COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Agee∗ and Felton
Argued at Richmond, Virginia
EDWARD RAY JONES
MEMORANDUM OPINION∗∗ BY
v. Record No. 1766-02-2 JUDGE JEAN HARRISON CLEMENTS
SEPTEMBER 9, 2003
VIRGINIA ELEVATOR COMPANY, INC. AND
COMMONWEALTH CONTRACTORS GROUP
SELF-INSURANCE ASSOCIATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Gregory O. Harbison (Elizabeth C. Griffin;
Geoffrey R. McDonald & Associates, on brief),
for appellant.
R. Ferrell Newman (Thompson, Smithers,
Newman, Wade & Childress, on brief), for
appellees.
Edward Ray Jones (claimant) appeals a decision of the
Workers' Compensation Commission (commission) denying his claim
for temporary total disability benefits and medical benefits
from Virginia Elevator Company, Inc. and Commonwealth
Contractors Group Self-Insurance Association (collectively,
employer). On appeal, claimant contends the commission erred in
finding that the injury by accident he suffered did not arise
∗
Justice Agee participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
∗∗
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
out of and in the course of his employment. Finding no error,
we affirm the commission's decision.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of
the proceedings as are necessary to the parties' understanding
of the disposition of this appeal.
I. BACKGROUND
"By well established principles, we view the evidence in
the record in the light most favorable to the party prevailing
before the commission." 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 worked for
employer for seven years as an elevator constructor. Employer's
business involved the removal and installation of elevators. On
March 12, 2001, claimant was working at a job site in Farmville,
Virginia removing an old elevator and installing a new one.
Needing some hydraulic fittings and other equipment for the
project, claimant called David C. Wilson, the operations manager
at the employer's main office in Richmond, Virginia, and
requested the parts. Informed by Wilson that the delivery truck
was unavailable, claimant told him he would "swing by" and pick
up the needed parts on his way home after attending a union
meeting in Richmond that evening. Claimant arranged with Wilson
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for the parts to be placed in a wheelchair lift in the parking
lot of employer's main office.
Wilson testified that the material and equipment needed at
a job site were sometimes delivered by truck to the site and
sometimes picked up at the main office by the workers
themselves. Wilson further testified that the workers were not
obligated to come to employer's main office after hours to pick
up parts or materials but acknowledged they were free to do so
and did so routinely for out-of-town jobs when they could not
make it to the office during regular business hours.
Claimant arrived at the premises of the main office around
9:30 p.m. It was dark and raining at the time. Spanning the
front of the parking lot was an eight-foot-high chain link
security fence, on top of which were three strands of barbed
wire. The fence had a gate that was secured after hours by a
combination lock. The company's employees were given the
combination of the lock so they could access the lot to pick up
parts or materials after hours, if needed. Claimant intended to
enter the lot through the gate by unlocking the combination
lock. Although claimant knew the combination, he was unable,
after several attempts, to open the lock. Claimant then
attempted to access the lot by climbing over the security fence.
As he did so, he became entangled in the barbed wire at the top
of the fence and fell into the lot, injuring his left heel.
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Although he had climbed the fence previously, claimant never
told employer he had done so.1
Claimant testified that he could not have picked up the
parts the next morning during business hours and timely arrived
at the job site. Claimant's co-worker at the job site, Steven
Davis, testified that, although the parts requested by claimant
were needed to continue to the next step of the project, their
work at the job site would not have come to a halt without them.
Finding claimant's injury did not arise out of and in the
course of his employment, the deputy commissioner denied
claimant's request for compensation benefits. Upon review, the
commission affirmed the deputy commissioner's decision. This
appeal by claimant followed.
II. ANALYSIS
To recover benefits under the Workers' Compensation Act, an
employee must prove "by a preponderance of the evidence that he
suffered an injury by accident 'arising out of and in the course
of [his] employment.'" Falls Church Const. Corp. v. Valle, 21
Va. App. 351, 359-60, 464 S.E.2d 517, 522 (1995) (alteration in
original) (quoting Code § 65.2-101). Claimant argues, on appeal,
1
Although employer presented evidence of claimant's
consumption of alcohol on the evening in question, the
commission expressly noted that it "ma[d]e no finding regarding
the claimant's alleged intoxication and its relationship to the
incident in question." As neither party challenges the
commission's ruling in that regard, the matter is not before us
on appeal. See Calvin v. Calvin, 31 Va. App. 181, 184 n.2, 522
S.E.2d 376, 377 n.2 (1999).
