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“I Missed a Step Descending a Ladder.” This Description May No Longer be Enough in Virginia

On January 13, 2025, the Full Commission reviewed a previously entered Opinion (June 28, 2024) finding that the claimant had failed to prove an injury by accident arising out of employment in the matter of Beenish Ahmed V. Wal-Mart Associates, Inc. The Full Commission affirmed the initial opinion, that the claimant had failed to meet her burden to prove her injury arose out of added-risk of her employment. The analysis the Full Commission applied will likely have significant effects on the Commission’s application of a “reasonable inference” that the cause of any ladder-related fall was a work-related risk.

The reasoning of the Full Commission for affirming the previous decision represents a small but significant shift in how and under what circumstances the doctrine that ladders are “in and of themselves . . . dangerous” and therefore present an increased risk, Basement Waterproofing Drainage v. Beland, 43 Va. App. 352, 360 (2004), should be applied. This line of ladder related cases begins with Beland, and was further developed Taylor v. Walmart, Assocs., Inc., JCN VA00000899121 (Oct. 29, 2014), where the Commission applied Beland and found the claimant’s injury was caused by the increased risk presented by ladders when she missed a step while descending a normal ladder and fell backwards. See also Taylor v. Walmart, Assocs., Inc., JCN VA00000899121 (Oct. 29, 2014) (applying Beland and finding the claimant’s injury was caused by the increased risk presented by ladders when she missed a step while descending a normal ladder and fell backwards). With those decisions, and several others (discussed below) the Commission established that claimants should receive a reasonable inference that the cause of the fall was a work related risk if the claimant was injured descending a ladder and missed a step.

In Woody v. Walmart Associates, Inc., JCN VA00001129054 (Feb. 16, 2017), “[the Commission] held that if a ladder had ‘rungs rather than steps, that distinction is of no consequence.’” Woody was then later cited in Sanders v. Wal-mart Associates, Inc., JCN VA00002177482 (Sept. 20, 2024), where again the Commission considered the importance of a ladder/step-stairs distinction: there, the Commission found that the contention that “the top stock cart more closely resembled a stepladder than [an] A-frame ladder” was a “distinction without a difference.” In Sanders, the evidence established that, “Descending the top stock cart’s ladder while holding merchandise in his hands required the claimant to face the ladder while stepping backwards.” Id. [The Commission] found that the manner in which the claimant was required to perform his work exposed him to a risk which caused him to misstep and fall, and consequently his injury arose out of the employment. Id. This means that Sanders could also stand for the idea that, despite the Commission saying “rungs rather than steps [is a] distinction [of] no consequence,” Id, in a situation where the ladder had stairs, or the status of ladder vs stairs is in question, the manner in which the claimant was required to perform his work may also be considered. Specifically, whether the manner of work required the claimant to descend the structure as you would a ladder (facing the ladder).

In the instant case, the claimant described the mechanism of injury in the following manner: At the time of the accident, the claimant was working as an “overnight coach” for the employer. Her job included making sure the store was stocked for the next day. The claimant was stocking a top shelf on the breakfast cereal aisle using a “top stock cart,” (this is the same type of cart that the Commission considered in Sanders). She described the top stock cart as a ladder with three steps and two handrails. It is attached to a cart, and the stairs come out and down when a button is pushed. When the stairs are out, the cart cannot move. She described: “So, I got on the ladder and put that case on our top stock. And when I tried to get down from ladder, I missed the two steps from the ladder and get down on the floor. Not that I fall on the floor, but I had my whole weight on my left side and my right side was in the air.” (Tr. 24.) She twisted but she did not fall. She held the right rail with her right hand to secure herself, but her right leg was hanging on top.

After weighing the claimant’s testimony from hearing and the other materials in the record, the Full Commission concurred with the earlier ruling that the record does not contain sufficient evidence from which they could infer that the top stock cart ladder the claimant was descending presented an increased risk. Unlike in Sanders, the court stated that because it was unknown whether the claimant was descending the top stock cart while facing forwards, as one descends ordinary stairs, or whether she was facing backwards, “the claimant’s description of the device she was using and the manner in which she was using it was insufficient for us to find that her activity was inherently dangerous.” Beenish. Therefore, specifically because the facts in evidence failed to establish how the claimant was descending the ladder (forwards or backwards), the Commission stated that Beland and its progeny do not apply.

Because the Full Commission determined that the claimant in Beenish was not entitled to a reasonable inference that the cause of her fall was a work-related risk, they then continued their analysis regarding other possible added-risks. The claimant acknowledged in her testimony that the top stock cart had no defects and was working as expected. She was on the top step and was descending the ladder when the accident occurred. There was nothing on the steps that caused her to slip and her hands were empty. She denied slipping and testified that she missed a step when she was getting down. Her left foot that missed the step landed directly on the floor. She did not notice the cart moving when she missed the step.

Ultimately, the claimant’s description failed to meet her burden of proof regarding any alternative added-risk posed by the activity or the ladder. Therefore, the Commission affirmed the original decision that the claimant failed to prove an injury by accident arising out of the employment.

So bottom line: Prior to the decision being issued in Beenish, receiving the reasonable inference that the cause of a fall was a work-related risk required that claimants prove they were injured while descending a ladder (or step-stairs, as the distinction is without difference per Sanders), and perhaps that some requirement/aspect of your duties also meant you were exposed to an added risk which caused the misstep and fall. With the analysis applied by the Full Commission in Beenish, the Commission appears to have shifted away from simply asking “Did you miss a step while descending a ladder?” before applying the reasonable inference of added risk. Going forward, it seems the question from the Commission in these kinds of cases is more likely to be, “were you descending a ladder (or stair-steps) by facing the ladder and stepping backwards?” The Full Commission were silent on the inherently dangerous status of descending a ladder while facing away and stepping forward, but after Beenish, it appears that how you descend the ladder must be clearly established in order to receive that reasonable inference that the claimant was injured due to an added-risk of their employment.

 


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