COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judge Humphreys, and Senior Judge Annunziata
UNPUBLISHED
Argued by teleconference
GEORGE KING
MEMORANDUM OPINION* BY
v. Record No. 1401-19-4 JUDGE ROSEMARIE ANNUNZIATA
JUNE 30, 2020
DTH CONTRACT SERVICES, INC. AND
AMERICAN SELECT INS. CO.
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Richard M. Reed (The Reed Law Firm, P.L.L.C., on brief), for
appellant.
Robert M. McAdam (KPM Law, on brief), for appellees.
George King (“claimant”) was blinded while working as an overnight attendant at a rest
area for DTH Contract Services (“employer”) when he was stabbed in the face by a former
co-worker. The Commission denied claimant’s application for compensation benefits, finding
that he had not proved the attack arose out of his employment because claimant knew the
assailant, the attack was not random, and the motive for the attack was unknown. Upon
claimant’s appeal to this Court, we reversed the Commission’s decision and remanded the case
“for the Commission to consider whether claimant was subject to an increased risk of assaults at
his job.” King v. DTH Contract Services, Inc., 69 Va. App. 703, 718 (2019).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Upon rehearing, the Commission again found that claimant’s injuries did not arise out of
his employment, as “neither the nature of the claimant’s work nor the environment he worked in
increased the probability of assault.” This appeal followed.
BACKGROUND
The evidence, viewed in the light most favorable to employer, the party prevailing before
the Commission,1 established that on July 12-13, 2016, claimant was working the overnight shift,
10:00 p.m. to 6:00 a.m., at a westbound rest area on Interstate 66 in Prince William County.
Claimant had been employed there since 2013. His duties included keeping the restrooms clean,
emptying trash cans, and reporting any observed criminal activity to the police. He remained
inside a locked, windowless office when he was not performing his duties on the grounds.
Claimant was the only employee on site during his shift. He was required to make hourly phone
calls to the Virginia Department of Transportation (VDOT) to confirm his presence and welfare
on site.
Claimant’s assailant, Khalif Privott, was employed at the same rest area from June 2014
until March 2015, but Privott and claimant did not work the same shifts. Privott quit without
giving notice after he was reprimanded for failing to make the hourly calls to VDOT.
At about 5:30 a.m. on July 13, 2016, as claimant was returning to the office after making
his last check around the grounds, Privott grabbed claimant by the back of his shirt and stabbed
him repeatedly with a screwdriver. Claimant did not recognize Privott during the attack, and
Privott said nothing during the assault. Privott left the rest area and committed suicide later that
day without communicating to anyone his motive for the stabbing. Claimant’s DNA was found
on the screwdriver in Privott’s pocket and on his clothes. The parties stipulated that Privott “had
been using drugs and ‘was disturbed’” before the assault.
1
See, e.g., Portsmouth Sch. Bd. v. Harris, 58 Va. App. 556, 559 (2011).
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ANALYSIS
A compensable injury under the Workers’ Compensation Act must “aris[e] out of and in
the course of the employment.” Code § 65.2-101. “The words ‘arising out of’ . . . refer to the
origin or cause of the injury while the language ‘in the course of’ pertains to the time, place, and
circumstances under which the accident occurred.” King, 69 Va. App. at 712 (quoting R & T
Investments, Ltd. v. Johns, 228 Va. 249, 252 (1984)). There is no dispute in this case that
claimant’s injury occurred “in the course of” his employment. The only issue before this Court
is whether the assault on claimant arose “out of” his employment. As the appellant, claimant
must demonstrate that the Commission’s ruling was reversible error. See Burke v. Catawba
Hosp., 59 Va. App. 828, 838 (2012).
“[T]he Commission’s determination regarding whether an injury arose ‘out of’ one’s
employment . . . [is] a mixed question of law and fact. The Court reviews the legal component
of that determination de novo.” O’Donoghue v. United Continental Holdings, Inc., 70 Va. App.
