Va. Employee’s Injuries Sustained While Moving Under Descending Door Are Compensable
In an opinion not designated for publication, the Court of Appeals of Virginia affirmed an award of workers’ compensation benefits to an employee of an auto dealership who sustained injuries when he tripped and fell while trying to step under a descending service bay door to turn off a light [Magic City Ford Lincoln Isuzu Trucks v. Kerr, 2021 Va. App. LEXIS 160 (Aug. 31, 2021)]. Stressing that there was evidence from which the Commission could have found that the employee’s movements at the time of the injury were “unusual and awkward,” the court found the employer’s arguments to the contrary unpersuasive.
Background
Kerr worked as an auto detailer at the auto dealership. Closing the detailing shop was part of his regular duties. On the evening he sustained his injuries, Kerr pressed the button to close the bay door and stepped outside as the door began to close. He looked back and believed he saw a light on inside. Since Kerr did not have a key to the building, he quickly stepped sideways under the descending bay door to get back inside before it closed, since part of Kerr’s job was making sure the lights were off before closing the shop.
Evidence indicated that it takes only sixteen seconds for the bay door to fully close. The ground at the threshold of the bay door had a one- to two-inch rise over eleven inches. As Kerr stepped under the closing door, his left foot dragged on that incline and he tripped and fell onto the garage floor. He injured his right hip and femur in the fall. He was diagnosed with a right femoral neck injury that required surgery. After two hearings, the found that Kerr’s injuries were compensable and the Commission affirmed.
Decision on Appeal
On appeal, the employer pointed out that the floor was not cluttered with debris. The floor wasn’t wet. Kerr had no tools or other items in his hands as he stepped back inside and tripped. The employer also minimized the significance of the slope upon which Kerr tripped and asserted that Kerr had no reason to move in a rushed or awkward manner.
The Court did not find the distinctions that the employer had emphasized to have significant persuasive value. The Court added that there was no question that turning out the lights before closing the shop was part of Kerr’s duties. The record also supported a finding that Kerr had to move quickly, as the bay door fully closes in sixteen seconds, which meant that Kerr had less time than that to step under the closing door and clear it. The Court said that it also stood to reason that, in moving quickly to avoid being locked out, while crouching and stepping sideways under a closing door, Kerr’s movement was not ordinary, but unusual and awkward.
Moreover, assessing the significance of the slope of the floor required consideration of all the circumstances, which included Kerr’s moving quickly and in an awkward, crouching sidestep, which was distinct from more ordinary movements such as walking. Reviewing the evidence in its totality, the Court found that a rational mind could conclude there was a causal connection between the conditions under which the work was required to be performed and the resulting injury. Therefore, the Commission did not err as a matter of law in finding Kerr’s injuries arose out of his employment and in affirming the award of temporary total disability benefits.
Comment on Virginia Law
Those outside the Commonwealth of Virginia might read this case and scratch one’s head as to how an employer could reasonably contest compensability. Bear in mind, however, that Virginia courts take quite seriously the notion that the risk of injury must actually arise from the employment. Employing what the Virginia courts call the “actual risk” doctrine, compensation is payable only when the risk of injury is said to spring from some condition of the employment that is not commonly found outside the workplace. Accordingly, as I have reportedhere,here, and here, when an employee sustains injuries in a slip and fall on unobstructed floors or when walking up or down unobstructed steps, no compensation is ordinarily paid. The rationale: Those sorts of activities are not peculiar to the employment, but common in everyday life. Here, the Court did not mention Virginia’s actual risk doctrine. That doctrine was most certainly in the background, however.