COURT OF APPEALS OF VIRGINIA
Present: Judges Felton, Kelsey and Senior Judge Willis
Argued at Richmond, Virginia
JOANNE E. LUCAS
OPINION BY
v. Record No. 3093-02-2 JUDGE WALTER S. FELTON, JR.
JULY 8, 2003
FEDERAL EXPRESS CORPORATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert L. Flax (Flax & Stout, on briefs), for
appellant.
Dana L. Plunkett (Semmes, Bowen & Semmes,
P.C., on brief), for appellee.
Joanne Lucas appeals a decision of the Workers'
Compensation Commission denying her benefits for injuries she
sustained as a result of lightning striking her delivery truck
during a package pickup. Lucas contends that (1) the conditions
of her employment exposed her to a special risk from the forces
of nature, thus entitling her to benefits, and (2) expert
testimony was not needed to prove the risk she faced. We affirm
the commission's decision.
I. BACKGROUND
On appeal, "[d]ecisions of the
commission as to questions of fact, if
supported by credible evidence, are
conclusive and binding on this Court."
Manassas Ice & Fuel Co. v. Farrar, 13
Va. App. 227, 229, 409 S.E.2d 824, 826
(1991) (citing Code § 65.1-98; McCaskey v.
Patrick Henry Hosp., 225 Va. 413, 415, 304
S.E.2d 1, 2 (1983)). "The fact that
contrary evidence may be found in the record
is of no consequence if credible evidence
supports the commission's finding." Id.
(citing Russell Loungewear v. Gray, 2
Va. App. 90, 95, 341 S.E.2d 824, 826
(1986)). We view the evidence in the light
most favorable to the party prevailing
below. Creedle Sales Co. v. Edmonds, 24
Va. App. 24, 26, 480 S.E.2d 123, 124 (1997).
Cent. Va. Training Ctr. v. Cordle, 37 Va. App. 232, 234, 556
S.E.2d 64, 65-66 (2001) (footnote omitted).
A. INJURIES
Joanne Lucas was employed by Federal Express Corporation as
a pickup carrier. Her employment required her to pick up
packages that would be delivered the following day. At
approximately 5:30 p.m. on June 6, 2001, Lucas returned to her
delivery truck following a package pickup. She placed the
package in the rear of the vehicle then returned to the driver's
seat. Lucas placed her left hand on the metal part of the
steering wheel and placed the key to the truck in the ignition. 1
It was then the delivery truck was struck by lightning. 2
Lucas testified that when the truck was struck by
lightning, it felt as if she was shot in the chest. She also
experienced tingling in her left hand, then a sensation that
felt like "a thousand wasps" stinging her all over her body.
1
Lucas testified that the delivery truck she drove was made
of metal and had an antenna, computer equipment, and a CB radio.
2
According to Lucas, she did not expect bad weather that
day. The weather suddenly and unexpectedly changed.
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Lucas was transported by ambulance to the hospital. After the
delivery truck was struck by lightning, she complained of a
stiff neck, numb/tingling fingers, and swelling of a finger to
three times its normal size. Days after the incident, Lucas
noticed her feet turned bright yellow, then displayed black
dots. The skin on her feet subsequently peeled.
As a result of the incident, Lucas has been diagnosed with
post-traumatic stress disorder consisting of, among other
things, persistent anxiety and difficulty sleeping. She has
been unable to resume her employment.
B. PROCEDURAL HISTORY
Lucas filed a claim for benefits on September 26, 2001,
alleging an injury by accident on June 6, 2001. A hearing was
held before Deputy Commissioner Woolard, and an opinion was
delivered on July 16, 2002. Deputy Commissioner Woolard found
that Lucas failed to prove she sustained an injury by accident.
Among other things, Deputy Commissioner Woolard noted that "an
employer is not an insurer against natural disasters and acts of
nature. There is no evidence that there was any heightened risk
of injury that stemmed from her employment as a delivery
driver."
Lucas appealed the decision to the full commission and, on
review, the full commission affirmed the decision of Deputy
Commissioner Woolard. The full commission found that Lucas did
not sustain a compensable injury by accident because she "failed
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to prove that she suffered an injury which arose from a
heightened risk of her employment . . . ." Lucas appeals the
decision of the full commission.
II. ANALYSIS
Lucas argues that she is entitled to compensation for her
injuries because the conditions of her employment exposed her to
a special risk from the forces of nature. Under the Virginia
Workers' Compensation Act, an employee seeking compensation for
an injury by accident must prove by a preponderance of the
evidence that the injury arose "out of and in the course of the
employment . . . ." Code § 65.2-101.
The phrases arising "out of" and arising "in
the course of" are separate and distinct.
We have long held that they mean different
things and that proof of both is essential
to recovery under the Act. . . . The phrase
arising "in the course of" refers to the
time, place, and circumstances under which
the accident occurred. The phrase arising
"out of" refers to the origin or cause of
the injury.
