COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Frank and McClanahan
Argued at Richmond, Virginia
TBC CORPORATION AND
ACE AMERICAN INSURANCE
OPINION BY
v. Record No. 2224-06-2 CHIEF JUDGE WALTER S. FELTON, JR.
MAY 1, 2007
GREGORY STEPHENS
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Scott C. Ford (Brian A. Richardson; McCandlish Holton, PC, on
briefs), for appellants.
Eric S. Wiener (Curtis Daniel Cannon, on brief), for appellee.
TBC Corporation and Ace American Insurance (collectively “employer”) appeal a
Workers’ Compensation Commission (“commission”) decision awarding medical benefits to
Gregory Stephens (“claimant”) for an ankle injury he sustained on March 11, 2005. Employer
argues that the commission erred in finding that claimant sustained a compensable injury arising
out of his employment when he fell while discussing work-related matters with his supervisor at
his place of employment. Because we conclude that the commission erred in finding that
claimant’s injury arose out of his employment, we reverse.
I. BACKGROUND
Well-established principles require us to view the evidence in the record in the light most
favorable to the claimant, the prevailing party below. Boys and Girls Club of Virginia v.
Marshall, 37 Va. App. 83, 85, 554 S.E.2d 104, 105 (2001). So viewed, the evidence established
that claimant, an automobile service technician, sustained an injury to his left ankle when he fell
backward, after being touched by a fellow employee while he was talking with his supervisor
about work-related matters. During the conversation, claimant crossed his left leg over his right
leg and leaned against a counter for support. A co-worker, David Robles (“Robles”), approached
him from behind and, while placing his hand on claimant’s shoulder, unintentionally “made
contact with” the back of claimant’s left knee with his leg. As a result of the contact to his knee,
claimant fell backwards to the floor. He immediately felt pain in his left ankle, which was
caught under the bottom of the counter.
Claimant filed a claim with his employer for workers’ compensation benefits as a result
of his ankle injury. He sought temporary total disability benefits from March 14 through April 4,
2005, and medical benefits for as long as necessary. Employer denied the claim on the grounds
that claimant did not describe “an ‘injury by accident’ as defined in the Virginia Workers’
Compensation Act (“Act”) while ‘in the course and scope of [] employment’ . . . .” Claimant
appealed employer’s denial of benefits to the commission. Following an evidentiary hearing, a
deputy commissioner found that the claimant sustained a “sprained ankle that arose out of and in
the course of his employment” and awarded lifetime medical benefits.1 The deputy
commissioner specifically found that there was “not substantial horseplay in which [claimant]
was engaged and that there has been no allegation of an assault at work.”
The deputy commissioner granted employer’s request for reconsideration to address its
defense that claimant’s injury was caused by a “friendly greeting” and that claimant’s injury,
therefore, did not arise out of his employment. On reconsideration, the deputy commissioner
determined that the incident was not a “friendly greeting,” and affirmed its earlier decision that
the incident could not be classified as horseplay or assault. The deputy commissioner concluded
that claimant’s injury occurred when he was touched unexpectedly by a fellow employee and
1
The deputy commissioner denied temporary total disability compensation benefits,
finding the evidence insufficient to support that claim. Claimant did not appeal that decision.
-2-
again found that claimant’s injury occurred while he was “in the course of his employment
discussing automobile parts with his supervisor.”
On review before the full commission, employer argued that “claimant failed to prove
that a work related hazard caused his injury.” Claimant argued that the deputy commissioner’s
“ultimate factual determination is consistent with a finding that the injury resulted from a
unilateral act of horseplay,” thereby entitling him to benefits. (Emphasis added). The full
commission affirmed the deputy commissioner’s decision that “impliedly found” that the fellow
employee’s contact with claimant’s knee was “accidental, not intentional” and, that “[a]s the act
was not intentional, and the claimant was discussing work-related matters when the accidental
touching occurred, . . . [claimant] proved that the injury arose out of the employment.” This
appeal followed.
II. ANALYSIS
The sole issue on appeal is whether claimant’s injury arose out of his employment.
Under the Act, claimant must prove that he “‘suffered an injury by accident arising out of and in
the course of the employment.’” Virginia Employment Commission/Commonwealth v. Hale, 43
Va. App. 379, 384, 598 S.E.2d 327, 329 (2005) (quoting Code § 65.2-101). “Arising out of” and
“in the course of” are separate and distinct requirements. Bassett-Walker, Inc. v. Wyatt, 26
Va. App. 87, 92, 493 S.E.2d 384, 387 (1997) (en banc). Claimant must prove by a
preponderance of the evidence that he has satisfied each requirement. Id. “The phrase ‘in the
course of’ refers to the time, place and circumstances under which the accident occurred.”
County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). Neither party
disputes that claimant sustained an injury in the course of his employment.
“The phrase arising ‘out of’ refers to the origin or cause of the injury.” Johnson, 237 Va.
at 183, 376 S.E.2d at 74. To determine whether the cause of the injury is work-related, we apply
-3-
the actual risk test, “meaning that the employment must expose the employee to the particular
danger causing the injury notwithstanding the public exposure to similar risks.” Combs v.
Virginia Electric & Power Co., 259 Va. 503, 510, 525 S.E.2d 278, 282 (2000) (citing Lucas v.
Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972)). Thus, the actual risk 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
employment.”2 Id. at 509, 525 S.E.2d at 282. Whether an employee’s work-related injury arises
out of his employment “involves a mixed question of law and fact, which we review de novo on
appeal.” Blaustein v. Mitre Corp., 36 Va. App. 344, 348, 550 S.E.2d 336, 338 (2001).
