IN THE WORKERS’ COMPENSATION COMMISSION
JOSE LEONEL CANALES, Claimant Opinion by DIAMOND
THE ROOFING CENTER, INC., Employer
WAUSAU UNDERWRITERS INSURANCE COMPANY, Insurer
Daniel P. Barrera, Esquire
for the claimant.
S.T. Mullins, Esquire
for the employer.
Susan A. Evans, Esquire
for the insurer.
REVIEW on the record before Commissioner Dudley, Commissioner Tarr, and Commissioner Diamond at Richmond, Virginia.
Each party seeks Review of the Deputy Commissioner’s February 2, 2000, Opinion. Because the record was thoroughly developed and the issues thoroughly briefed in this case, we decline the defendants’ request to present oral argument on Review. Code 65.2-705(B); Barnes v. Wise Fashions, 16 Va. App. 108, 112, 428 S.E.2d 301, 303 (1993).
On March 17, 1999, the claimant, a roofer’s helper, fell approximately 30 feet from a roof while working for the employer delivering wooden roofing shingles. At the November 1, 1999, hearing, the parties stipulated that the claimant sustained injuries to his head, right shoulder, face, collarbone, and left leg, and that these injuries occurred “in the course of” his employment. The parties further stipulated that the claimant was totally disabled because of the accident. In addition to a willful misconduct defense, the defendants asserted that the accident did not “arise out of” the claimant’s employment, but was an unexplained fall.
The claimant testified that he worked for the employer since August 1995. He stated that he was familiar with the employer’s safety rules, and that the employer taught him how to go up on a roof safely. He further stated that he was aware that he was required to be “tied off” the entire time he was on the roof, and that tying off was specifically addressed at safety meetings. He testified that he has never been reprimanded or disciplined by the company for not following the rules. He received the company’s “Helper of the Year’ award in 1996 for following all of the company’s rules. He explained that he earlier injured his lower back when he fell off of a roof, but that his fall was arrested by proper use of a safety harness.
The claimant testified that he could recall climbing up to the roof at the worksite on March 17, 1999, and that he was wearing a safety harness attached to a safety line. He explained that the safety line connects to the safety harness by means of a clip attached to the safety line, which is itself then clipped to a ring on the back of the safety harness located behind the claimant’s head. He stated that he could not see whether the clip was hooked properly to the harness because it attaches behind him, but that he checked with his hand to make sure it was attached, though he did not tug on the safety line.
With regard to tying off the safety line that day, the claimant testified that all he could remember was tying off to the employer’s “boom,” or crane, once he was on top of the house. He stated that after he tied off to the boom, the other end of the safety line was attached to the back of his safety harness. He denied using roof brackets on the roof, but heard them discussed at safety meetings, and was aware that brackets were kept in the truck. The claimant testified that he has no recollection of having removed or unclipped his safety line while he was on the roof, and he could think of no reason that he would do so. He testified that he could perform his entire job without unhooking his safety line. The last thing prior to the accident that he could recall was taking a bundle of shingles to a particular place on the roof. When questioned whether he knew what caused him to fall, he answered “No.”
Morris Gomez worked for Shiner Roofing on March 17, 1999, and testified that he witnessed the claimant unloading cedar shingles from a truck. Mr. Gomez was on the roof, and he first noticed the claimant when he arrived in the employer’s truck. He testified that the roof of the house was “a little bit steep,” and stated that the old shake roof shingles were wet from a rain the night before. He noticed that the claimant was wearing a safety harness, and that when he started working, his safety harness was attached to the boom with a safety line. He worked with the claimant unloading the shingles for about a half an hour before the accident. He stated that the claimant had two safety lines connected together because “one wasn’t long enough to reach the spot where they were going to unpack everything.”
