Hill v. Southern Tank Transport, Inc.

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank
Argued at Salem, Virginia

DONALD E. HILL
OPINION BY
v. Record No. 1460-04-3 JUDGE ROBERT P. FRANK
JANUARY 18, 2005
SOUTHERN TANK TRANSPORT, INC. AND
AMERICAN INTERSTATE INSURANCE COMPANY

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Karel Brown Ryan (Mullins, Ryan & Young, PLLC, on brief), for
appellant.

Ramesh Murthy (Penn, Stuart & Eskridge, on brief), for appellees.

Donald E. Hill, claimant, contends the Workers’ Compensation Commission erred by

finding his injury did not arise out of his employment with Southern Tank Transport, Inc.,

employer. For the reasons stated, we affirm the commission.

BACKGROUND

The material facts are not in dispute.

Claimant was employed by Southern Tank Transport as a tractor/trailer driver. On

November 17, 2002, claimant was driving from Kimbalton, Virginia to Bennettsville, South

Carolina. He had left Kimbalton at approximately midnight and stopped outside of Ashboro,

North Carolina sometime between 4:30 a.m. to 5:00 a.m. to perform a routine tire check.

Claimant then got back into his truck. He remembers nothing after this point. Subsequently,

claimant’s trailer, in a single vehicle accident, ran off the road, overturned, and claimant was

severely injured. At the hospital, claimant told an emergency room physician that he did not lose

consciousness nor did he fall asleep.
 At the hearing before the deputy commissioner, claimant testified that he had no memory

of the accident. Claimant also denied knowing anything about the cause of the accident,

including how it happened and when it happened. He testified that the last thing he remembered

was when he stopped in Ashboro, North Carolina to check on the tires. He further indicated that

up until that time, everything was going well. The weather conditions and the road conditions

were fine, and the truck was operating properly. Claimant testified he had not been drinking that

night, nor had he taken any medication. Claimant further indicated that he felt totally healthy

before the wreck and denied having any medical difficulties prior to the accident. Claimant

offered no evidence as to the cause of the accident.

The deputy commissioner concluded the accident was unexplained and claimant failed to

prove the accident arose out of his employment.

The commission affirmed the deputy and concluded:

The claimant cannot remember anything about the accident. The
claimant submitted no evidence of unusual road conditions, defects
in the truck, involvement of another vehicle, or health problems
suggesting an idiopathic cause for the accident. There is no
evidence that drugs or alcohol were involved. The hospital records
shed no light on the cause of the accident, although they do report
that the claimant does not think he fell asleep or lost
consciousness. The claimant has consistently testified that he
simply does not know how the accident happened. The claimant’s
accident is “unexplained,” which is not compensable under
Virginia law.

ANALYSIS

Claimant contends that since he was operating employer’s tractor/trailer on public streets

and was thus subject to the “hazards of the streets,” the accident arose out of his employment.

Employer maintains that since the accident was “unexplained,” claimant failed to prove

causation between employment and the accident. We agree with employer.

-2-
 “To qualify for workers’ compensation benefits, an employee’s injuries must result from

an event ‘arising out of’ and ‘in the course of’ the employment.” Pinkerton’s, Inc. v. Helmes,

242 Va. 378, 380, 410 S.E.2d 646, 647 (1991). “The concepts ‘arising out of’ and ‘in the course

of’ employment are not synonymous and both conditions must be proved before compensation

will be awarded.” PYA/Monarch & Reliance Ins. Co. v. Harris, 22 Va. App. 215, 221, 468

S.E.2d 688, 691 (1996) (quoting Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 433, 437

S.E.2d 727, 729 (1993) (en banc)). The claimant must prove these elements by a preponderance

of the evidence. Id.

The only issue in controversy is whether claimant’s injury arose out of his employment.

In proving the “arising out of” prong of the compensability test, a claimant has the burden of

showing that “‘there is apparent to the rational mind upon consideration of all the

circumstances’” “‘a causal connection between the conditions under which the work is required

to be performed and the resulting injury.’” Marketing Profiles, 17 Va. App. at 434, 437 S.E.2d at

729 (quoting Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938)).

[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.

Grove v. Allied Signal, Inc., 15 Va. App. 17, 19-20, 421 S.E.2d 32, 34 (1992) (quoting R & T

Investments, Ltd. v. Johns, 228 Va. 249, 252-53, 321 S.E.2d 287, 289 (1984)).

Whether an accidental injury arose out of and in the course of employment is a mixed

question of law and fact and is properly reviewable on appeal. See Classic Floors, Inc. v. Guy, 9

-3-
Va. App. 90, 383 S.E.2d 761 (1989); Park Oil Co. v. Parham, 1 Va. App. 166, 336 S.E.2d 531

(1985).

Claimant correctly argues Virginia follows its “actual risk test” doctrine.

When an employee’s presence on the streets is shown to be in the
course of employment, “Virginia, following the majority rule, has
adopted what is known as the ‘actual risk test,’ under which, in the
words of Larson, ‘it is immaterial even whether the degree of
exposure is increased, if in fact the employment subjected the
employee to the hazards of the street, whether continuously or
infrequently.’ (quoting 1 Arthur Larson, Workers’ Compensation
Law § 9.10 (1993)).”

