THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael A. Kernbach for appellant.
Roberta Ann Perko (Christopher M. Kite; Lucas & Kite,
PLC, on brief), for appellee.
Present: Judges Beales, O'Brien and Senior Judge
Annunziata Argued at Alexandria, Virginia
RANDOLPH A. BEALES JUDGE
Shannon Conner, a former corporal for the City of Danville
Police Department, appeals the decision of the Virginia
Workers' Compensation Commission (the Commission) denying
her benefits for injuries that occurred when she slipped on
wet grass and almost fell while seeking additional shelter
from a storm. On appeal, Conner argues that the Commission
erred in concluding that her injuries did not arise out of
her employment, in finding that her injuries were caused by
an Act of God, and in concluding that Code § 65.2-301.1
did not apply to make her injuries compensable under the
Workers' Compensation Act.
filed several claims with the Commission for medical benefits
and for periods of wage loss benefits, alleging that she had
sustained a compensable injury by accident to her right knee
and lower back on February 24, 2016, while she was working as
a corporal for the City of Danville Police Department.
evidence presented at the hearing before the deputy
commissioner on Conner's claims showed that, on February
24, 2016, Conner and other officers from the City of Danville
Police Department were conducting surveillance at a duplex.
During the surveillance, the officers located a homicide
suspect. Conner and a fellow officer, Corporal Valerie
Jennings, began interviewing the suspect on the sidewalk
outside the duplex. They were going to move the location of
the interview to the inside of a police vehicle when Corporal
Jennings suggested that they continue the interview on the
porch of the vacant side of the duplex, while the other
officers executed a search warrant on the residence on the
duplex's other side. The porches of the duplex were
separated by a partition.
testified that the weather changed quickly during the
interview of the suspect. She stated that "it started
raining really hard" and "the wind started picking
up a great deal" and that it began hailing. The deputy
commissioner in her opinion noted that, in a deposition taken
prior to the hearing, Conner testified that "it was a
tornado moving through." She stated that, because of the
change in the weather, they decided to leave the porch and
move the interview to the other side of the residence where
the search warrant was being executed. Conner testified:
We had decided that we were going to try to move the suspect
over to that area [the other side of the duplex], so
Investigator Jennings is behind me. The suspect took off,
went off the porch, and I took a left turn off of the porch
onto the grassy area. It was hail[ing] and it was raining. I
proceeded to try to get inside when I slipped, my right leg
went towards the right, and the left side of my body twisted.
I almost fell, but I didn't completely fall. I caught
myself just before hitting the ground. And then I picked back
up and started running back into the residen[ce].
explained that she "was running. Well I guess you would
say trotting," at the time that she almost
Conner nor Jennings continued interviewing the suspect after
they left the porch. Instead, Conner testified that, when
they reached the other side of the duplex, they "were
just simply in there, assisting on the search warrant
itself." The deputy commissioner noted that, in
Conner's deposition testimony, Conner agreed that the
purpose of leaving the porch was to get out of the weather.
testified that as the day continued, her knee became painful,
and she reported her injury to her supervisor. She sought
medical treatment later that day and eventually learned,
through her continued treatment, that three discs in her back
had apparently been affected by her near fall and that there
was "a pinched nerve involved." She underwent back
surgery on July 14, 2016. On October 17, 2016, one of
Conner's physicians informed her that, even though her
condition may improve, she would not be able to perform all
of the necessary ...