Present: Carrico, C.J., Compton, 1 Lacy, Hassell, Keenan,
Koontz, and Kinser, JJ.
LAURA LEE COMBS
v. Record No. 990534 OPINION BY JUSTICE CYNTHIA D. KINSER
March 3, 2000
VIRGINIA ELECTRIC & POWER COMPANY, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
In this personal injury action, the sole question is
whether the circuit court correctly ruled that an
employee’s exclusive remedy against an employer is under
the Virginia Workers’ Compensation Act (the Act), Code
§§ 65.2-100 through -1310. Because we conclude that the
employee suffered an “injury by accident arising out of and
in the course of . . . employment,” Code § 65.2-101, we
will affirm the circuit court’s judgment sustaining the
employer’s special plea in bar.
FACTS AND PROCEEDINGS
Virginia Electric and Power Company (Virginia Power)
arranged for an independent instructor to teach an aerobics
class at its Richmond office for the benefit of its
employees. Participation in the class by Virginia Power’s
employees was voluntary. Virginia Power advertised the
1
Justice Compton participated in the hearing and
decision of this case prior to the effective date of his
retirement on February 2, 2000.
class on its bulletin boards and in its newsletter. It did
not charge for the use of its facility, but participating
employees were required to pay a fee to the instructor for
the class.
The plaintiff, Laura Lee Combs, was an employee of
Virginia Power. During her lunch hour on May 24, 1994,
Combs participated in the aerobics class and, while doing
so, developed a severe headache. The aerobics instructor
assisted Combs in lying down and then called Virginia
Power’s Employee Health Services (EHS), as she had been
instructed to do by the EHS coordinator of health programs.
The EHS receptionist answered the call and informed Sharon
Robinson, EHS coordinator of administrative support, that
someone in the aerobics class had a headache and needed
some medication. Shortly thereafter, Robinson went to the
aerobics room to determine what was happening with regard
to Combs. When Combs’ head pain did not subside, she was
taken to the EHS “quiet room” to rest. The “quiet room” is
used by employees who become ill at work, or by
recuperating employees who have returned to work after an
accident or illness and need to rest during the workday.
When an employee is using the room, an EHS staff member is
required to be in the office, and the employee is to be
checked at regular intervals.
2
After she went to the “quiet room,” Combs was not
examined by any medical or emergency personnel, nor was her
condition regularly monitored by anyone. Approximately two
hours after Combs entered the “quiet room,” Robinson
checked on Combs and discovered that Combs had vomited on
herself and was in a coma-like state. Robinson then called
security. Combs was eventually transported by ambulance to
the Medical College of Virginia where she was diagnosed
with intracranial bleeding, a right giant middle cerebral
aneurysm, and an intraparenchymal hemorrhage. She
subsequently underwent two neurological operations. After
release from the hospital, she entered a rehabilitation
center where she received therapy for her partial paralysis
and cognitive brain damage.
On April 30, 1996, Combs filed a motion for judgment
against Virginia Power and four of its employees, alleging
that the defendants owed her a duty to “have in place
proper procedures, and to properly train . . . personnel,
so that employees using EHS could do so without harm to
themselves and detriment to their well-being.” Combs
further asserted that the defendants breached these duties
and were negligent by, inter alia, failing to properly
train non-medical personnel working in EHS; failing to
implement procedures to provide appropriate medical care to
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Virginia Power employees who seek treatment at EHS,
especially when licensed healthcare professionals are
unavailable; and failing to provide proper medical care and
treatment when Combs suffered a medical emergency, thereby
leaving her unattended for approximately two hours before
calling security and a rescue squad. Finally, Combs
alleged that the defendants’ negligence proximately caused
her injury and damages. 2
In response, the defendants filed grounds of defense
and a “Special Plea of Workers’ Compensation Bar.” In the
special plea, they asserted that the exclusivity provision
of the Act, Code § 65.2-307, barred Combs’ claim and
therefore deprived the circuit court of subject matter
jurisdiction over her claim. 3 Accordingly, the defendants
asked the court to dismiss Combs’ action.
After reviewing the parties’ memoranda, the circuit
court sustained the special plea and dismissed Combs’
2
Combs also filed a claim with the Virginia Workers’
Compensation Commission on May 23, 1996. Virginia Power
subsequently filed a report regarding the accident with the
Commission.
3
Code § 65.2-307 provides that “[t]he rights and
remedies herein granted to an employee when his employer
and he have accepted the provisions of this title
respectively to pay and accept compensation on account of
injury or death by accident shall exclude all other rights
and remedies of such employee . . . on account of such
injury . . . .”
