COURT OF APPEALS OF VIRGINIA
Present: Judges Chafin, Malveaux and Senior Judge Frank Argued at Norfolk, Virginia

STEVEN ECHEVARRIA MEMORANDUM OPINION * BY v. Record No. 0105-16-1 JUDGE TERESA M. CHAFIN OCTOBER 18, 2016 CITY OF CHESAPEAKE

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION (Michael F. Imprevento; Breit Dr escher Imprevento P.C., on brief), for appellant. 1 Ryan C. Samuel, Assistant C ity Attorney, for appellee.
Steven Echevarria appeals a decision fr om the Virginia Workers’ Compensation Commission denying him work ers’ compensation benefits for an injury he sustained when he slipped on a stairway during the course of his employment with the City of Chesapeake. Specifically, Echevarria contends that the Commission erred by concluding that the evidence presented did not establish that his injury aros e out of his employment. For the reasons that follow, we affirm th e Commission’s decision.
I. BACKGROUND On appeal, this Court views the evidence in the light most favorable to the City of Chesapeake, the prevailing party before the Commission. See Liberty Mut. Ins. Corp. v.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 An attorney did not appear on behalf of Echevarria at the oral argument scheduled for this case.UNPUBLISHED- 2 - Herndon, 59 Va. App. 544, 550, 721 S.E.2d 32, 35 (2012) . So viewed, the evidence is as follows. Echevarria, a police officer, slipped on a stairw ay while he was investigating a potential burglary in progress at a private residence. As he was coming down the stairs af ter ensuring that no suspects were hiding on the second floor of th e residence, Echevarria lost his balance and slipped. When he slipped, he caught himself by grabbing the safety railin g of the stairway. Echevarria avoided falling, but he injured hi s arm when he grabbed the railing. He was eventually diagnosed with a ruptured tendon in hi s left bicep, and he underwent surgery to repair the tendon. The body cameras worn by Echevarria and tw o other police officers assisting in the investigation recorded his acc ident. The videos from the body cameras showed Echevarria walking down carpeted stairs that appeared to be in good repair and they did not reveal any obvious defects in the stairway th at caused him to slip. Rather, they simply showed Echevarria slipping in an area where the stairway made a “u -turn” between the base of the stairs and the second floor. As there were no intermediate land ings on the stairway, the stairs fanned out to negotiate the turn, resulting in th e stairs being narrower on the insi de of the turn and wider on the outside of the turn. In addition to recording the actual accident , the body camera videos also captured one of the homeowners’ responses to Eche varria’s injury. Immediately af ter Echevarria slipped, one of the homeowners who was standing at the base of the stairway exclaimed, “Don’t hurt yourself! I just slipped down the stairs. I just slipped down earlier.” The homeowner then said to another individual who was not visible in the video, “I told you to call that man.” A short time later, the homeowner told another officer that she had falle n on the stairs earlier th at day. The homeowner did not provide any further explanati on regarding the cause of her fall.- 3 - Although Echevarria slipped near the “u-turn” in the stairw ay, he did not attribute his accident to the turn or any other defect or abno rmality in the stairs. Furthermore, he did not claim that he slipped because he was distracted or rushed by the duties of the investigation. In response to his employer’s request for admissions, Ec hevarria stated that he was “unaware of any defect in the steps, staircase or landing” and admitted that there were no foreign substances or materials on the stairway when he slipped. He also admitted that he was not “hurrying,” “distracted,” or “carrying anything” at the time of the accident. When he testified before the deputy co mmissioner presidi ng over his workers’ compensation claim, Echevarria testified that he stepped down on the center of a step just before he slipped. He described that step as “solid .” Another police officer participating in the investigation confirmed that the st eps were of a “normal” height. Echevarria testified that he was wearing his standard police uniform when he slipped, including the “slip-resistant” shoes provided by the police department. He also admitt ed that his accident occurred in daylight and that he was the only officer investigating the potential burglary who s lipped on the stairway. The videos showing Echevarria’s accident were reviewed by the deputy commissioner. The homeowner, however, did not testify at th e hearing concerning Echevarria’s workers’ compensation claim or provide evidence about th e stairway through another method. Echevarria testified that he had not inspected the stairway fo r defects since the time of his accident, and he did not present any additional evidence beyond th e videos from the body cameras to establish that the stairway was unusual or defective. After reviewing the evidence presented by the parties, the deputy commissioner concluded that Echevarria’s injury arose from his employment. Based primarily on the statements of the homeowner, the deputy commi ssioner found that Echevarria slipped due to a defect in the stairway. While the deputy co mmissioner acknowledged that the homeowner’s- 4 - statements did not establish th e details of the defect, he de termined that the homeowner’s statements implied that a defect existed in the stairway by referencing a previous fall and the need for corrective action. The full Commission reversed the deputy commi ssioner’s decision. Expressly noting that there were no obvious defects on the stairway, the Commission dec lined to infer that a defect caused Echevarria to slip. The Commission concl uded that the homeowner’s statements did not establish that her previous fall was caused by a defect in the stairway, and explained that she “may have fallen on the stairs for countless reasons beyond a defect with the step at issue.” Additionally, the Commission reas oned that the homeowner coul d have been referring to a different defect that did not cont ribute to Echevarria’s accident. One commissioner dissented from the major ity’s opinion. The disse nting commissioner concluded that the circumstantial evidence presen ted in this case established that Echevarria slipped due to a defect in the stairway. Citing the remedial purposes of the Virginia Workers’ Compensation Act, the dissenting commissioner inferred that the homeowner’s statements in the videos from the police officers’ body cameras referre d to a defect in the stairway that caused Echevarria’s accident. This appeal followed the Commission’s decision.
