COURT OF APPEALS OF VIRGINIA

Present: Judges Chafin, Russ ell and Senior Judge Clements Argued at Richmond, Virginia

COUNTY OF HENRICO AND VIRGINIA ASSOCIAT ION OF COUNTIES GROUP SELF-INS URANCE RISK POOL MEMORANDUM OPINION * BY v. Record No. 0406-18-2 JUDGE WESLEY G. RUSSELL, JR. OCTOBER 16, 2018 BROOKE COLLAWN

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Scott C. Ford (Andrew E. Sasso on; Ford Richardson, P.C., on b rief), for appellants. Brody H. Reid (Berkley D. Foltz ; ReidGoodwin PLC , on brief), for appellee.

The County of Henrico and its ins urance carrier (collectively, “employer”) appeal a decision of the Virginia Workers’ Compensation Commission findi ng that appellee Brooke Collawn (“claimant”) sustaine d a compensable injury by accident and awarding her medical benefits, temporary total disabil ity, temporary partial disabil ity, and attorney’s fees. For the reasons that follow, we affirm.

BACKGROUND On appeal, “we review the eviden ce in the light most favorable to the claimant because she prevailed below[.]” Ki ng William Cty. v. Jones, 66 Va. App . 531, 540, 789 S.E.2d 133, 138 (2016) ( en banc ).

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - Claimant worked for employer as a fourth-grade teacher, earnin g an average weekly wage of $840.38. During a summer Teacher Work Week, on August 30, 2016, she and other school personnel visited incoming s tudents at daycare centers a nd apartment complexes. Claimant was twenty-six weeks pr egnant at the time and was wear ing a bat girl costume and flip-flops. She wears a size ten shoe. The school employees used a bus t o make their visits; they boa rded at the school. When they reached their first st op, claimant injured her ankles uponexiting the bus. She fell to the ground after losing her footing w hen she stepped down onto one of the bus steps. The steps

measured as follows: 9 1⁄2 inches in rise with a run of 9 3/8 inches; 9-inch ris e with a run of 9 1/8 inches; and 8 3⁄4 rise with a 9 1/16 inch run. Claimant was not carrying anything, there was no de bris on the steps, and the lighting was fine. Claimant was taken out of work until November 8, 2016, and whe n she returned on November 9, she worked only half da ys. Claimant then went on m aternity leave on December 9,

2016. Based on the August 30 incident, claimant filed a claim for be nefits with the Commission on October 5, 2016. She sought both me dical and disability ben efits. The claim reported that she injured her left and right ankles when “exiting school bus. ” Employer denied the claim, stating that the injury was not c ompensable under the Virginia Workers’ Compensation Act because the alleged accident did not arise out of or in the cou rse of employment. A hearing was held before a de puty commissioner on February 16 , 2017. Records that were admitted into evidence indicated that claimant “injured bo th ankles upon falling approx[imately] 3 feet” after sh e “fell off last step” and note d that claimant suffered a “right

ankle fracture dislocation” aft er “[s]he tripped getting off a school bus.”- 3 - Claimant testified, “I misjudged the steps as I was coming dow n them. They were steeper than I thought.” Whe n expressly asked, “[D]o you know what caused you to fall?”, claimant responded, “Yes. The steps were steeper than I had an ticipated. And they were small for my size 10 shoe.” She furth er testified that prior to her fall, she never had been on that particular bus and had been on a school bus as a teacher “five times maybe.” Over employer’s objections, D ano Holland, a structural and for ensic engineer, testified as an expert to the standards a pplicable to step design under the international building code, the model for the Virginia Uniform Statewide Building Code. His te stimony was offered to compare

the “measurements of the bus com pared to the codes that apply, which are IBC, in the general public of most ingress and egress stairs.” Holland acknowledge d that the building codes did not specifically deal with buses. B ased on his review of photograp hs of the bus, Holland concluded, “The steps of the bus, their ris er heights, they’re higher thanwhat’s allowable in the state code. And their tread depth isn’t as wi de as what’s been required in the building code.” He explained, “All the risers are approximatel y two inches [taller], and all the tread depths are approximately two inches too narrow[,]” there by making them steeper. With re spect to potential defects in the stairs, Holland stated there w ere none. Holland acknowledged that deviations from the building