Mr. Gomez testified initially that he saw the claimant fall. He stated that the last time he saw the claimant before the accident, the claimant’s safety harness was connected to the safety line, which in turn was attached to the boom. He testified that approximately one minute passed between the time he last saw the claimant and the fall. During this minute, Mr. Gomez was walking towards the boom to get another bundle of shingles. He described what happened next as follows: ”I heard him scream and then I saw him slide down, and then I came to notice that he wasn’t attached.” He testified that he saw the claimant slipping down the roof and heard him yelling “Hey! Hey!” The safety line was not attached when the claimant fell. It remained on the roof, attached only to the boom. When asked what he believed caused the claimant to fall, Gomez testified as follows:
He was trying to move the shakes from one side to the other so that he could make more room for the things that were — for the ones that were on the truck. Then he turned around and moved toward a spot that we had not fixed yet that was wet. And then that is how he fell down.
On cross-examination, however, Mr. Gomez conceded that he did not see the claimant during the one minute that he was walking to get the shingles, that he did not see the claimant start to fall, and that when he first noticed him he was already falling. He testified that the claimant slid for about 10 seconds before falling off the roof.
Jesus Ramos testified that he worked for Shiner Roofing on March 17, 1999, and was also present when the claimant fell. He stated that the roof being worked on was steep, and that the wood shingles were wet. He was working on the roof, and observed the claimant climb up to the roof. He explained that the claimant was wearing a safety harness that was connected to a “rope,” which in turn was connected to the boom. Mr. Ramos testified that although he did not see the claimant actually attach the safety line, he noted that the claimant was “always”connected to it. Mr. Ramos stated that he did not see the claimant fall, but noted that he was still wearing the safety harness after his fall. He stated that the safety line was not attached to the claimant’s harness, but remained attached to the boom from the employer’s truck. Although he did not specifically inspect the claimant’s harness, he did not see anything broken or inoperable about it.
Manuel Jiminez testified that he worked for the employer and supervised the crew delivering materials for the employer on March 17, 1999. He worked with the claimant for approximately one year, and worked with him that day. He testified that the claimant had a “really good” reputation for safety. He never reported or reprimanded the claimant for failing to follow safety rules.
Mr. Jiminez testified that on March 17, 1999, wooden shingles were moved from a truck to the roof by means of a conveyor built into the truck. The claimant was assigned to climb to the roof and move the shingles as they came up the conveyor. He stated that the house was two stories high in the front, but because of the basement level, it was about three stories high in the back.
Mr. Jiminez testified that he saw the claimant put on his safety harness. To his knowledge, there was nothing wrong with the harness. He observed the claimant climb to the top of the roof, unattached to a safety line, and, once there, attach one end of the safety line to his harness and the other end to the boom. He knew of nothing wrong with the safety line. Once the claimant attached the clip, Mr. Jiminez did not see the claimant disconnect from the safety line. He stated that he could think of no reason why an employee would unhook the safety line from the harness once on the roof.
He testified that the crew usually did not use two safety lines connected together, but sometimes they would if there were two in the truck. The employer’s safety lines were either 20 or 30 feet in length. There were two available to the claimant on that day because Mr. Jiminez himself was unable to climb up on the roof and help him. He explained that two safety lines might be used together to reach further down the roof, because the weight of the shingles delivered to only one spot on the roof would be too heavy for the house to bear. He testified that the decision to use one or two safety lines was left up to the person who is to be up on the roof. He was not aware that anyone working for the employer had ever been disciplined for using two safety lines together.
The last time Mr. Jiminez saw the claimant before the accident was shortly after the claimant tied off to the boom. He did not see the claimant fall, but testified that the other men on the roof told him that the claimant had fallen. When he went over to find him lying on the ground, Mr. Jiminez observed that the claimant was still wearing his safety harness, but there was no safety line on the ground. He testified that he examined the claimant’s harness after the accident and found it to be in good condition. Specifically, he found the ring where the safety line attaches to be in good condition. He could not say how long he spent examining the harness, but admitted that he examined it right before he took it off the claimant. The claimant was unconscious and bleeding at the time. Once he took the harness off of the claimant, he believed he placed it in a toolbox. He did not know what happened to it after that.