II. ANALYSIS On appeal, Echevarria argues that the Commission erred by c oncluding that his injury did not arise out of his employment. The Commissi on’s decision that an accident arises out of employment presents a mixed question of la w and fact. See Herndon, 59 Va. App. at 555, 721 S.E.2d at 37. While we review the ultimate legal issue de novo , “the [C]ommission’s factual findings are conclusive and bindi ng on this Court when those findings are based on credible evidence.” City of Wayn esboro v. Griffin, 51 Va. App. 308, 312, 657 S.E.2d 782, 784 (2008);- 5 - see also Code § 65.2-706(A) (“[A]n award of th e Commission . . . sha ll be conclusive and binding as to all questio ns of fact.”). To obtain compensation for injuries, a claima nt must prove by a preponderance of the evidence that he or she suffered an injury by acci dent “arising out of and in the course of the employment.” 2 Code § 65.2-101. In determining whether an injury arises out of employment, “Virginia employs the actual risk te st. A claimant’s injury arises out of the employment if the manner in which the employer requires the work to be perfor med is causally related to the resulting injury.” . . . “[A]n in jury does not arise out of the employment when it ‘cannot be fair ly traced to the employment as a contributing proximate cause and . . . 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 neighborhood.’” Southside Va. Training Ctr. v. Ellis, 33 Va. App. 824, 828-29, 537 S.E.2d 35, 37 (2000) (quoting Vint v. Alleghany Reg’l Hosp., 32 Va. App. 60, 63-64, 526 S.E.2d 295, 297 (2000)). “Simple acts of walking, bending, or turning , without any other contributing environmental factors, are not risks of employme nt.” Id. at 829, 537 S.E.2d at 37. “The mere happening of an accident at the workplace, not ca used by any work related risk or significant work related exertion, is not compensable.” Pl umb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989)). “‘[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.’” PYA/Monarch & Reliance Ins. Co. v. Harris, 22 Va. App. 215, 221, 468 S.E.2d 688, 691 (1996) (quoting Pinkerton’s, Inc. v. Helmes, 242 Va. 378, 380, 410 S.E.2d 646, 647 (1991)).

2 The City of Chesapeake conceded that Ec hevarria’s injury was caused by an accident that occurred during the c ourse of his employment.- 6 - Perhaps the most common examples of the arising-out-of principle are the cases involving tripping on steps. An employee who trips while walking up a staircase at work cannot recover compensation unless something about the steps (or some other condition of the workplace) pres ented a hazard or danger peculiar to the worksite. . . . [I]f there is “nothing unusual or wrong with the steps,” an employee who trips over them cannot show the accident “arose out of” the employment. [County of Chesterfield v.] Johnson, 237 Va. [180,] 185-86, 376 S. E.2d [73,] 76 [(1989)]. On the other hand, if the steps are “unusual” because they are “slightly higher than normal” or otherwise peculiar, then tripping over them would involve an accident arising out of the employment. Id. In such cases, the steps present an enhanced risk, qualitatively different from th e steps most people walk up and down on and off the job. Bernard v. Carlson Cos.-TGIF, 60 Va. App. 400, 407, 728 S.E.2d 508, 511-12 (2012); see also County of Buchanan Sch. Bd. & AIU Ins. Co. v. Horton, 35 Va. App. 26, 29, 542 S.E.2d 783, 784-85 (2001) (“[I]n order for a fall on stairs to be compensable ther e must either be a defect in the stairs or [the] claimant mu st have fallen as a result of a condition of the employment.”). In certain situations, an injured worker may es tablish that his or he r injury arose out of employment solely through circumstantial evidence. [T]he mere nonexistence of direct evidence in the form of the claimant’s memory or an eyewitn ess’ account does not, in and of itself, preclude an award of benefits. On the contrary, the [C]ommission may find an explanation for an accident based on circumstantial evidence, when that evidence “allows an inference that the claimant suffered an injury by accident arising out of . . . his employment.” Griffin, 51 Va. App. at 314-15, 657 S.E.2d at 785 ( quoting Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 433, 437 S.E.2d 727, 728 (1993) ( en banc )). Nevertheless, circumstantial evidence implying that an employee’s accident arose from his or her employment must dete rmine the issue beyond surmise or mere conjecture in order to support an award of workers’ compensation benef its. See id. at 315, 657 S.E.2d at 785; Sullivan- 7 - v. Suffolk Peanut Co., 171 Va. 439, 443, 199 S.E. 504, 506 (1938) (“[A workers’ compensation] award based upon surmise or conjecture will be set asid e.”). “If the evidence shows that it is just as probable that the disability resulted from a cau se which is not compensable, as it is that it resulted from one which is compensable, the cl aimant has not sustained the burden of proof.” Van Geuder v. Commonwealt h, 192 Va. 548, 557-58, 65 S.E.2d 565, 571 (1951) (quoting Carter v. Hercules Powder Co., 182 Va. 282, 288, 28 S.E.2d 736, 738 (1944)). Echevarria’s primary argument on appeal is based solely on the homeowner’s statements. He contends that the statements the homeowner made immediately after his accident proved that a defect existed in the stairway and that the Commission should have inferred that the defect caused him to slip. According to Echevarria, th e homeowner referenced a defect that had the potential to cause similar falls and needed to be repaired. While the homeowner may have been referencing a dangerous defect in the stairway, Echevarria ’s reliance on the homeowner’s statements to establish that his injury arose from such a defect fails for two reasons. The evidence presented to the Commissi on did not establish that a defe ct caused Echevarria to slip, and the homeowner’s statements are ambi guous concerning the cause of her fall. Echevarria’s own testimony and the other evidence presented in this case suggested that he did not slip due to a defect in the stairway. Echevarria candidly admitted that he was unaware of any defects in the stairway that contributed to hi s accident. His testimony was corroborated by the videos from the officers’ body cameras. Th ese videos showed a stairway in good repair without any obvious defects. Alt hough the stairway had a “u-turn” with steps of varying widths, Echevarria testified that he steppe d on the center of a “solid” step just before his accident rather than the narrow portion on the insi de of a step negotiating the turn. The homeowner’s statements about a potential de fect in the stairway are unclear at best. While the homeowner stated that she fell on the st airway earlier that day, she did not provide any- 8 - explanation concerning the cause of her fall. As the Commission note d, the homeowner could have fallen for numerous reasons that did not involv e a defect in the stairway. For example, she could have been distracted or ill when she des cended the stairway. She also could have been engaged in an activity that added to the difficulty of negotiating the stairw ay, such as carrying a large or heavy item. Thus, the Commission woul d have had to speculate to infer that the homeowner fell due to a defect in the st airway rather than any other reason. Furthermore, even if we assume that the hom eowner fell due to a defect in the stairway, no evidence established that Echevarria fell due to the same defect. Since the evidence presented did not establish the natu re of the defect that may or may not have caused the homeowner to fall on the stairway, we cannot infer that the same de fect caused Echevarria to slip. The homeowner could have fallen due to a defect on a different part of the stairway. Again, the Commission would have had to speculate to conclude that Ec hevarria slipped due to the same defect that caused the homeowner to fall. In summary, the evidence did not establish th at a defect in the st airway contributed to Echevarria’s injury. The homeowner’s statements cannot be construed as proof establishing the existence of a defect in the stairway, and Ec hevarria failed to present any other evidence affirmatively establishing the existence of a defect in the stairway that caused him to slip. Moreover, even if we assume that the homeowner’s statements referenced a defect in the stairway, the record did not establish that the same defect caused Echevarria to slip. Under these circumstances, an award of workers’ compensati on benefits would be base d on pure speculation.- 9 - III. CONCLUSION In the present case, the circumstantial evid ence presented by Eche varria did not prove that his injury arose from his employment. 3 As Echevarria failed to prove that a defect in the stairway or a condition of his employment cau sed his injury, the Co mmission did not err by denying him workers’ compensation benefits. Accordingly, we affi rm the Commission’s decision. Affirmed.

3 While we note that the Virginia Workers’ Compensation Act should generally receive a liberal construction in favor of the injured work er to carry out its remedial purposes, the words “arising out of and in the cour se of employment” cannot be c onstrued to allow compensation on every claim asserted. See Southside Va. Trai ning Ctr., 33 Va. App. at 830, 537 S.E.2d at 37.