TSEDALE M. DAWIT
v.
SP PLUS CORPORATION XL INSURANCE AMERICA INC, Insurance Carrier
SEDGWICK CLAIMS MANAGEMENT SERVICES, INC, Claim Administrator
Jurisdiction Claim No. VA00001708797
Claim Administrator File No. C060031615000101600
Virginia Workers’ Compensation
Virginia In The Workers’ Compensation Commission
March 17, 2021
Date
of Injury February 15, 2020
Eric
S. Wiener, Esquire For the Claimant.
Matthew J. Sheptuck, Esquire For the Defendants.
REVIEW
on the record by Commissioner Marshall, Commissioner Newman,
and Commissioner Rapaport at Richmond, Virginia.
OPINION
MARSHALL Commissioner
The
claimant requests review of the Deputy Commissioner’s
July 24, 2020 Opinion which found she failed to prove her
injuries arose out of her employment and denied her claim. We
REVERSE and REMAND.
I.
Material Proceedings
On
February 15, 2020, the claimant fell while attempting to sit
down at her desk, while preparing for her work shift. Her
claim sought medical benefits and alleged multiple injuries
due to the fall.[1] The defendants denied the
claimant’s injuries arose out of and during the course
of her employment. They also defended on causation.
The
Deputy Commissioner found the claimant did not prove a
compensable injury. She found the claimant’s testimony
did not establish how the accident occurred, and that the
claimant “failed to prove that the accident was caused
by any work-related risk or significant work-related
exertion.” (Op. 8.) She found the claimant was in the
course of her employment at the time of the fall. Because she
ruled the injuries were not compensable, she did not reach
the issue of causation.
The
claimant requests review.
II.
Findings of Fact and Rulings of Law
The
claimant worked for the employer validating parking at a desk
inside a shopping mall. Shortly before her February 15, 2020
shift, she stood up to greet her supervisor. When she tried
to sit down afterwards, the chair was no longer underneath
her, causing her to fall to the floor. The claimant testified
that when she “went back to sit . . . I might have
pushed [the chair] . . . with my leg and that’s what
could have happened. And I thought that it was still there
and I sat down and I fell.” (Tr. 9.)
During
cross-examination, the claimant stated that her job did not
require any unusual maneuvering or balancing. The chair moved
easily because it was on a hard surface. (Tr. 25.) On the day
of the accident, she thought the chair was underneath her
when she sat down, but she did not see the chair move before
sitting. (Tr. 24.) She testified that it was “possible
[that] I might have touched the chair,” and that it
“might have moved back,” but she didn’t
know “how I actually moved it back.” (Tr. 25.)
The
employer’s senior facility manager, James Hobbs,
testified that he met with the claimant after her accident.
The claimant told him that “the chair slipped out from
under her when she was going to sit down,” but she did
not say what caused the chair to move. (Tr. 31.)
The
claimant sought treatment at the emergency room on February
16, 2020. The medical history states, “yesterday
evening, she was attempting to sit in a chair, but she missed
the chair and fell backwards.” (Cl.’s Ex. 1-1.)
On February 18, 2020, the claimant treated with Dr. Yared T.
Tadesse, who noted that the accident occurred when the
claimant missed the chair and fell on her back while trying
to sit. (Cl.’s Ex. 1-2.)
To be
compensable, an injury by accident must arise out of and in
the course of employment. Va. Code § 65.2-101; Cty.
of Chesterfield v. Johnson, 237 Va. 180, 183 (1989). The
claimant bears the burden of proving her injury arose out of
her employment. Mktg. Profiles, Inc. v. Hill, 17
Va.App. 431, 433 (1993).
On the
particular facts of this case, the only rational...