code were common. Kevin Roye, an employee of the s chool district’s Department of Pupil Transportation, testified on employer’s beha lf. He had no knowledge of any oth er people falling from the bus steps. He testified that he had inspected the bus and that its steps complied with requirements set forth in the Virginia School B us Specifications. In addition, Jeanetta Lee, a claims manager with the county’s risk management department, testified that the bus was no different from other buses used in the county. She fur ther testified that, like cla imant, she wore a size ten shoe and that she “had no issue maneuvering the steps.”- 4 - The deputy commissioner i ssued his decision on March 17, 2017. In considering whether claimant, in falling from the st eps of the bus, “sustain[ed] anaccident which arose out of and in the course of [her] employment [,]” the deputy commissioner firs t noted that “[t]here is no dispute that the claimant’s injury was the result of an accident which occurred in the course of her employment.” The deputy commissioner then addressed whethe r the injury arose out of claimant’s employment. After reviewing case law involving steps, the deputy commissio ner concluded that claimant’s injury arose out of he r employment and awarded benef its. Finding that “the difference in the bus steps” made them “steeper than steps whic h she normally would encounter,” he reasoned that “thi s setting was a sufficient inc reased risk of her employment” to find a compensable injury. Employer sought review by the f ull Commission, asserting, in p art, that the deputy commissioner erred in “admitting and relying on” Holland’s test imony, in finding that claimant’s injury arose out of her employ ment, and in holding that the bus steps constituted an actual risk of claimant’s employment. The parties submitted written statement s in support of their positions. In its divided February 7, 2018 r eview opinion, the Commissionaffirmed the deputy commissioner’s March 2, 2017 opinion. 1 In doing so, the Commission concluded that the bus steps were “unusual in their c onfiguration” and “the unusual st eepness of the bus steps was an actual risk of claimant’s employm ent.” Furthermore, the Commis sion concluded that the deputy

1 Each commissioner wrote a separate opinion. Commissioner Rapp aport wrote an opinion dissenting from the Commission’s decision to award bene fits. Commissioner Newman wrote an opinion that fully concur red in Commissioner Marshall’ s opinion, but also addressed specific issues raised in Comm issioner Rappaport’s dissent.- 5 - commissioner “did not err in a dmitting Holland’s testimony.” A ccordingly, claimant was awarded both disability and medical benefits. This appeal followed.

ANALYSIS On appeal, employer does not cont est that claimant suffered an injury or that the injury occurred in the course of her employment. Rather, employer arg ues that the Commission erred in concluding that the injury a rose out of that employment and in the admission of and ultimate reliance on the expert testimony of Holland to aid in reaching that conclusion. 2 We address each

contention below. I. Injury arising out of cla imant’s employment “Whether an injury arises out of . . . employment involves a m ixed question of law and fact, which we review de novo on appeal.” Snyder v. City of Richmond Police Dep’t, 62 Va. App. 405, 411, 748 S.E.2d 650, 653 (2013) (internal quotati on marks and citations omitted). Thus, “we are bound by the commi ssion’s underlying factual find ings if those findings are

2 Employer asserts four assignments of error: 1. The Commission erred in finding that the appellee sustained a compensable injury by accident arising out of her employment on August 30, 2016. 2. The Commission erred in finding that the “unusual steepness of the bus steps” constituted an actual risk of the employment. 3. The Commission erred in finding that the bus steps “were unusual in their configuration.” 4. The Commission erred finding t hat the expert testimony of Dano Holland was admissible and relying on Dano Holland’s expert testimony. The first three challenge the c onclusion that the injury arose out of claimant’s employment, while the fourth challenges the evidence admitted and relied up on to reach that conclusion.- 6 - supported by credible evidence, [but] we review de novo the commission’s ultimate