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action with prejudice. In a letter opinion, the court
concluded that the aggravation and acceleration of Combs’
pre-existing aneurysm was “an injury by accident arising
out of and in the course of her employment with” Virginia
Power, and that her action was therefore barred by the
exclusivity provision of the Act. We awarded Combs this
appeal.
ANALYSIS
“An injury is subject to the exclusivity provision of
the Act if it is the result of an accident and arises out
of and in the course of the employment.” Richmond
Newspapers, Inc. v. Hazelwood, 249 Va. 369, 372, 457 S.E.2d
56, 58 (1995). Thus, the critical inquiry in this appeal
is whether Combs’ injury was (1) an injury by accident, (2)
arising out of, (3) and in the course of, her employment.
See Code § 65.2-101; Briley v. Farm Fresh, Inc., 240 Va.
194, 197, 396 S.E.2d 835, 836 (1990). If any one of these
elements is missing, then Combs’ claim is not covered by
the Act, Snead v. Harbaugh, 241 Va. 524, 526, 404 S.E.2d
53, 54 (1991), and she can proceed with her personal injury
claim in the circuit court. Thus, we will address each of
these criteria seriatim.
I. INJURY BY ACCIDENT
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This Court recently addressed the requirements of an
“injury by accident” in Southern Express v. Green, 257 Va.
181, 509 S.E.2d 836 (1999). There, we held that an “injury
by accident” occurs when the injury appears “suddenly at a
particular time and place[,] and upon a particular
occasion[;]” when it is “caused by an identifiable incident
[,]or sudden precipitating event[;]” and when the injury
results “in an obvious mechanical or structural change in
the human body.” Id. at 187, 509 S.E.2d at 839. The
circuit court found all these factors present with regard
to Combs’ injury, and we agree.
At the outset, it must be emphasized that Combs’
injury is not the aneurysm itself. Instead, her injury is
the aggravation, exacerbation, and/or acceleration of the
aneurysm. That injury resulted from the alleged negligent
emergency medical care, or lack thereof, that she received
from Virginia Power and its EHS employees after she
suffered a severe headache during the aerobics class.
Thus, Combs’ argument that there is no evidence with regard
to when the aneurysm initially started leaking or when she
experienced the first onset of symptoms is irrelevant to
the question whether she sustained an “injury by accident.”
The record in this case, in particular Combs’ motion
for judgment, demonstrates that she suffered an “injury by
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accident” under Code § 65.2-101. The particular time,
place, and occasion of her injury was at the EHS “quiet
room” in Virginia Power’s Richmond office, during the two
to three hours that elapsed from when she first developed
the headache and was taken to the “quiet room” until she
was transported to the hospital. The identifiable or
precipitating event was the alleged negligent emergency
medical treatment that she received during this span of
time. Finally, Combs’ paralysis and cognitive brain damage
represent the mechanical or structural changes in her body
that resulted from her injury. Thus, all the requirements
of an “injury by accident” are present in this case. See
Winn v. Geo. A. Hormel & Co., 560 N.W.2d 143, 149 (Neb.
1997)(holding that negligent medical treatment at
employer’s first-aid medical facility may constitute
“accident”).
II. ARISING OUT OF EMPLOYMENT
The phrase “arising out of” pertains to the origin or
cause of an injury. County of Chesterfield v. Johnson, 237
Va. 180, 183, 376 S.E.2d 73, 74 (1989); Bradshaw v.
Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). In
determining whether an injury arises out of employment, we
have repeatedly quoted with approval the test enunciated in
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In re Employers’ Liab. Assur. Corp., Ltd., 102 N.E. 697
(Mass. 1913). 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. But it 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. 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.
Id. at 697; accord Lucas v. Lucas, 212 Va. 561, 563, 186
S.E.2d 63, 64 (1972); Conner v. Bragg, 203 Va. 204, 208-09,
123 S.E.2d 393, 396-97 (1962); Bradshaw, 170 Va. at 335,
196 S.E. at 686.
In Virginia, 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. Lucas, 212
Va. at 563, 186 S.E.2d at 64. Thus, if there is a causal
connection between Combs’ injury and the conditions of her
8
employment, then her injury arose out of her employment.
See United Parcel Serv. of Am. v. Fetterman, 230 Va. 257,
258, 336 S.E.2d 892, 893 (1985) (“An accident arises out of
the employment when there is a causal connection between
the claimant’s injury and the conditions under which the
employer requires the work to be performed.”).
