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 

 

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

designated for publication. 
 2 

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. 
 3 

 For the reasons stated, we affirm the commission's decision. 

 Affirmed. 
 4 

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-todoor survey in the town of Woodstock to find 
 5 

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 
 6 

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.