determination as to whether the injury arose out of the claiman t’s employment.” Id. at 411-12, 748 S.E.2d at 653-54 (internal quota tion marks and citations om itted). To establish that her injury aro se from her employment, claima nt had the burden to prove more than the injury occurred whi le she was at work, Cty. of Ch esterfield v. Johnson, 237 Va. 180, 185, 376 S.E.2d 73, 76 (1989); she had to prove that the i njury resulted from an “actual risk” of her employment. Tay lor v. Mobil Corp., 248 Va. 101, 1 07, 444 S.E.2d 705, 708 (1994). Actual risks are conditions that are “peculiar to the work and not common to the neighborhood[.]” Liberty M ut. Ins. Corp. v. Herndon, 59 Va. Ap p. 544, 557, 721 S.E.2d 32, 38 (2012) (quoting Immer & Co. v. Brosnahan, 207 Va. 720, 726, 152 S.E.2d 254, 258 (1967)). A risk is common to the neighborhood if it is “a hazard to which the employee would have been equally exposed apart from the employment.” United Parcel Serv . of Am. v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 893 (1985). We previously have defined certa in motions and activities as r isks of the neighborhood. Absent some additional complica ting factor, we have held that “ [s]imple acts of walking, bending, or turning” are risks of the neighborhood as opposed t o actual risks of employment. Southside Va. Training Ctr. v. Ellis, 33 Va. App. 824, 829, 537 S.E.2d 35, 37 (2000). Similarly, everyday activities such as ch ewing and swallowing food, Bernar d v. Carlson Cos. — TGIF, 60 Va. App. 400, 410, 728 S.E.2d 508, 513 (2012), and tying one’s shoes, Fetterman, 230 Va. at 259, 336 S.E.2d at 893, are risks of the neighborhood, and thus , do not arise out of a worker’s employment. Much of our “arising out of” jurisp rudence involves falls on s tairs. As we observed in Bernard, Perhaps the most common examp les of the arising-out-of principle are the cases invol ving tripping on steps. An employ ee- 7 - who trips while walking up a stair case at work cannot recover compensation unless something about the steps (or some other condition of the workplace) pres ented a hazard or danger peculi ar to the worksite. Even though the e mployer provided the steps, and encouraged the employee to use them, if there is “nothing unusu al about or wrong with the steps,” a n employee who trips over them cannot show the accident “arose out of” the employment. Johnso n, 237 Va. at 185-86, 376 S.E.2d at 76. On the other hand, if the steps are “unusual” because they are “slightly higher th an normal” or otherwise peculiar, then tripping over them would involve an accident arising out of the employment. Id. (pointing out these “facts were crucial” to ca ses like Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 159 S.E.2d 63 3 (1968)). 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. 60 Va. App. at 407, 728 S.E.2d at 511-12 (footnote omitted). T hus, given that claimant’s injury resulted from a fall on steps, s he had the burden to establish that the steps were defective or otherwise “unusual” when compare d to “the steps most people wal k up and down on and off the job” almost every day. Id. Before turning to claimant’s ev idence regarding these stairs, it is worth emphasizing why falls on “normal” stairs are not compensable. Such stairs cons titute a risk of the neighborhood not because they are stairs, but be cause they are an obstacle f aced as often outside of the workplace as within it. Stairs of “normal” height, depth, and width are potential obstacles encountered by employees almost everywhere they go, whether at work, in the home, in public buildings, and in retail stor es. Such stairs are found both in side and outdoors. It is because workers are equally exposed t o the risks posed by the obstacles that are “normal building stairs,” whether at work or not, that suc h falls on “normal” steps are n ot risks of the employment. This

is true wherever such non-defectiv e “normal” steps are encounte red, even on a bus. Here, based on the evidence be fore it, the Commission found as fact that the steps on which claimant fell were “unusual,” and therefore, not “normal building stairs.” As the deputy- 8 - commissioner noted, evidence esta blished the bus steps were “ap proximately two inches taller

and two inches narrower than anormal building staircase . . . .” The Commission, relying on the same evidence, effectively adopted this conclusion when it foun d that the bus steps in question

were “taller and narrower than a ‘regular’ or ‘normal’ stairway .” The evidence amply supports these conclusions, which take th ese steps outside the rule for “normal” steps. See Hosey, 208 Va. at 569, 159 S.E.2d at 634 (holding ste ps that “were just a little bit higher than usual for a step” were a risk of the emplo yment as opposed to the neighborh ood). Employer, echoing the opinion of the dissenting commissioner, responds that the steps were not unusual when judged against normal bus steps, stressing that the steps here met the applicable “Virginia School Bus S pecifications.” From this pre mise, employer argues that the

