COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, McCullough and Senior Judge Haley Argued at Fredericksburg, Virginia

UNITED AIRLINES, INC. MEMORANDUM OPINION * BY v. Record No. 1169-15-4 J UDGE STEPHEN R. McCULLOUGH MARCH 15, 2016 BRYAN ANDREW TAYLOR

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Lynn McHale Fitzpatrick (Franklin & Prokopik, P.C. , on brief), for appellant. Kathleen Grace Walsh (Law Office of Kathleen Grace Walsh, on brief), for appellee.
United Airlines challenges the Commission’s finding that the claimant ’s injury arose out of his employment. We conclude that the ev idence does not support th e conclusion that the claimant’s injury arose out of the empl oyment and we, therefore, reverse.
BACKGROUND Bryan A. Taylor was employed as a ramp agent for United Airlines. His job duties included unloading baggage and cargo from ai rcraft. On December 25, 2013, he was unloading a plane. He walked up the metal clipper stairs or “jet bridge” with two strollers under his arms. Taylor estimated that the stroller in his righ t hand weighed 30 pounds, and was of the type he lifts eight or nine times per day. The stroller in his le ft hand was a small one that weighed about five pounds. He did not slip or trip, and he acknowledged that there was no defect with, or

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - debris on, the stairs. Instead, hi s right knee “popped” as he steppe d onto the third stair with his right leg and he fell down the stairs onto his back . His knee then popped back into place. He was diagnosed with a dislocated patella on his right knee. Tayl or had dislocated his right patella twice before, once when he was 16 and once when he was 17. The first time he dislocated his patella, he was pl aying basketball. The second time , he was helping a friend move a mattress on his head and his friend kicked his leg. At the time of the accident, he was 25 years old. The deputy commissioner denied benefits, explaining that [i]n the absence of any non-speculative attributable causal relationship to his employment, th ere is no evidence that the reason for the knee popping arose out of hi s employment. Therefore the claimant has not met his burden of proof, and the claim fails. The claimant appealed to the full Commissi on. The Commission reve rsed, finding that [w]e can infer from these facts, as well as the histories contained in the medical records, that the weight and bulk of the stroller, as well as the other lighter stroller under the claimant’s other arm, were conditions of the employment that caused or contributed to the claimant’s injury. Commissioner Williams dissented, writing that [w]e are not physicians, nor were we present at the time this incident occurred. In cases such as the present one, where no physician has indicated an increase d risk of injury, and where the claimant himself does not attribute his injury to a specific increased risk, I believe that a fi nding that the claimant’s injury arose out of his employment amounts to nothing more than speculation. The employer appeals from that decision.
ANALYSIS Under the Workers’ Compensation Act, an injured employee “must prove by a preponderance of the evidence that the injury arose ‘out of and in the course of the- 3 - employment.’” Lucas v. Fed. Express Co rp., 41 Va. App. 130, 133, 583 S.E.2d 56, 58 (2003) (quoting Code § 65.2-101). In determining whether an injury arises out of the employment, Virginia employs the “actual risk” test. “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 th e employment as a contributing proximate cause and which comes from a hazard to which the workman 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, a nd to have flowed from that source as a rational consequence.” Green Hand Nursery, Inc. v. Loveless, 55 Va. App. 134, 141-42, 684 S.E.2d 818, 822 (2009) (quoting Baggett & Meador Cos. v. Dill on, 219 Va. 633, 638, 248 S.E.2d 819, 822 (1978)). Thus, “[t]he mere happening of an accident at the workplace, not caused by any work related risk or signifi cant work related exertion, is not compensable.” Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). Instead, the claimant “must show that a condition of the wor kplace either caused or contributed to [the injury].” Southside Virginia Training Ctr./Commonwealth of Vi rginia v. Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995). In other words, “[a] ‘critical li nk’ must exist between the conditions of the workplace and the injury in order for the injury to qualify as ‘arising out of’ the employment.” Pinkerton’s, Inc. v. Helmes, 242 Va. 378, 380, 410 S.E.2d 646, 647 (1991). “The commission’s decision that an accident arises out of the employment involves a mixed question of law and fact and is thus reviewable on appeal.” Shell, 20 Va. App. at 202, 455- 4 - S.E.2d at 763. Furthermore, “[o]n appeal, we view the evidence in the lig ht most favorable to the . . . prevailing [party]” before the Comm ission. Tomes v. James City Fire, 39 Va. App. 424, 429, 573 S.E.2d 312, 315 (2002). First, there was no defect with respect to the stairs. Therefore, the line of cases addressing the compensability of a fall from defec tive or uneven stairs does not apply. See, e.g., Shell, 20 Va. App. at 202, 455 S.E.2d at 763. Se cond, the weight the claimant bore was not particularly heavy. He carried approxim ately 30 pounds under one arm and five pounds under the other. This stands in contrast to La mb v. F.H. Furr Plumbing, Heating & Air Conditioning, Inc., VWC File No. 212-74-88 (July 20, 2004), wh ere the Commission found that carrying a 70-75 pound bag over one shoulder contributed to the claimant’s injury. As a general proposition, the heavier the weight , the stronger the inference of a causal connection between the work conditions and the injury. There is no medical testimony or opinion of a causal connection be tween the conditions of employment and the injury. 1 The Commission also relied on the medical histories, but these medical histories came from the claimant himself, and he was consistent in his testimony and in his deposition about what occurred. The opera tive facts are essentially undisputed. The Commission rested its decision on an inference that the carrying of the strollers up the stairs established a causal relation between the accident a nd the conditions of employment. There is no doubt that the Commission can draw inferences fr om the facts before it. On these facts,

1 Dr. Anthony Avery stated that the claimant su ffered an “incident at work where he had another traumatic incident to th e knee that caused a patellar disloc ation.” The incident to the knee clearly caused the patellar disl ocation, but that is no t the same thing as st ating that the work conditions caused the accident. In other words, Dr. Avery’s statem ent is merely descriptive. Dr. Raymond Thal’s statement that “Taylor’s cu rrent condition and surg ery was causally related to the incident of December 25, 2013 ” is similarly descriptive. Dr. Thal does not indicate that there exists a causal link between th e working conditions and the injury.- 5 - however, we conclude that the inference of a connection betwee n the conditions of employment and the injury falls into the realm of specula tion. As Commissioner Williams noted, there is “nothing in the record to suggest that the dislocation would not have occurred, or would have been less likely to occur, if the claimant had been carrying nothing in his hands at the time of the incident.” Consequently, we conclude that the evidence fails to establish that the accident arose out of the claimant’s employment.
CONCLUSION We reverse the judgment of the Commission. Reversed.