COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Al ston and Senior Judge Bumgardner Argued at Alexandria, Virginia

G4S GOVERNMENT SO LUTIONS, INC. AND NEW HAMPSHIRE INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No. 0641-14-4 J UDGE RUDOLPH BUMGARDNER, III NOVEMBER 25, 2014 BRENICE McDONALD

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION S. Vernon Priddy III (Cecil H. Creasey, Jr.; Two Rivers Law Group, P.C., on brief), for appellants. No brief or argument for appellee.
G4S Government Solutions, Inc. appeals an aw ard of benefits for a fall occurring in the workplace. The employer contends the accident did not arise out of a risk of employment and that Brenice McDonald did not provide statutoril y required notice of her accident. We conclude the accident did not arise out of a risk of employment. Thus , we reverse the commission’s decision. On appeal, we view the “evidence and all r easonable inferences that may be drawn from that evidence” in the lig ht most favorable to the party prev ailing before the commission. Artis v. Ottenberg’s Bakers, Inc., 45 Va. App. 72, 83, 608 S.E.2d 512, 517 (2005) ( en banc ). McDonald worked as a security officer. She explained that on July 7, 2011, she left her post to use a portable restroom located across the street from the security booth.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - After she used the restroom, McDonald was hot and did not want to return to the enclosure in which she worked. She sat next to the restroom on what she called a “Jersey wall.” The wall is “made out of brick” and approximately “seat height” with a flat top about twelve inches wide. She explained it was not unusual fo r employees to sit on the wall. Moments after sitting on the wall, McDonald lost her balance and fell backwards, striking her neck on the ground. McDonald informed her supervisor towards the end of July that she was experiencing pain and tingling in her left arm, but she did not tell her supervis or about the fall at that time. Concerned that she might be having “serious hear t issues,” McDonald sought medical treatment in early August. After learning her symptoms were related to he r fall, McDonald reported the accident to her supervisor. “In order to establish entitlement to compen sation benefits, the claimant must prove, by a preponderance of the evidence, an injury by accident which arose out of and in the course of his employment.” Classic Floors, Inc. v. G uy, 9 Va. App. 90, 95, 383 S.E.2d 761, 764 (1989). “The concepts ‘arising out of’ and ‘in the course of’ employment are not synonymous and both conditions must be proved before compensation will be awarded.” PYA/Monarch v. Harris, 22 Va. App. 215, 221, 468 S.E.2d 688, 691 (1996). Employer does not dispute that an accident occurred or that McDonald’s injury was sustained in the course of her employment. Em ployer argues only that the accident and resulting injury did not arise out of McDonald’s employm ent. “In determining whether an employee’s injury arose out of the employ ment, we apply the ‘actual risk test, which requires that the employment subject the employee to the particular danger that brought about his or her injury.’” Nurses 4 You, Inc. v. Ferris, 49 Va. App. 332, 340, 641 S.E.2d 129, 132 (2007) (quoting Smithfield Packing Co. v. Carlton, 29 Va. App. 176, 181, 510 S.E.2d 740, 742 (1999)).- 3 - “Whether an injury arises out of and in the course of employment involves a mixed question of law and fact, which we review de novo on appeal.” Blaustein v. Mitre Corp., 36 Va. App. 344, 348, 550 S.E.2d 336, 338 (2001) (citing Norfolk Cmty. Hosp. v. Smith, 33 Va. App. 1, 4, 531 S.E.2d 576, 578 (2000)). “A ccordingly, although we are bound by the commission’s underlying factual findings if those findings are supported by credible evidence, . . . we review de novo the commission’s ultimate determina tion as to whether the injury arose out of the claimant’s employment.” Stil lwell v. Lewis Tree Serv., 47 Va. App. 471, 477, 624 S.E.2d 681, 683 (2006). “A claimant’s injury arises out of the em ployment if the manner in which the employer requires the work to be performed is causally rela ted to the resulting injury.” Southside Virginia Training Ctr. v. Ellis, 33 Va. App. 824, 828, 537 S.E.2d 35, 37 (2000). “An injury is not compensable me rely because it occurred during the performance of some employme nt duty if the act performed by the employee is not a causative haza rd of the employment. Simple acts of walking, bending, or turni ng, without any other contributing environmental factors, are not risk s of employment . . . . [These are risks] to which the general pub lic is equally exposed.” Id. at 829-30, 537 S.E.2d at 37. It is well established that a fall dow n stairs does not arise out of the employment without evidence of a de fect in the stai rs or evidence that a condition of the employment caused the fall. However, an injury sustained as a result of a step of abnormal height or condition is compensable. Grayson Sch. Bd. v. Cornett, 39 Va. App. 279, 287, 572 S.E.2d 505, 509 (2002) (citations omitted). In this case, McDonald failed to prove a cau sal connection between her work and her fall. She could not explain why she fell. She did not claim the fall was due to some inherent flaw or danger in the brick wall upon which she sat. Rather, McDonald’s only suggested explanation for her fall was the shortness of her legs. The co mmission concluded McDonald had “identified a- 4 - cause for her imbalance and her fall” and that he r “injuries arose out of her employment.” We disagree. McDonald merely stated that “[i]t just so happened my legs were a little shorter than the others.” She did not explai n how this could have caused her to lose her balance and fall off the wall. “The claimant [has] the burden of establis hing, by a preponderance of the evidence, and not merely by conjecture or speculation, that [she] suffered an injury by accident which arose out of and in the course of the employment.” Central State Hosp. v. Wiggers, 230 Va. 157, 159, 335 S.E.2d 257, 258 (1985). “To be compensable, an injury must grow out of the risks particular to the nature of the work. ‘Risks to which all pers ons similarly situated ar e equally exposed and not traceable to some special degree to the particul ar employment are excluded.’” Hercules, Inc. v. Stump, 2 Va. App. 77, 79, 341 S.E.2d 394, 395 (1986) (quoting Dreyfus & Co. v. Meade, 142 Va. 567, 570, 129 S.E. 336, 337 (1925)). While it is undisputed that McDonald fell, the evidence does not support the conclusion that a condition of the workplac e caused the accident. There wa s no persuasive evidence as to the cause of the claimant’s fall to link it suffi ciently to a condition of her employment. The commission erred in concluding McDonald establis hed her injuries were causally related to a compensable workplace injury because the evidence failed to establish the wall posed a particular risk to the claimant and not one to which the general public was exposed. The evidence here simply does not support the f actual inferences drawn by the commission. Because we find the commission erred in conc luding the accident arose out of a risk of employment, we need not address employer’s contention that the commission erred by finding McDonald provided the statutorily require d notice of her accident. See Podracky v. Commonwealth, 52 Va. App. 130, 134, 662 S.E.2d 81, 84 (2008) (“‘[A]n appellate court decides- 5 - cases on the best and narrowes t ground available.’” (quoti ng Luginbhyl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) ( en banc ))). The decision of the commission is reversed. Reversed.