evidence thus failed to demonstrate “that there was a defect wi th the steps or the steps were unusual to the neighborhood.” The premise underlying this argum ent does not alter the analys is. The fact that the steps might be “normal school bus steps” that meet certain guidelines does not make them a risk of the neighborhood. Every day Virginia employees encounter any numbe r of things, from forklifts to safety equipment at nuclear power p lants, that are standard for their particularized purpose and meet relevant safety guidelines. Despite meeting the relevant safety guidelines, the risks attendant to these things are not risks of the neighborhood bec ause they are normally encountered in the workplace only and pose “a hazard to which the employee would [not] have been equally exposed apart from the employment.” Fetterman, 23 0 Va. at 258, 336 S.E.2d at 893. The relevant question thus becomes, whether an employee f aces the hazards posed by

school bus steps as often outside of emp loyment as while on the job. The answer, of course, is no. Absent being a school system em ployee (and perhaps the occasional field trip), most adults do not encounter school bus steps at all let alone with the- 9 - frequency necessary to render them a risk of the neighborhood. In testimony accepted by the Commission, claimant, a school system employee , testified that she had encountered school bus steps only five times as an adult. Simply put, unlike “normal” building steps, school bus steps (at least those wit h these dimensions) are not a part of most p eople’s everyday life and simply are not encountered by most people most every day. 3 Thus, they are not a risk of the neighborhood, and the Commission di d not err in concluding that claimant’s fall arose out of her employment. II. Admission of and reliance on expert opinion In general, “[t]he question wheth er a witness is qualified to testify as an expe rt is largely

within the sound discretion” of the lower tribunal, and therefo re, we only reverse such a decision if it constitutes an abuse of that discretion. Jackson v. Qure shi, 277 Va. 114, 121, 671 S.E.2d 163, 166-67 (2009) (internal quotation marks and citations omit ted); see also Lynchburg Foundry v. Tune, 1 Va. App. 295, 299, 338 S.E.2d 645, 647 (1986 ) (adopting abuse of discretion

standard for review of Commi ssion decisions regarding qualifica tions of experts). “An abuse of discretion occurs only when ‘reas onable jurists’ could not disa gree as to the proper decision. This principle necessarily implie s that, for some decisions, co nscientious jurists could reach

different conclusions based on exa ctly the same facts — yet sti ll remain entirely reasonable.” Hamad v. Hamad, 61 Va. App. 593, 607, 739 S.E.2d 232, 239 (2013 ) (internal citation omitted). Furthermore, to the extent thatthe issue involves the Commissi on’s interpreta tion of its own rules, we review the Commissi on’s action defer entially and will reverse only if its action is

3 Even assuming that bus steps mee ting the Virginia School Bus S pecifications also would be standard bus steps on a pub lic transit bus, a church b us, and a Greyhound, the analysis would be the same. Although the n umber of adults encountering steps on these types of buses on a regular basis is larger tha n the universe of adults who regul arly encounter school bus steps, we cannot say that, as a matter of law, such encounters are suffic iently frequent to classify “bus steps” as a risk of the neighborhood.- 10 - arbitrary and capricious . Jenkins v. Webb, 52 Va. App. 206, 21 1, 662 S.E.2d 633, 635 (2008) (citation omitted). Employer, citing the Virginia Rules of Evidence and appellate decisions regarding the qualification of experts in circu it court proceedings, argues t hat the Commission erred “in finding that Dano Holland’s experttestimony was admissible and relying on Mr. Holland’s expert testimony.” We disagree. First, we note that neither the V irginia Rules of Evidence nor appellate decisions regarding those Rules are bindi ng on the Commission regarding t he admission of expert testimony. Pursuant to Rule 2.2 of the Rules of the Commission , the Commission “is not bound by statutory or common law rules of pleading or evidence nor bytechnical rules of practice.” Given Rule 2.2, we repeatedly have held that “the [C]ommission is not bound by common law rules of evidence, but may adopt whatever procedures it sees fi t so long as they ‘protect the substantial rights of the parties .’” Ceres Marine Terminals v. Armstrong, 59 Va. App. 694, 702, 722 S.E.2d 301, 305 (2012) (quoting Rios v. Ryan, Inc. Cent., 3 5 Va. App. 40, 44-45, 542 S.E.2d 790, 791-92 (2001)). Accordingly, the Commission has tremendous latitude in determi ning whether to admit and eventually rely on expert test imony in an individual case. As we have observed regarding the expert qualifica tion decision of anothe r adjudicative body that similarly is not bound by the Virginia Rules of Evidence, the ultimate decision of what [e xpert qualification] standard s hould be applied belongs to the Board; i t is free to adopt the tradit ional Virginia standard, the more stri ngent medical malpractice stand ard, or a lesser standard so long as the chosen standard is rational , is otherwise consistent with Virginia law, a nd provides determinin g principle[s] that can be app lied consistently and that do not r educe the qualification decision to mere whim.- 11 - Va. Bd. of Med. v. Zackrison, 67 Va. App. 461, 480, 796 S.E.2d 866, 875 (2017) (internal quotation marks and citation omitted). Nothing about the Commission’s decision to allow and eventuall y rely on Holland’s testimony offends these principle s. It is undisputed that Holl and is a structural engineer who, through his education and experience, is familiar with building design and the international building code, which sets desi gn specifications for “normal” bu ilding steps and stairs. Accordingly, he provided the fact finder with an objective basel ine for the height, width, and depth of a “normal” building step against which the bus steps i nvolved in the accident could be compared. 4 Because claimant was required to establish that her fall was from something other than “normal” steps, this objectiv e information was relevant an d provided useful information to

