COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Hu ff and Senior Judge Coleman Argued at Richmond, Virginia

CHRISTOPHER ALEXANDER SNYDER OPINION BY v. Record No. 0187-13-2 JUDGE GLEN A. HUFF OCTOBER 15, 2013 CITY OF RICHMOND POLICE DEPARTMENT

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Malcom Parks (Maloney, Parks & Clarke, P.C., on brief), for appellant. (Laura K. Drewry, Senior Assi stant City Attorn ey; Office of the Richmond City Attorney, on brief), for appellee. Appellee submitting on brief.

Christopher Alexander Snyder (“appellant”) ap peals a decision of the Virginia Workers’ Compensation Commission (“commission”) holding th at appellant’s injury did not arise out of his employment with the City of Richmond Poli ce Department (“employer”) and thus was not a compensable injury. On appeal, appellant c ontends that the “Commi ssion erred in finding that . . . [his] accidental fall and his right le g injury did not arise out of a risk of his employment.” For the following reasons, th is Court affirms the commission’s holding.

I. BACKGROUND “On appeal from a decision of the Worker s’ Compensation Commission, the evidence and all reasonable inferences that may be drawn from that evidence are viewed in the light most favorable to the party prevailing below.” Artis v. Ottenberg’s Bakers , Inc., 45 Va. App. 72, 83, 608 S.E.2d 512, 517 (2005) (en banc) (citing Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72,PUBLISHED- 2 - 577 S.E.2d 538, 539 (2003); Tomes v. James City (County of) Fire, 39 Va. App. 424, 429, 573 S.E.2d 312, 315 (2002)). So viewed, the evidence is as follows. Appellant was a police officer with the Speci al Operations Divisi on (City Traffic Unit) for the City of Richmond at th e fourth precinct office on Cham berlayne Avenue. On July 4, 2011, appellant was scheduled to work during a ho liday fireworks event. Although the event did not begin until 7:00 p.m., appellant was required to report to the precinct at 12:30 p.m. His standard procedure before beginning a shift was to enter the precinct in his personal vehicle, park in the employee lot, and go inside the building to check in with his sergea nt. After being cleared to begin duty, appellant would then go outside to his patr ol vehicle, check the vehicle, turn on the vehicle’s laptop, and leave for his assignment. On the day in question, appellant arrived at approximately 12:10 p.m. and parked his personal vehicle toward the back of the employee lot, which was accessible by using a card issued by the police department. Neither the ge neral public nor officers from other precincts were allowed or able to park ther e. Appellant also indicated that he was expected to park in the lot for security purposes, as the fourth precinct was located in a high-crime area. The customary entrance to the building was a door located to one side with a st airwell nearby and a short brick retaining wall just beyond the stai rs. Appellant regularly jumped on and over the retaining wall to enter the building, sta ting that doing so helped him exerci se his legs. Although appellant was required to maintain good physical fitness as a condition of his employment, employer did not require him to go over the retaining wa ll in order to enter the building. As he walked through the parking lot toward the building, appellant carried his duty belt over his shoulder instead of wearing it around his wa ist. The belt held two sets of handcuffs, a radio, a steel retractable baton, a flashlight, a pistol, and two extr a magazines, and weighed about ten pounds. While walking through the lot, appell ant saw a colleague, Officer Kitt, and they- 3 - began speaking. Appellant complained that he was unhappy he had to report to work at 12:30 p.m. when the fireworks event did not begin unt il later that evening, especially given that he was not normally scheduled to work on that da y. Appellant further comp lained that he would rather be spending time at home with his family, as his wife recently had surgery and was still fairly immobilized. As they were talking, appellant continued walking and his right foot clipped a cement parking block that was secured to the ground ap proximately eighteen inches from the brick retaining wall. The following photograph of the parking block and retaining wall were admitted

into evidence.

Appellant fell forward, striking th e edge of the brick retaining wall with his right knee and rolling over the wall onto a sidewalk. As a result of the fall, he suffered a contusion to his right knee and a ligament tear which ultimately re quired corrective surger y. Appellant sought temporary total disability benefits for th e period of July 5, 2011 to October 2, 2011, and continuing temporary partial disability benefits . Prior to a hearing on appellant’s workers’- 4 - compensation claim, the parties stipulated that appellant’s injury occurred from the fall in question and that appellant’s alleged period of disability was accurate. At a hearing before the deputy commissione r on October 13, 2011, appell ant testified that he fell because “my attention was diverted to . . . Kitt.” He admitted that there was nothing unique or irregular about the pa rking block, but indicated that the short distance between the parking block and the retaining wall was strange because the block would not actually prevent a vehicle from hitting the retaining wall. He also stated that othe r parking blocks in the same lot were placed farther away from the retaining wall and that if the wall were not so close, he would have been able to prevent himself from falling. A ppellant further testified that the fact that he was carrying his duty belt over his shoulder affected the way he fell because he was trying to protect the loaded pistol fr om accidentally discharging. The deputy commissioner de nied appellant’s claim for benefits on the ground that appellant’s injury did not arise out of a risk of employment. The full commission affirmed in a divided opinion, finding that the injury was not sufficiently causally related to the conditions under which employer required appellant’s work to be done. Specifically, the commission rejected appellant’s arguments that the configur ation of the parking bl ock was unique, that the

conversation with Kitt was work-rela ted, and that the duty belt affected the severity of his fall. This appeal followed.