95, 103 (2019). The Commission’s factual findings are “conclusive and binding” when based on
credible evidence in the record and “‘reasonable inferences’” drawn from that evidence. Va.
Tree Harvesters, Inc. v. Shelton, 62 Va. App. 524, 532-33 (2013) (quoting Hawks v. Henrico
Cty. Sch. Bd., 7 Va. App. 398, 404 (1988)). “In determining whether credible evidence exists,
the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make
its own determination of the credibility of the witnesses.” Wagner Enters., Inc. v. Brooks, 12
Va. App. 890, 894 (1991).
“The statutory language, ‘arising out of and in the course of the employment,’ should be
liberally construed to carry out the humane and beneficial purposes of the Act.” Baggett &
Meador Cos. v. Dillon, 219 Va. 633, 637 (1978). But a liberal construction does not “authorize
the amendment, alteration or extension of [the Act’s] provisions.” Id.
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In defining the “arising out of” prong, Virginia uses “the ‘actual risk test.’” Lucas v. Fed.
Express Corp., 41 Va. App. 130, 134 (2003) (quoting Lucas v. Lucas, 212 Va. 561, 563 (1972)).
This test requires proof that “the employment expose[d] the work[er] to the particular danger
from which he was injured, notwithstanding the exposure of the public generally to like risks.”
Id. (quoting Lucas, 212 Va. at 563). The requirement is met “only . . . ‘if there is a causal
connection between the claimant’s injury and the conditions under which the employer requires
the work to be performed.” Va. Tree Harvesters, 62 Va. App. at 534 (quoting R & T
Investments, 228 Va. at 252-53); accord O’Donoghue, 70 Va. App. at 104. But a hazard to
which the general public is also exposed is not compensable. See R & T Investments, 228 Va. at
523; O’Donoghue, 70 Va. App. at 105.
An injury that
arises ‘out of’ the employment . . . 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 workman
would have been equally exposed apart from the employment. The
causative danger must be peculiar to the work and not common to
the neighborhood. It must be incidental to the character of the
business and not independent of the relation of master and servant.
It need not have been foreseen or expected, but after the event it
must appear to have had its origin in a risk connected with the
employment, and to have flowed from that source as a rational
consequence.
Dillon, 219 Va. at 638 (quoting Bradshaw v. Aronovitch, 170 Va. 329, 335 (1938)).
In this case, where the injury was caused by an assault, claimant had to demonstrate the
requisite causal link by proof that a condition of his employment motivated the attack, see King,
69 Va. App. at 713, or exposed him to the “particular danger from which he was injured,
notwithstanding the exposure of the public generally to like risks,” Lucas, 212 Va. at 563.
Because Privott’s motive was not known, to establish a compensable injury, claimant had to
show “that the probability of assault was augmented either because of the peculiar character of
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the claimant’s job or because of the special liability to assault associated with the environment in
which he must work.” King, 69 Va. App. at 713-14 (quoting R & T Investments, 228 Va. at
253).
To this end, claimant presented evidence to the Commission that the safety procedures he
was required to follow—remaining inside the locked office when not patrolling the rest area
grounds and making hourly telephone calls to confirm his presence and welfare—demonstrated
his employer’s awareness of the risk to which claimant was exposed while working alone at
night. The Commission rejected that premise, finding that “prudent safety precautions, standing
alone, [do not] allow for the conclusion that the claimant’s work environment exposed him to a
greater risk of violent crime.” But the Commission considered the safety precautions in context
with the other evidence claimant presented.
Claimant introduced a document listing all calls made to the police reporting incidents at
rest areas in Virginia between 2015 and 2016; the document showed 112 incidents were reported
at the westbound rest area where claimant worked and 86 incidents were reported at the
corresponding eastbound rest area. Captain Tom Bradshaw with the Virginia State Police
testified that the list represented only reported incidents, not confirmed crimes. Bradshaw was
unable to confirm that crimes were more likely to occur at the rest area where claimant worked
than in any other area. Bradshaw also was not aware of any other rest area employees who were
victims of violent crimes committed at the workplace. And there was no evidence comparing the
level of crime at rest areas with their surrounding locales.
