Written by Bob McAdam, Esq.
Edited by Rachel Riordan, Esq.
One of the most common workers’ compensation fact patterns is an employee sustaining any injury in a stairwell or on steps. A recent decision from the Full Commission acts as a primer on adjusting some of the most common step cases in Virginia. The Deputy Commissioner and the Full Commission in Vickers v. E & M Management, LLC, JCN VA00001141682 (March 17, 2017) provide us with some useful practice pointers.
In Vickers, the claimant worked as a maintenance supervisor for his employer, and while visiting an apartment complex to perform an inspection, fell as he was descending some stairs. He described the stairway as having risers which were short and a tread which was narrow with a 1½ inch lip that “interfered with descending the steps.” He claimed to have almost fallen down the steps on two previous occasions because they were so narrow. The claimant testified that even with his heel backed all the way against the riser, his foot still hung over the step so that he had to turn his foot a little to the side in order to place his foot on the steps to descend them.
On the day of the accident, the claimant had descended three steps when the heel of his right foot hit the front toe of his left foot, causing him to spin around and fall down the remaining twenty steps to the bottom. He testified in his deposition that his left foot had been sticking out over the edge of the step because his feet were so long, but also said both his feet were facing straight forward as he descended the steps. In describing the fall at hearing, he stated that as he went to step down with his right foot, the heel of his right foot hit the front toe of his left foot because of the way his left foot was sitting on the step, turned to the side a little bit because his feet were so long. Once his right heel hit his left foot, he spun around and lost his balance and fell. When he stepped down with his right foot, instead of hitting the next stair tread, his right foot caught the front toe of his left foot, which was hanging over the step and “that’s what caused [him] to fall.”
Other pertinent evidence was that the rise of the steps measured 8 inches and the tread was 9 inches, which was in compliance with the building code at the time the building was constructed in 1970. The steps did not, however, meet the current building code, which allows a maximum rise of 7 inches and a tread of 11 inches. The building inspector testified that steps such as those in question were steep and sometimes hard to maneuver which is one reason the building code was changed over the years. The claimant did acknowledge that even had the steps been built to the current code standards, his shoe would still have hung over the stair treat by 1 ¾ inches.
The Deputy Commissioner held the stairs were not per se defective, despite the fact that they did not meet current code requirements. She also found that the claimant failed to prove that the accident was caused by the depth of the tread on the stairs, in part due to his acknowledgement that the toes of his left foot would have hung over the step even had they been up to current code. She concluded that he did not prove an unusual condition of the stairs caused his fall, but that he had simply crossed his right foot over his left foot due to a misstep, and that he lost his balance and fell. The Full Commission affirmed, finding the claimant failed to explain how the depth or height of the stairs caused his right foot to catch on his left foot.
In order to prevail, the burden was on the claimant to prove: (1) that the steps in question were either defective or unusual and; (2) that the defective or unusual condition of the steps caused the accident. In this case, the claimant cleared only the first hurdle by showing the stairs were steeper and narrower than is unusual today. He did not explain how the depth or height of the stairs caused his right foot to catch on his left foot, particularly when he admitted his left foot would have still hung over the step even had it been up to the current code. Thus, his claim failed as he could not show a causal connection between the conditions under which the work was required to be performed and the resulting injury.
When step claims are investigated the following information should be asked of the claimant:
- Was the claimant holding or carrying anything related to work?
- Were there any foreign substance on the steps?
- Were there any defects in the steps?
- Were the steps of normal rise and run and if not, how?
- Claimant’s shoe size.
- The mechanics of how the claimant walked up and down the steps.
- And finally, “Why did you think you fell?”
If the claim is that the rise and run are unusual, consider obtaining 1) the BOCA Code at the time of the construction of the building; 2) the current BOCA code, 3) the latest building inspection log of the building/steps conducted by the local government; (4) photographs of the steps in question; and (5) an expert witness such as a building inspector. If the cause of the fall was something other than the rise and run of the steps, focus on what the claimant alleges to be the specific cause of the fall and consider how a condition of the steps can be said to have led to the fall. If you can establish that the fall would have occurred regardless of the condition alleged by the claimant, you are on your way to a solid defense of the claim.