II. STANDARD OF REVIEW “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) (citi ng Norfolk Community 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 s upported by credible- 5 - evidence, . . . we review de novo the commission’s ultimate determination as to whether the injury arose out of the claimant’s employmen t.” Stillwell v. Lewis Tree Serv., 47 Va. App. 471, 477, 624 S.E.2d 681, 683 (2006).

III. ANALYSIS On appeal, appellant contends that the comm ission erred in finding th at his injury did not arise out of a risk of his employment. Specifica lly, appellant asserts that he was speaking with Kitt about work-related matters when the injury o ccurred and that the cement parking block was irregularly situated on the ground. Responding, em ployer argues that appellant was merely “complaining about having to come to work” a nd that the parking bloc k contained no defects that would make its physical arrangement “unique” from other parking blocks. “For an injury to be compensable under the Workers’ Compensation Act [(“Act”)], the claimant must prove by a preponderance of the evid ence three elements: (1 ) that the injury was caused by an accident; (2) that the injury was su stained in the course of the employment; and (3) that the injury arose out of the employ ment.” Southland Corp. v. Parson, 1 Va. App. 281, 283-84, 338 S.E.2d 162, 163 (1985). In the present cas e, the parties agree that an accident occurred and that the resulting in jury was sustained in the course of appellant’s employment. Moreover, we hold that the fact findings of th e commission were supported by credible evidence. In determining whether appe llant’s accidental injury ar ose out of his employment, Virginia adheres to the “actual risk” doctrine. Th at test “‘excludes an injury which comes from a hazard to which the employee would have been equally exposed apart from the employment.’” Bernardo v. Carlson Cos. – TGIF, 60 Va. App. 400, 405, 728 S.E.2d 508, 511 (2012) (quoting Taylor v. Mobil Corp., 248 Va. 101, 107, 444 S.E.2d 705, 708 (1994)). Thus, “[a]n ‘actual risk of employment’ is ‘not merely the risk of bei ng injured while at work.’ ” Id. (quoting Taylor, 248 Va. at 107, 444 S.E.2d at 708). Rather, “[u]nder the ac tual risk test, an injury comes within the- 6 - Act ‘only if there is a causal connection between the employee’s injury and the conditions under which the employer requires the work to be done.’” Simms v. Ruby Tuesday, Inc., 281 Va. 114, 122, 704 S.E.2d 359, 363 (2011) (quoting Hilton v. Martin, 275 Va. 176, 180, 654 S.E.2d 572, 574 (2008)). “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 [the applicable test] excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighbo rhood. It must be incidental to the character of the business a nd 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, and to have flowed from that source as a rational consequence.” Id. at 122-23, 704 S.E.2d at 363 (alteration in original) (quoting Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938)). Lastly, dist ractions that cause the injury may be compensable if they are not “‘unr elated to any hazard common to the workplace.’” Marion Corr. Treatment Ctr. v. Henderson, 20 Va. App. 477, 480, 458 S.E.2d 301, 303 (1995) (quoting United Parcel Service v. Fetterman, 230 Va. 257, 259, 336 S.E.2d 892, 893 (1985)) (holding that because appellant’s job responsibilities included watching tower guards rather than steps, his injury caused by missing a step while watching to wer guards did arise out of his employment). Applying the actual risk test to these circumstances, this Court holds that appellant’s injury did not arise out of his employment. At the time of the accident, appellant was complaining to Kitt that he did not want to repor t to work at 12:30 p.m. when the fireworks event did not start until nightfall. Appellant’s risk of tripping over a curb in the parking lot was not caused by his employment but rath er presented an equal risk to any person walking inattentively- 7 - in the parking lot. Moreover, the distraction that caused appellant’s injury is not linked to any of his job responsibilities as was the case in Hende rson. Furthermore, appellant admitted that the physical arrangement of the cement parking block was neither unique nor irregular; he merely stated that its proximity to the brick retaining wa ll was strange. The mere fact that the parking block was located at the workplace, in absen ce of other factors, did not create a causal relationship between appellant’s fall and the conditions of his employment. Lastly, the position of appellant’s duty belt at the time of the fall was not the origin of the injury; to be compensable an injury “must appear to have had its origin in a risk connected with the employment.” Simms, 281 Va. at 123, 704 S.E.2d at 363. Thus, this Cour t holds that the commission did not err in concluding that appellant’s injury di d not arise out of his employment.

IV. CONCLUSION For the foregoing reasons, this Court holds th at the commission did not err in holding that appellant’s injury did not arise out of a risk of his employment. Accordingly, this Court affirms the commission’s holding.

Affirmed.