Larry Paige testified that he is currently Assistant Manager for the employer, but that in March of 1999 he worked as a dispatcher. Mr. Paige testified that on March 17, 1999, he heard that the claimant had fallen, and he immediately went to the scene of the accident. He testified that when he arrived, he went up on the roof of the house. He stated that he found two safety lines connected together, which in turn were connected to the employer’s conveyor or boom. There was no roof bracket present. Mr. Paige testified that he was concerned because a roof bracket was necessary on that job. He stated that they were allowed no more than a 6-foot free fall. Therefore, in order to have no more than a 6-foot fall on one safety line from anywhere on the roof, you needed a roof bracket in the middle of the roof. He opined that with the two safety lines connected together, the claimant would have hit the ground even if the safety lines had been properly connected to his safety harness.
Mr. Paige testified that when he climbed up to the roof, he used the same safety line that the claimant had been using to attach a roof bracket in the middle of the roof. He then attached the safety line from the bracket to his own safety harness, and he noted nothing wrong with the safety line when he used it. He estimated that that the roof was between 30 and 40 feet long, and the claimant’s fall had been about three stories or between 20 to 30 feet. He then took photographs of the accident scene for the employer’s safety manager and the police.
William Alley testified that he was the employer’s Safety Manager, and had held that position since 1993. Mr. Alley testified that he trained all newly hired employees and, if they are Spanish speakers, he has a translator present for the training. Safety rules have been translated from English to Spanish as well. The claimant last underwent a review of fall- protection rules on February 20, 1999. Mr. Alley testified that the job site safety rules were enforced, and he described in detail how he performed site inspections and explained the penalties for particular rule infractions. He explained that if he arrived at a job site and an employee was found not wearing his or her fall protection, “they are terminated right on the spot.” The harsh penalties for fall protection equipment violations were imposed for violations of the 100% tie-off rule, failure to use roof brackets, and having no more than a 6-foot free-fall on a safety line.
Mr. Alley testified that he received a call informing him that a fall had occurred, and he immediately drove to the site. When he arrived, a Fairfax County Police officer took him to the place where the claimant had fallen, but would not let him on the roof until their investigation was complete. He testified that he could see from ground level the two safety lines as they lay on the roof. He noted that they were clipped to the employer’s conveyor.
Mr. Alley described the clips on the safety lines as “double safety lock clips.” He explained that in order to open the clip, it was necessary to compress the back of the clip first, before the front clip would open. Therefore, both the front and the back of the clip must be compressed at essentially the same time to open the clip fully. Mr. Alley agreed that the claimant could not see the ring to connect the safety line, but added that he could tell if it were attached properly by pulling on it. He testified that it was unlikely that the claimant improperly attached the safety line clip to the ring on his harness because, due to its heavy weight and steel construction, it would have fallen to the roof at some point during the claimant’s extended period working on the roof. Mr. Alley testified that it was unlikely that the webbing of the safety line would get caught in the clip, or that the clip would improperly attach to the ring on the harness.
Mr. Alley testified that being on the roof without a safety line attached to the safety harness “violates our fall protection program completely.” He stated that it was permissible to tie the harness off to the end of the boom if the boom extended to the peak of the roof. Otherwise, the employees were required to establish an anchor point with a bracket. He explained in some detail how a roof bracket allowed employees to safely work further away from the boom. He noted that in the present case, however, the boom only extended to the garage area, not to the peak of the main roof from which the claimant fell. There was no evidence that the crew had been using roof brackets.