Combs argues that EHS was not actually a clinic for
the treatment of employee health problems and that,
therefore, it was not a condition of her employment. Thus,
she contends that her injury did not “arise out of” her
employment. Assuming that Combs is correct about the
purpose of EHS, the fact remains that on the day in
question, the risk of employment was the alleged negligent
emergency medical treatment by EHS personnel, which
aggravated her pre-existing aneurysm. Combs was exposed to
this risk or condition of employment solely because she was
a Virginia Power employee. The public generally would not
have been exposed to the same risk because only Virginia
Power employees could utilize EHS. In fact, Combs alleged
in her motion for judgment that Virginia Power and its
employees owed certain duties to her “so that employees
using EHS could do so without harm to themselves and
detriment to their well-being,” and that the defendants
violated those duties, thereby causing injury to her. She
9
further asserted that the employee defendants were acting
within the scope of their employment when they allegedly
injured her.
Combs, nevertheless, argues that her situation is like
that of the employee in Taylor v. Mobil Corp., 248 Va. 101,
444 S.E.2d 705 (1994), because she did not involuntarily,
or out of “default[]” as the circuit court found, seek
medical treatment at EHS. In Taylor, an employee visited a
doctor at his employer’s clinic for treatment of a heart
condition. The employee ultimately suffered a fatal heart
attack at home although the doctor had advised him that he
was not suffering from heart disease. Id. at 103-04, 444
S.E.2d at 706-07. This Court concluded that the employee’s
risk of exposure to negligent treatment by the doctor was
not an actual risk of employment because the employee
voluntarily opted to use the doctor at the employer’s
clinic. He was not required to do so by his employer, nor
was he treated by that doctor because he became ill at
work. Id. at 107, 444 S.E.2d at 708.
In contrast, Combs suffered her severe headache while
participating in the aerobics class at Virginia Power’s
office. While taking part in that class was not required
by Virginia Power, EHS personnel treated Combs because of
her status as a Virginia Power employee. In fact, the
10
aerobics instructor called EHS when Combs became ill
because Virginia Power’s EHS coordinator had directed the
instructor to do so. Thus, the risk that led to Combs’
injury was part of her work environment. See Briley, 240
Va. at 198, 396 S.E.2d at 837.
Additionally, the fact that her injury was the
aggravation of a pre-existing condition does not alter the
result that her injury arose out of her employment. See
Ohio Valley Const. Co. v. Jackson, 230 Va. 56, 58, 223
S.E.2d 554, 555 (1985) (“When an injury sustained in an
industrial accident accelerates or aggravates a pre-
existing condition, death or disability resulting therefrom
is compensable under the Workers’ Compensation Act.”).
Combs’ pre-existing aneurysm united with an actual risk of
her employment to produce her injury.
III. IN THE COURSE OF EMPLOYMENT
“The phrase arising ‘in the course of’ [employment]
refers to the time, place, and circumstances under which
the accident occurred.” Johnson, 237 Va. at 183, 376
S.E.2d at 74. “An accident occurs ‘in the course of the
employment’ when it takes place within the period of the
employment, at a place where the employee may reasonably
be, and while he is reasonably fulfilling duties of his
employment or engaged in doing something incidental
11
thereto.” Bradshaw, 170 Va. at 335, 196 S.E. at 686;
accord Lucas, 212 Va. at 563, 186 S.E.2d at 64; Conner, 203
Va. at 208, 123 S.E.2d at 396.
Combs argues she was not performing any duty of her
employment at the moment when she initially needed
emergency medical treatment. As she correctly notes, the
pre-existing aneurysm was not caused by her employment, and
she was participating in an aerobics class during her lunch
hour when she first experienced the headache. Thus, she
contends that “the reason she ended up at EHS was not in
any way connected with her employment[,]” and, therefore,
that her injury did not occur during the course of her
employment. We do not agree.
Combs’ position on this issue overlooks several
salient facts. First, Combs is not seeking redress for the
onset of the symptoms associated with the aneurysm but for
the aggravation of that pre-existing condition. The
aggravation of the aneurysm occurred after EHS personnel
responded to the call for assistance from the aerobics
instructor, during Combs’ period of employment, and at a
place where she could reasonably be if she became ill at
work, i.e., the “quiet room.” The only reason that EHS
responded to that call was because Combs was a Virginia
Power employee. Thus, Combs “was injured at a place where
12
she was reasonably expected to be while engaged in an
activity reasonably incidental to her employment” by
Virginia Power. Briley, 240 Va. at 198, 396 S.E.2d at 837.
Her injury therefore occurred “in the course of” her
employment.
CONCLUSION
For these reasons, we conclude that Combs’ injury was
an “injury by accident arising out of and in the course of
[her] employment” with Virginia Power, Code § 65.2-101, and
is therefore compensable under the Act. Her action in the
circuit court is thus barred by Code § 65.2-307.
Accordingly, we will affirm the judgment of the circuit
court.
Affirmed.
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