First Sergeant Assistant Special Agent Edmund Kelly testified that the State Police
routinely patrol rest areas. Illicit sexual behavior was the principal criminal activity observed,
and Kelly knew of one related incident in which an undercover officer was assaulted in 2000 or
2001. Claimant’s supervisor, John Crabbe, testified that although individuals loitered and used
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drugs at the rest area, the only incident of violent crime of which he knew was the assault on
claimant. Additionally, claimant testified that he had not observed any violent criminal activity
at the rest area during the several years he had worked there.
Claimant also introduced a report of a study authorized by the General Assembly in 1990,
which showed that between January 1, 1989, and April 30, 1990, 133 criminal incidents were
reported at the forty rest areas in Virginia. Five of the reported incidents were assaults.2 At the
rest area where claimant later worked, six crimes were reported, but only one involved violence.
The report noted that more criminal activity occurred at night, but it also noted that most of the
rest areas were unattended at night. The report did not include data regarding crime reported in
localities surrounding the rest areas. The Commission found that absent data regarding crime in
surrounding areas, the report failed to establish that “rest areas are more dangerous than other
locales during similarly late hours.”
Claimant contends that the Commission erred as a matter of law in not accepting that the
House Joint Resolution authorizing the study established that rest areas are “inherently risky”
and his employment at a rest area elevated his exposure to risk. The Commission noted,
however, that the report concluded that the number of reported criminal incidents was
“insignificant” compared to the number of visitors at the rest areas. There were 3.175 million
visitors to the westbound Interstate 66 rest area during the time of the study, but only six reported
criminal incidents. The Commission was “unpersuaded that a study conducted over twenty-six
years prior to the assault perpetrated on this claimant constitutes credible evidence of the level of
criminal activity existing in 2016.” We find that the Commission did not abuse its discretion in
2
Two assaults were fights, one assault was a domestic situation, one assault was possibly
a homosexual encounter, and one assault involved a woman who was grabbed and released by an
unknown male.
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giving little weight to the report. See Rios v. Ryan Inc. Central, 35 Va. App. 40, 44-45 (2001)
(holding that admission of evidence is within the Commission’s discretion).
The Commission held that claimant’s injury did not arise out of his employment because
he was not exposed to a greater risk of assault at a rest area than was the general public and the
nature of his duties did not create a peculiar risk of assault. Claimant’s duties did not include, for
example, handling or carrying money, a job function that may increase the risk of robbery or
assault. See R & T Investments, 228 Va. at 253-54 (holding that employee suffered a
compensable injury while transacting her employer’s business at a bank when it was robbed
because making bank deposits was the employee’s regularly assigned duty and banks were
known as locations where robbery could occur); Southland Corp. v. Gray, 18 Va. App. 366, 368
(1994) (holding that store employee who was robbed as she left the store to make a bank deposit
was entitled to compensation because having to make deposits as part of her job increased the
risk of harm).
We find no grounds to overturn the Commission’s ruling. In Hill City Trucking v.
Christian, 238 Va. 735, 737 (1989), the Supreme Court reversed compensation benefits that had
been awarded to a truck driver who was robbed and shot on the highway while hauling goods for
his employer. The Court held that his injury did not arise out of his employment, as there was no
evidence that he was assaulted because he was employed as a truck driver and any driver on the
road at 3:00 a.m. also could have been assaulted. Id. at 739-40. In Dillon, the Supreme Court
held that a truck driver who was killed by a random gunshot while stopped on the highway had
not been exposed to a peculiar risk based on his employment or to a risk to which the general
public also was not exposed. See 219 Va. at 644. Similarly, here, the evidence did not establish
that claimant’s injury arose out of his employment as a rest area attendant because he was not
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exposed to a peculiar risk based on his employment or to a risk which the general public also was
not exposed.
CONCLUSION
We find that the Commission’s decision was supported by credible evidence and the
applicable law, and we affirm the ruling of the Commission.
Affirmed.
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