Mr. Alley admitted that he had no evidence that the claimant voluntarily disconnected his safety line that day. However, he stated that he determined that the claimant violated a known safety rule because he was, in fact, disconnected from his safety line when he fell. Mr. Alley testified that connecting two safety lines was not a violation of a safety rule or regulation if the safety line as a whole does not allow more than a 6-foot free fall from the roof area. He noted that in the present case, the two safety lines together would have resulted in more than a 6-foot free fall. On cross-examination, however, Mr. Alley conceded that the 6-foot free fall rule was not contained in the company’s safety rules, stating that he verbally instructed them on it. He agreed that there were no written Spanish translations of the verbal safety rules.
Daniel Worley, a regional operations manager for the employer, testified that he went on the roof at the accident site after the claimant’s fall. He found two safety lines on the roof, but could not recall whether they were hooked together. He testified that there was no safety rule regarding hooking lines together. He stated that he inspected the safety line on the roof when he hooked himself onto the one that was connected to the boom. By the time he got on the roof, the other line used by the claimant was hooked to a roof bracket, which had been placed on the roof following the accident and was being used by Larry Paige. He acknowledged that the 6-foot free fall rule was not written in the safety rules, but added that it was stressed to their employees at every safety meeting. The employer’s rules stated that employees must tie off at the peak of the roof and remain tied off at all times. He further testified that the length of one line was insufficient to reach from the boom to the point where the claimant fell.
When asked if he had any evidence that the claimant intentionally removed the safety line from his harness, Mr. Worley testified that it was obvious that the claimant was unhooked because he fell without a line connected to his harness. According to Mr. Worley, the line must manually be removed. He conceded, however, that this assumed that the safety line had been properly connected to the harness in the first place. Mr. Worley was not aware of any defect in the safety equipment. He also stated that he was aware of no witness who observed the claimant disconnect his safety line while on the roof.
The defendants argue that the claimant’s accident was an “unexplained fall” and therefore non-compensable. According to the defendants, this case is indistinguishable from PYA/Monarch v. Harris, 22 Va. App. 215, 468 S.E.2d 688 (1996), in which the Court of Appeals reversed an award of benefits to an employee because the employee’s injuries were the result of a “noncompensable, unexplained accident.”
Harris involved a truck driver who was injured when he fell out of his cab. Although he did not recall how he fell, some of the theories advanced included that he was “coldcocked,” that he slipped on ice covering the truck’s cab, and that he suffered “cardiac irregularity, decrease of glucose in the blood, dizziness, or slipping while he exited the truck.” 22 Va. App. at 220, 468 S.E.2d at 690. The court rejected the Commission’s conclusion that the height and iciness of the truck cab were an “added risk” of his employment and therefore the cause of his fall, reasoning that to so conclude would effectively create a presumption that the fall was caused by the employment.
Here, however, the claimant’s fall was not “unexplained.” Unlike the employee in Harris, whose fall out of a truck cab was not witnessed and who could not recall the specifics of the fall, the claimant slipped down a steep, damp roof for ten seconds and fell from the end of the roof for 30 feet. A fellow employee witnessed him slipping down the roof. If any element of this accident is “unexplained,” it is why the claimant initially began slipping. Regardless, he slipped, and at the end of his slip, he fell 30 feet and severely injured himself.
The Court of Appeals explained in Harris why the fall from the truck cab was not compensable as follows:
[I]f the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises “out of” the employment. But [the arising out of test] excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment.
Id. at 222, 468 S.E.2d at 691 (citations omitted). Applying this analysis, the court concluded that the employee failed to prove that the fall from the truck was caused by his employment. The truck’s iciness and height, standing alone, did not “establish the basis for the fall,” nor was there any evidence that the claimant “slipped or tripped” or “lost his grip.” Id. at 224, 468 S.E.2d at 692.
Here, on the other hand, the claimant’s fall was witnessed. It occurred after the claimant slid down the steep, damp roof for approximately ten seconds. Moreover, there can be no doubt that the claimant would not have been equally exposed to a thirty-foot fall apart from his employment as a roofer’s helper. Therefore, we conclude that the claimant established that the March 17, 1999, accident arose out of the employment.