Marketing Profiles, 17 Va. App. at 434, 437 S.E.2d at 729 (citation omitted).

As we stated in Sentara Leigh Hospital v. Nichols, 13 Va. App. 630, 634-35, 414 S.E.2d

426, 428 (1992):

In our view, the Virginia cases have not departed from the
requirement that a claimant must establish by a preponderance of
the evidence (1) that his or her duties to the employer require his or
her presence upon the public streets, and (2) that his or her injury
arose from an actual risk of that presence upon the streets in order
to come within the protection of the principle established by these
cases. Although closely related, these are separate factors
necessary to establish a compensable claim . . . . A claimant can
carry the burden of proof on [the first] factor by establishing that
he or she is within an acknowledged class of employees, such as
traveling sales personnel, truck drivers, messengers and delivery
personnel, who, by the very nature of their employment, are
required to be present upon the public streets and, thus, are
exposed to the hazards of the streets.

At oral argument, appellant argued that to prevail under the “actual risk” analysis, a

claimant must establish that: (1) the employee was on a mission for the employer; (2) the

mission required the employee to be on a public street; (3) the employee was where he was

reasonably expected to be; and (4) the employee was injured while engaged in an activity

incident to the employment. Appellant merely expands the first prong of the Sentara Leigh

analysis into four components while neglecting the second prong. If appellant’s four

-4-
components create compensability, there is no need for Sentara Leigh’s second prong, i.e., that

his “injury arose from an actual risk of that presence upon the streets.”1

Clearly, claimant, as a truck driver, satisfies the first prong. But, claimant presented no

evidence to comply with the second prong.

Claimant cites Marketing Profiles in support of his position. The Court in Marketing

Profiles addressed the second prong of the Sentara Leigh analysis and found that credible

evidence established that claimant’s injuries were caused by an automobile accident while

claimant was on the road. Marketing Profiles, 17 Va. App. at 435, 437 S.E.2d at 729-30.

Further, claimant’s employer offered no evidence contradicting claimant’s evidence that his

automobile was hit on the passenger side while he was traveling in the course of his

employment. Id. Because Marketing Profiles must be read in the context of an explained

accident, i.e., that his car was struck while he was on the road, Marketing Profiles does not assist

in resolving the issue presented here.

We should also note that in a non-fatal, unexplained accident there is no presumption that

the injuries sustained arose out of employment. See Pinkerton’s, 242 Va. 378, 410 S.E.2d 646.

In Pinkerton’s, the claimant was a security guard who had left her job site. She was later found

semiconscious in her wrecked vehicle off the road. Although she had no recollection of how the

accident occurred, the physical evidence showed “that the tire marks on the roadway were

consistent with a sudden steering maneuver.” Id. at 379, 410 S.E.2d at 647. In denying benefits,

the Supreme Court of Virginia found the cause of the accident was unknown and that claimant

was thus unable to prove a “critical link . . . between the conditions of the workplace and the

1
Essentially, appellant is asking us to apply the “positional risk” doctrine where simply
being injured while at work is sufficient to establish compensability. Virginia has refused to
embrace the “positional risk” doctrine and remains an “actual risk” jurisdiction in which an
accident, to be compensable, must also “arise out of” the employment. County of Chesterfield v.
Johnson, 237 Va. 180, 185, 376 S.E.2d 73, 75-76 (1989).
-5-
injury.” Id. at 380, 410 S.E.2d at 647. Claimant failed to prove the second prong of the

requirements as articulated in Sentara Leigh.

Claimant further relies on Lucas v. Lucas, 212 Va. 561, 186 S.E.2d 63 (1972), to support

his position. The claimant in Lucas was on company business to pick up the company’s payroll.

While en route, claimant was killed in an accident. The Supreme Court awarded benefits,

finding “when [claimant] was fatally injured he was at a place he was reasonably expected to be

while engaged in an activity incidental to his employment.” Id. at 564, 186 S.E.2d at 65. Since

claimant was not required to undertake the journey, but volunteered to do so, the Court’s focus

was whether claimant was engaged in an activity incidental to his employment. The Supreme

Court found he was. The issue of an unexplained accident was not before the Court in Lucas

because Lucas involved a fatality. Unlike Lucas, claimant in the instant case was not fatally

injured, thus no presumption arose.

Therefore, we conclude that even under the “actual street risk rule,” facts must exist to

explain how the accident occurred. Without such an explanation, claimant cannot prove the

second prong of the Sentara Leigh test, i.e., that the injury arose from an actual risk of claimant’s

presence on the street. Here, claimant never explained how the hazards of the street caused his

injuries, thereby eliminating the possibility of causes totally unrelated to the street risks of

employment. See Marketing Profiles, 17 Va. App. at 437, 437 S.E.2d at 731. Claimant only

proved that he was on the road, went off the road, and hit a tree. The commission was correct in

denying benefits since claimant did not prove his injury arose out of his employment.

Accordingly, we affirm.

Affirmed.

-6-