County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d
73, 74 (1989). There must be a link between the injury and the
employment.
"In Virginia we have adopted the 'actual risk test,' which
requires only that the employment expose the workman to the
particular danger from which he was injured, notwithstanding the
exposure of the public generally to like risks." Lucas v.
Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972) (citing Immer
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& Co. v. Brosnahan, 207 Va. 720, 725, 152 S.E.2d 254, 257
(1967)). "The test . . . is not that other persons are exposed
to similar risks, but rather that the employment exposes the
workman to the particular danger . . . ." Brosnahan, 207 Va. at
725, 152 S.E.2d at 257. Hazards to which the general public is
equally exposed are non-compensable. See Grayson County Sch.
Bd. v. Cornett, 39 Va. App. 279, 287, 572 S.E.2d 505, 509
(2002); Southside Va. Training Ctr. v. Ellis, 33 Va. App. 824,
829-30, 537 S.E.2d 35, 37 (2000).
Lucas sufficiently proved that she sustained an injury by
accident in the course of her employment. It is uncontroverted
that the injuries she sustained were a result of a lightning
strike while she was inside her Federal Express truck following
a package pickup. However, in order to receive compensation for
her injuries, Lucas also has the burden of proving that the
injuries she sustained arose out of her employment. Code
§ 65.2-101. In other words, she must prove that the employment
activity in which she was engaged exposed her to the injurious
risk to an extent to which people were not ordinarily exposed,
and thus caused her injuries.
The general rule regarding natural disasters is as follows:
If an employee is injured by some natural
force, such as . . . [being] struck by
lightning during a storm, . . . the event
does not in and of itself fasten liability
on the employer. The theory is that death
or any incapacity to work resulting from
some natural force operating directly upon
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the victim without the intervention of any
other agency or instrumentality, arises not
out of the employment but is due solely to
an act of God. However, when the nature of
the employment, or some condition, or
environment therein, brings into existence a
special or peculiar risk to the disastrous
forces of nature, the injury or death of an
employee may be compensated as a risk of the
employment. The applicable test seems to be
not whether the injury was caused by an act
of God, but whether the employment
collaborated in causing the injury or death.
Elmer H. Blair, Reference Guide to Workmen's Compensation § 9.02
(1974). This position recognizes the causal connection required
by the actual risk test that Virginia follows. 3
In Scott County School Board v. Carter, 156 Va. 815, 159
S.E. 115 (1931), Ava Carter was killed when a cyclone destroyed
the schoolhouse in which she was teaching. In Carter, the
commission expressly found as follows:
The evidence as to the accident arising out
of and in the course of employment shows
3
Compare the actual risk test with the increased-risk test.
In most lightning cases the increased-risk
test has been applied, and the issue from
that point on has become one of physics
rather than of law, namely, whether the work
conditions-such as height above the
surrounding area, nearness to the trees or
tall structures, nearness to metallic
objects likely to attract lightning, or
presence of wetness and other conditions
facilitating transmission of
lightning-enhanced the probability of injury
from lightning.
Arthur Larson & Lex K. Larson, Larson's Workers' Compensation
Law § 5.01[1] (2002) (emphasis added).
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that the schoolhouse was located on an
eminence on a plateau, at a point where the
wind blew more continually than at other
points, and so located as to be exposed to,
and more susceptible to, the hazard of
storms.
Id. at 817, 159 S.E. at 116 (emphasis added). In deciding
Carter, the Supreme Court quoted or paraphrased these findings a
total of four times, id. at 817-18, 819, 820-21, 823-24, 159
S.E. at 116-17, 118, emphasizing that "[t]hese are declared
facts to which we must give credence" and that, "[t]hese being
the conditions which obtained at the time, we are bound to say
the employment subjected the unfortunate young woman to greater
exposure than were those persons generally in that locality."
Id. at 821, 159 S.E. at 117. Based on the commission's findings
of fact, the Court concluded the location of claimant's
employment caused her injury by exposing her to a particular
risk not generally experienced by other persons in that
vicinity.
At the hearing before Deputy Commissioner Woolard, Lucas
presented evidence of the truck's electrical and structural
characteristics. She testified that the truck had an antenna, a
computer system, and a communication radio. In addition, she
testified that the truck was essentially all metal, except for a
small strip of rubber on the floorboard. While Lucas provided
testimony of the truck's electrical and structural
characteristics, there is no competent evidence relating how
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these characteristics caused her injury by exposing her to a
particular risk of injury from lightning not otherwise
experienced by any other person in the same vicinity.
Absent competent testimony that the particular electrical
or structural characteristics of the truck caused her injury,
the commission was unable to determine that the injuries arose
from her employment. Thus, credible evidence supported the
commission's finding that Lucas failed to prove her injuries
arose out of her employment. We are bound by the commission's
factual findings. Cordle, 37 Va. App. at 234, 556 S.E.2d at
65-66.
The decision of the commission is affirmed.
Affirmed.
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