We next turn to the employer’s willful-misconduct defense. The claimant argues on Review that the deputy commissioner erred in concluding that the employer met its burden of establishing that the March 17, 1999, accidence was caused by the claimant’s willful misconduct. The deputy commissioner found that the “uncontradicted evidence establishes that the claimant was not wearing a safety line while working on the roof, as required by the employer’s safety rules, when he fell on March 17, 1999.” This finding was based on the fact that the claimant’s safety harness was not hooked to the safety line when he was found after the fall. The safety rule at issue was the requirement that employees remain tied-off at all times while working on a roof.
Three eyewitnesses to the claimant’s actions immediately preceding the fall each testified that they saw the claimant tied off while he was on the roof. The deputy commissioner found, however, that the claimant must have unhooked himself, reasoning that his testimony that he did not unhook from the safety line before the fall was not credible, and that circumstantial evidence supported a conclusion that there was no defect in his safety equipment. According to the deputy commissioner, the claimant “presented no evidence to explain why his lanyard was not attached to his harness” when he fell.
We believe the deputy commissioner incorrectly placed the burden of proof of this issue on the claimant. The evidence clearly established that the claimant was tied-off shortly before his fall. That the claimant was next found on the ground without being attached, as well as the safe and sturdy design of the safety equipment, albeit not the actual equipment used by the claimant when he fell, was the only evidence to support the conclusion that the claimant intentionally unhooked himself. The employer asks us to speculate that the claimant unhooked himself, but it is just as reasonable to speculate that the claimant incorrectly hooked himself up. Accordingly, we find that the employer did not meet its burden.
Moreover, Code 65.2-306 requires the employer to show that the willful misconduct caused the claimant’s injury. The evidence established, however, that even if he had been tied off, the claimant would have been injured in the fall. The length of the safety line was such that the claimant would have struck the ground even if connected.
Finally, the deputy commissioner correctly concluded that the employer failed to enforce the safety rule in question. The claimant’s supervisor testified that he witnessed the claimant, as he ascended to the roof on March 17, 1999, fail to connect to the safety line, but then tie off to the boom after he reached the roof. The safety rule, however, required employees to be tied off at all times, including while ascending to a roof. Thus, on the date of the accident, the employer did not enforce the safety rule that the claimant allegedly violated.
For these reasons, the decision by the deputy commissioner that the claimant was entitled to workers’compensation benefits for the March 17, 1999, accident is AFFIRMED.
This matter is removed from the review docket.
TARR, COMMISSIONER, Dissenting:
I respectfully dissent.
The Commission improperly relies upon the testimony of Morris Gomez to find that the claimant slipped on a steep, damp roof, which was a condition of his employment. This factual conclusion is mere inference and not based upon the actual testimony of the witness. Mr. Gomez did not observe what caused the claimant’s fall. He was not watching the claimant when the fall started.
What occurred at the precise moment when the claimant initially began to fall is the essential inquiry in this case. No witness presented testimony regarding what occurred at this critical moment. The claimant candidly testified that he did not know what caused him to fall.
The majority assumes the fall was caused by a slip on the wet roof because the claimant was slipping down the roof when Gomez turned to observe the claimant after the fall began. Under this assumption, any fall from a roof would be compensable. This analysis is suggestive of the positional risk doctrine and ignores the distinction between idiopathic and unexplained falls so carefully set forth by the Court of Appeals inPYA/Monarch v. Harris, 22 Va. App. 215, 468 S.E.2d 688 (1996).
Because the claimant failed to produce any evidence of what actually caused him to fall, it is impossible to conclude that the requisite causal connection between the claimant’s employment and the accident has been established. For these reasons, I would REVERSE the Deputy Commissioner’s Opinion that the claimant’s accident arose out of his employment.
This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty (30) days of receipt.