COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Bray 

Argued at Norfolk, Virginia 

TEAGLE & LITTLE, INC. 

and 

NATIONWIDE MUTUAL FIRE INSURANCE COMPANY 

v. Record No. 2270-94-1 MEMORANDUM OPINION* BY 

 JUDGE JERE M. H. WILLIS, JR. 

JAMES J. BALCHUNIS JULY 25, 1995 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Fay F. Spence (Spence & Whitlow, on brief), 

for appellants. 

 Jeffrey C. Flax (Kelberg, Childress and Flax, 

on brief), for appellee. 

 Teagle & Little, Inc. and Nationwide Mutual Fire Insurance 

Company (Teagle) appeal the decision of the Workers' Compensation 

Commission awarding benefits to James J. Balchunis. Teagle 

contends that Balchunis's injury did not arise out of his 

employment. Balchunis contends that Teagle's appeal should be 

dismissed because 1) the notice of appeal did not comply with all 

the requirements of Rule 5A:11, and 2) Teagle did not file a 

designation of the contents of the appendix as required by Rule 

5A:25. We deny the motion to dismiss, and finding no error, 

affirm the award. 

MOTION TO DISMISS 

 No appeal from an order of the Commission shall be 

allowed unless, within 30 days after entry of the order 

appealed from, . . . counsel files with the clerk of 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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the Virginia Workers' Compensation Commission a notice 

of appeal which shall state the names and addresses of 

all appellants and appellees, the names, addresses, and 

telephone numbers of counsel for each party, . . . and 

whether the appellant challenges the sufficiency of the 

evidence to support the findings of the Commission. 

Rule 5A:11(b). Balchunis argues that because Teagle's notice of 

appeal did not contain the addresses of both parties, the phone 

number of Balchunis's attorney, and whether Teagle was 

challenging the sufficiency of the evidence, its appeal should be 

dismissed for failure to comply with Rule 5A:11(b). Teagle's 

failure to include this information was a mere failure to perform 

a directory act and was not fatal to its appeal. See Zion Church 

Designers v. McDonald, 18 Va. App. 580, 445 S.E.2d 704 (1990); 

see also Johnson v. City of Clifton Forge, 7 Va. App. 538, 375 

S.E.2d 548 (1989), aff'd on other grounds, 9 Va. App. 376, 388 

S.E.2d 654 (1990). 

 Balchunis also argues that because Teagle did not file a 

statement of questions to be presented and a designation of the 

contents to be included in the appendix as required by Rule 

5A:25(d), its appeal should be dismissed. Failure to designate 

the contents of the record under Rule 5A:25(d) "is not ground for 

dismissal if an appellant includes in his appendix everything 

germane to the disposition of his appeal and the appellee has not 

been prejudiced by the failure." Wilcox v. Lauterbach Elec. Co., 

233 Va. 416, 420, 357 S.E.2d 197, 199 (1987). Balchunis was 

familiar with the issue being appealed because there had been 

only one issue throughout the case; therefore, a failure by 
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Teagle to file a statement of questions presented did not 

prejudice Balchunis. Teagle included everything germane to 

disposition of the appeal in his appendix. 

 MERITS 

 On appeal, we view the evidence in the light most favorable 

to the party prevailing below. Crisp v. Brown's Tysons Corner 

Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). 

For an injury to be compensable, the claimant must prove an 

"injury by accident arising out of and in the course of the 

employment . . . ." Code § 65.2-101. "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 Service 

v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305, 305 (1989) 

(citing Park Oil v. Parham, 1 Va. App. 166, 168, 336 S.E.2d 531, 

532 (1985)). 

 Balchunis was employed by Teagle as a lead stripper. On 

April 21, 1992, he was injured while carrying a proof to the 

bindery. As he approached a "blind" corner, he had to "zig-zag" 

out of the way of two members of the cleaning crew, who 

approached from the opposite direction, in order to avoid a 

collision. When he made those sudden movements, he felt his knee 

"pop." 

 Balchunis went to Sentara Medical Care Center for a left 

knee exam. He was referred by the Center to Dr. Dobson, 

orthopaedist, who diagnosed "an anterior tear of the medial 
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meniscus." On July 31, 1992, Dr. Abbott, orthopaedic surgeon, 

performed a partial medial meniscectomy. On September 8, 1992, 

he indicated that Balchunis had reached maximum medical 

improvement. On October 18, 1994, the commission entered an 

award, affirming the earlier decision of a deputy commissioner 

finding that Balchunis's injury arose out of and in the course of 

his employment and awarding him temporary total and permanent 

partial disability benefits. 

 Teagle contends that the commission erred in finding that 

Balchunis's injury arose out of his employment. Teagle argues 

that stepping out of someone's way is neither an unusual act nor 

incidental to the character of the printing business. Citing 

County of Chesterfield v. Johnson, 237 Va. 180, 376 S.E.2d 73 

(1989), Teagle argues that Balchunis was equally exposed to this 

type of injury outside of his employment. 

 In Johnson, only the claimant was involved in the accident. 

 Here, the accident took place while Balchunis was performing 

his job duties. It was caused by Balchunis's trying to avoid a 

collision with members of the cleaning crew who were also on 

Teagle's premises performing their job. Turning on the stairs is 

a common activity. Sudden movement to avoid a collision with a 

cleaning crew is not. 

 There was no question that the injury occurred "in the 

course" of Balchunis's employment because it occurred while he 

was on his employer's premises during work hours. The sole issue 
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on review is whether he suffered an accident "arising out of" his 

employment. "An accident arises out of the employment when there 

is a causal connection between the claimant's injury and the 

conditions under which the employer requires the work to be 

performed." United Parcel Service v. Fetterman, 230 Va. 257, 

258, 336 S.E.2d 892, 893 (1985). "[A]n injury arises 'out of' 

the employment when it has followed as a natural incident of the 

work . . . [t]he causative danger must be peculiar to the work, 

incidental to the character of the business, and not independent 

of the master-servant relationship." Id. at 258-59, 336 S.E.2d 

at 893. 

 Balchunis proved that the sudden "zig-zag" movement he made 

to avoid a collision with the cleaning people was incidental to 

his work. Therefore, his knee injury arose out of his 

employment. 

 We affirm the award of the commission. 

 Affirmed.