The characterization of an injury as resulting from an “accident,” “assault,” “horseplay,”
“friendly greeting,” or “goosing,” without more, does not prove that an injury “arose out of” the
employment. Combs, 259 Va. at 509, 525 S.E.2d at 282 (citing In Re Employers’ Liab. Assur.
Corp., Ltd., 102 N.E. 697, 697 (Mass. 1913)). Claimant must prove that the injury was the result
of an actual risk of the employment. See Butler v. Southern States Coop., Inc., 270 Va. 459,
466, 620 S.E.2d 768, 772-73 (2005) (non-compensable injury resulting when an assault on
employee was personal and not directed against her as an employee or because of her
employment); Farmer’s Mfg. Co. v. Warfel, 144 Va. 98, 100, 131 S.E. 240, 240 (1926)
(compensable injury where assault stemmed from argument between co-workers about the
performance of work-related duties); Dublin Garment Co. v. Jones, 2 Va. App. 165, 168, 342
S.E.2d 638, 639 (1986) (compensable injury resulting from “the unilateral act of a co-worker
upon a non-participating claimant” where lengthy overtime work session was determined to be
motivation for co-worker’s conduct); Richmond Newspapers, Inc. v. Hazelwood, 249 Va. 369,
2
Virginia has expressly rejected the “positional risk” test used in other jurisdictions
“where simply being injured at work is sufficient to establish compensability.” Butler v.
Southern States Coop., Inc., 270 Va. 459, 465, 620 S.E.2d 768, 772 (2005).
-4-
375, 457 S.E.2d 56, 59 (1995) (psychological condition resulting from repeated “goosing” not
compensable as “goosing” was of a personal nature and not directed against claimant as an
employee or in furtherance of employer’s business). An injury that results from an accidental or
unintentional touching by a fellow employee, without proof that the injury resulted from an
actual risk of the employment, does not arise out of the workplace. See Combs, 259 Va. at 509,
525 S.E.2d at 282 (citing In Re Employers’ Liab. Assur. Corp., Ltd., 102 N.E. at 697).
In all proceedings before the commission, claimant argued that his fellow employee,
Robles, intentionally caused him to fall backwards and to injure his ankle, which was caught
under the counter as he fell. He specifically argued to the full commission that the deputy
commissioner’s “ultimate factual determination [was] consistent with a finding that the injury
resulted from a unilateral act of horseplay.” He made no argument to the commission that the
design of the counter was a unique risk of the workplace. On review by the full commission,
claimant relied solely on his “unilateral act of horseplay” argument despite the deputy
commissioner’s finding that “there was not substantial horseplay” and that “[n]othing in the
testimony of either witness gives me cause for a finding of either horseplay or assault . . . .”
While the commission found that claimant’s injury resulted from his ankle being caught under
the counter as he fell backwards, the record contains no finding by it that the design of the
counter was a risk peculiar to the workplace, nor did claimant request that it do so.
For the first time on appeal to this Court, claimant argues that his injury resulted from a
condition of the workplace, the design of the counter. He argues, “had [claimant’s] foot not been
caught under the edge of the counter, his ankle would not have been exposed to the unusual
position and force that caused the injury” and that the general public is “not exposed to the risk
of getting a foot caught under the edge of the counter where claimant worked.” In his written
statements to the commission opposing employer’s request for review, claimant did not argue
-5-
that his injury was compensable because it resulted from a condition of the workplace. In failing
to present that theory to the commission, claimant denied the commission the opportunity to
determine whether the counter was an actual risk of his employment. Claimant is now barred
from arguing an alternate theory for the first time to this Court on appeal. Southwest
Architectural Products, Inc. v. Smith, 4 Va. App. 474, 478, 358 S.E.2d 745, 747 (1987)
(“Although Rule 5A:21 allows an appellee to raise additional issues on brief, it does not dispense
with the requirement of Rule 5A:18 that only those issues properly preserved for appellate
review will be considered.”); Boys and Girls Club of Virginia, 37 Va. App. at 85 n.1, 554 S.E.2d
at 105 n.1 (“[I]ssues which were not properly preserved before the commission cannot be raised
on appeal.” (citing Overhead Door. Co. of Norfolk v. Lewis, 29 Va. App. 52, 62, 509 S.E.2d
535, 539 (1987))).
Claimant also requests that we apply the “right result, wrong reason” rationale to affirm
the commission’s award of benefits in this case. We decline to do so. An appellate court may
not affirm a decision of the commission “‘where, because the [commission] has rejected the right
reason or confined its decision to a specific ground, further factual resolution is needed before
the right reason may be assigned to support the [commission’s] decision.’” Harris v.
Commonwealth, 39 Va. App. 670, 676, 576 S.E.2d 228, 231 (2003) (quoting Driscoll v.
Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312, 313 (1992)). Concluding that the
commission reached the right result in this case would require additional fact-finding by the
commission to determine whether the design of the counter posed a risk unique to claimant’s
workplace.
III. CONCLUSION
We conclude that the commission erred in finding that claimant’s injury arose out of his
employment. It found that the injury did not result from an intentional act by claimant’s
-6-
co-worker or any type of horseplay, and it made no finding that claimant’s injury following the
accidental touching by a co-worker arose out of a condition peculiar to the workplace. It simply
found that, because claimant was injured when he fell after being accidentally touched by a
fellow employee while discussing work-related business, the injury was compensable. The
record supports a finding that claimant’s injury occurred in the course of his employment, but
fails to support the commission’s finding that the claimant proved his injury resulted from an
actual risk arising out of his employment. We, therefore, reverse the commission’s award of
medical benefits to claimant.
Reversed.
-7-