Louisa Public Schools v. Grover L. Bradley

• Court: Court of Appeals of Virginia
• Decided: July 16, 1996
• Docket: 3024952
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Elder Argued at Richmond, Virginia

LOUISA COUNTY PUBLIC SCHOOLS AND TRIGON ADMINISTRATORS MEMORANDUM OPINION * BY v. Record No. 3024-95-2 JUDGE JAMES W. BENTON, JR. JULY 16, 1996 GROVER L. BRADLEY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Patricia C. Karppi (J. Brian Jackson; McGuire, Woods, Battle & Boothe, L.L.P., on brief), for appellants.

No brief or argument for appellee.

Louisa County Public Schools appeals from an award of

temporary total disability benefits to its employee, Grover L.

Bradley. The employer contends that the Workers' Compensation

Commission erred in ruling that the injury arose out of Bradley's

employment. We hold that the commission properly applied the

holding in Roberson v. Whetsell, 21 Va. App. 268, 463 S.E.2d 681 (1995), and affirm the award.

I.

In accordance with the usual standard of reviewing the

commission's decision, we view the evidence in the light most

favorable to Bradley, the party prevailing below. R.G. Moore

Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788

(1990). So viewed, the evidence proved that Bradley was - * Pursuant to Code § 17-116.010 this opinion is not designated for publication. performing his duties as a custodian at the Trevillian Elementary

School in Louisa County on March 2, 1995. At 6:00 p.m., when

Bradley was discarding trash from the school into an outside

trash bin, he heard a gunshot. A bullet ricocheted off the trash

dumpster and hit Bradley in the left shoulder. As Bradley turned

to run for shelter, he felt pain in his groin area. The evidence

proved that he suffered a direct inguinal hernia.

Bradley testified that the school is in a rural area and

that he never saw the shooter. He also testified that in the

past school officials have "tucked the kids in the school house"

and called police because deer hunters were shooting close to the

school. Although he could not recall that any school employees

had previously been hit by a bullet on school grounds, he

testified that the school building had been hit by bullets. He

further testified that people are "always shooting around there." II.

"Whether an injury arises out of the employment is a mixed

question of law and fact." Plumb Rite Plumbing Service v.

Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305, 305 (1989). An accident arises out of the employment if a causal connection is established between the employee's injury and the conditions under which the employer required the work to be performed. The causative danger must be peculiar to the work and not common to the neighborhood.

Our inquiry is not ended simply because the general public is also exposed to the risk. As the Supreme Court stated . . . , "[t]he mere fact that the hazard is one to which the general public is likewise exposed

- 2 - is not . . . conclusive against the existence of such causal relationship. The requisite nexus in an assault case is supplied if there is 'a showing that the probability of assault was augmented either because of the peculiar character of the claimant's job or because of the special liability to assault associated with the environment in which he must work.'" Jobs often held to pose a special risk of assault are those that involve working in . . . dangerous areas.

Roberson, 21 Va. App. at 271, 463 S.E.2d at 682 (citations

omitted). The principle is well established that "[f]actual findings

by the commission that are supported by credible evidence are

conclusive and binding upon this Court on appeal." Southern Iron

Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34

(1993). Relying upon Bradley's unrebutted testimony, the

commission found "that gunshots fired by hunters are frequent in

the area of the school[,] [t]he police have been called to clear

away hunters, the school building has been hit, and children have

been kept inside the building." No claim is made that Bradley's

testimony was not credible.

The commission's findings and the evidence that support

those findings are sufficient to establish that Bradley's

injuries arose out of his employment. See R&T Investments Ltd.,

228 Va. 249, 253-54, 321 S.E.2d 287, 289-90 (1984); Roberson, 21

Va. App. at 272-73, 463 S.E.2d at 683. The evidence proved that

Bradley's risk of injury from gunfire increased due to his

employment. Thus, for the reasons discussed in Roberson, we find

- 3 - the employer's reliance upon Hill City Trucking, Inc. v.

Christian, 238 Va. 735, 385 S.E.2d 377 (1989); Metcalf v. A.M.

Express Moving Systems, Inc., 230 Va. 464, 339 S.E.2d 177 (1986);

and Baggett and Dick Meador Trucking Cos. v. Dillon, 219 Va. 633,

248 S.E.2d 819 (1978), to be unpersuasive. See 21 Va. App. at

273-74, 382 S.E.2d at 684.

Therefore, we affirm the commission's award of temporary

total disability benefits and reasonable costs of medical

treatment. Affirmed.

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