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that he is entitled to compensation benefits because he proved his
injury arose out of and in the course of his employment. We
disagree.
A finding by the [c]ommission that an
injury arose out of and in the course of
employment is a mixed finding of law and
fact and is properly reviewable on appeal.
Upon appellate review, this Court will
uphold findings of fact made by the
[c]ommission when supported by credible
evidence.
Dublin Garment Co., Inc. v. Jones, 2 Va. App. 165, 167, 342
S.E.2d 638, 638 (1986) (citations omitted). "Accordingly, we
must determine whether the facts presented are sufficient as a
matter of law to justify the [c]ommission's finding" that
claimant's injury did not arise out of and in the course of his
employment. Id. at 167, 342 S.E2d at 639.
"The phrase 'arising out of' pertains to the origin or
cause of the injury." Combs v. Virginia Elec. & Power Co., 259
Va. 503, 508, 525 S.E.2d 278, 282 (2000).
An injury "arises 'out of' the employment,
when 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. Under
this test, if 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."
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Id. (quoting In re Employers' Liab. Assur. Corp., Ltd., 102 N.E.
697, 697 (Mass. 1913)). To determine whether an injury arose
out of the employment, "we apply an 'actual risk test,' meaning
that the employment must expose the employee to the particular
danger causing the injury, notwithstanding the public's exposure
generally to similar risks." Id. at 510, 525 S.E.2d at 282.
By contrast, "'[t]he phrase arising in "the course of"
[employment] refers to the time, place, and circumstances under
which the accident occurred.'" Id. at 511, 525 S.E.2d at 283
(second alteration in original) (quoting County of Chesterfield
v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989)). "[A]n
accident occurs in the 'course of employment' when it takes
place within the period of employment, at a place where the
employee may be reasonably expected to be, and while he is
reasonably fulfilling the duties of his employment or is doing
something which is reasonably incidental thereto." Connor v.
Bragg, 203 Va. 204, 208, 123 S.E.2d 393, 396 (1962).
Here, testimony revealed that it was customary for
employees to pick up parts or materials after hours at the
employer's main office by using the combination lock to unlock
the gate in the fence at the front of the office's parking lot.
Thus, had claimant been injured while executing that accepted
method of picking up parts after hours, his injury would have
been compensable.
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That was not what happened in this case, however. The
evidence established that claimant sustained his injury when,
failing to unlock the combination lock, he then climbed up the
eight-foot-high security fence in the dark and in the rain,
became entangled in the barbed wire at the top of the fence, and
consequently fell into the lot. The evidence further
established that claimant was not required to pick up parts or
materials at employer's main office after hours and that his
work at the job site would not have stopped if he had not picked
up the parts that night. Furthermore, the evidence established
that claimant never told employer that he had previously climbed
the security fence to access the lot. Moreover, no evidence was
presented suggesting that employer knew that claimant or anyone
else had ever climbed the fence to access the lot.
We conclude that this credible evidence is sufficient, as a
matter of law, to justify the commission's determination that
claimant's injury did not arise out of and in the course of his
employment. As the commission noted, while it may have been an
accepted practice for employees to pick up parts after hours at
the employer's main office by unlocking the gate, clearly doing
so by scaling the eight-foot-high security fence topped with
barbed wire, in the dark, while it was raining "was not a duty
required of [claimant] or his job" and, thus, not "a risk of his
employment." Likewise, atop a barbed wire fence that was
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obviously intended to keep people out of the lot was not a place
where employer would reasonably expect claimant to be.
Thus, we hold the commission did not err in concluding that
claimant's injury did not arise out of and in the course of his
employment. Accordingly, we affirm the commission's decision.
Affirmed.
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