- some kind of big round pieces of rock" while
carrying a box so large and heavy that she had to cradle it in
her arms was sufficient to prove facts "'apparent to the rational
mind upon consideration of all the circumstances, [that] a causal
connection [existed] between the conditions under which the work
is required to be performed and the resulting injury.'" Id. at
571, 159 S.E.2d at 635 (citation omitted). Her uncontradicted
testimony proved that the conditions of her workplace caused or
contributed to her fall. Bradshaw v. Aronovitch, 170 Va. 329,
335-36, 196 S.E. 684, 686 (1938). See also Marion Correctional
Treatment Center v. Henderson, 20 Va. App. 477, 458 S.E.2d 301
(1995)(a leg injury arose out of employment where a correctional
officer testified that he was observing a guard tower, rather
than the steps in front of him, when he descended stairs and
fell).
For these reasons, I would reverse the commission's denial
of an award to Hackney.

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