the factfinder. 5 Accordingly, the Commission did not abuse its discretion in a dmitting and relying upon Holland’s testimony. Employer’s arguments to the c ontrary are unconvincing. Contra ry to employer’s assertion, Holland’s testimony a s to the difference between the height of the bus step as

4 Ironically, an argument employer advanced demonstrates the ben efit of Holland’s testimony regarding “normal” bu ilding steps. Focusing on a por tion of the deputy commissioner’s opinion, employer argues that it was error for t he deputy commissioner to rely on claimant’s “subjectiv e perception” that the bus steps were s teeper than normal stairs and that objective evidence of the difference is necessary. This argume nt fails for two reasons. First, claimant, through the testimony o f Holland, objectively establi shed the height of “normal” steps, allowing the factfinder to contra st that height with the object ive measurements of the bus steps involved in the accident. S econd, the deputy commissioner did not base his conclusion on the claimant’s subjective percep tion. Although, as employer notes, he did write that claimant “perceived [the bus steps] were steeper than [normal] steps . . . ,” this was not the basis for the deputy commissioner’s conclusion. In the very next sentence, t he deputy commissioner states his conclusion that “[i]ndeed [th e bus steps] wer e” steeper tha n normal steps. Any suggestion otherwise misstates the de puty commissioner’s opinion.

5 Our conclusion that the Comm ission did not err in admitting an d relying upon Holland’s testimony should not be read as requiring such testimony to est ablish that a step or anything else is not a risk of the neighborhood. That expert testimony is he lpful in answering such questions does not mean it is required.- 12 - measured in this case and a “ normal” building step did not impe rmissibly invade the province of

the Commission as to the ultima te issue. Only the Commission c ould conclude that the bus step

at issue was not a risk of the neighborhood, and Holland did no t offer an opinion on that question. Thus, although his opini on provided an objective, fa ctual basis for the conclusion that the Commission ultimately reach ed, his testimony did not invade the province of the

Commission. Additionally, contrary to employe r’s assertion, Holland’s stat ed unfamiliarity with other building codes or the standard f or school bus steps in Virginiadid not require rejection of his testimony. First, as noted above , claimant had to establish th at the steps were different than normal building steps and not necessarily normal bus steps rega rdless of the fact that these steps were on a bus. Thus, a lack of familiarity with normal bus ste ps was not disqualifying. Furthermore, questions about the limits of Holland’s knowledge provided the opportunity for cross-examination, an opportunity of which employer took advant age. However, Holland’s unfamiliarity with other building codes and standards for bus s teps goes to the weight a factfinder may wish to give his testimony, not its admissibilit y. Simply put, such unfamiliarity does not negate the Commission’s conclusion that he had suffici ent knowledge and experience to provide admissible, expert tes timony. Accordingly, the Commiss ion did not abuse its discretion in admitting and ultimately relying upon Holland’s testimony.

CONCLUSION For the foregoing reasons, the decision of the Virginia Worker ’s Compensation

Commission is affirmed.

Affirmed.