Perry Lee Jones v. Mays Electric Company,Inc

• Court: Court of Appeals of Virginia
• Decided: September 24, 2002
• Docket: 2796013
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Frank Argued at Salem, Virginia

PERRY LEE JONES MEMORANDUM OPINION * BY v. Record No. 2796-01-3 JUDGE ROSEMARIE ANNUNZIATA SEPTEMBER 24, 2002 MAYS ELECTRIC COMPANY, INC. AND UNITED CONTRACTORS OF VIRGINIA GROUP SELF-INSURANCE ASSOCIATION

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Philip B. Baker (Sanzone & Baker, P.C., on brief), for appellant.

Richard D. Lucas (Lucas Law Firm, on brief), for appellees.

Perry Lee Jones appeals the decision of the Workers'

Compensation Commission denying him benefits for injuries

sustained on May 22, 2000. He contends that the commission erred

in finding he failed to prove his injury by accident occurred in

the course of his employment. For the reasons that follow, we

affirm. Background

On appeal, we view the evidence in the light most favorable

to Mays Electric Company, Inc., the party prevailing before the

commission, together with all reasonable inferences that may be

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. drawn. See Great Eastern Resort Corp. v. Gordon, 31 Va. App.

608, 610, 525 S.E.2d 55, 56 (2000). In March 2000, Perry Lee

Jones was promoted to electrical foreman for Mays Electric

Company, Inc. ("Mays Electric") on its Cracker Barrel job site.

On May 22, 2000, after working his eight-hour shift at the site

that day, Jones returned at approximately 9:00 p.m. to

temporarily connect, or "temp," the outside lights and electrical

fans to a power source.

After he finished "temping" the lights and fans, Jones

noticed a wire hanging too close to a fan. While Jones used a

ladder to reach the wire, the ladder "skipped" and he fell on his

side. Jones fractured his femur and hip. He returned to work on

June 11, 2000 and resumed his position as foreman of the Cracker

Barrel job. Company work rules provided that the workday began at

7:00 a.m. and ended at 3:30 p.m., unless otherwise authorized.

Any overtime work required authorization. No Mays Electric

employee had authorized Jones to work on the evening of May 22,

2000. Jones believed there was some flexibility in his schedule

because his position as foreman required him to "run the job in a

timely and orderly fashion [and] oversee the project basically."

According to Vince Mays, the owner, "everybody's expected to

leave at [3:30] and report the next day." Mays further stated he

did not know Jones planned to return to work on the night of the

accident and he did not authorize Jones' overtime, which is

"always approved [by him]." Mays testified, and Jones conceded,

that he could have completed the task at the end of his shift.

Mays stressed to his employees that they never work alone - 2 - because "if you do get hurt, there's nobody there to help you."

Specifically, he told Jones, "doing electrical work, [you] could

have been working on something and got shocked, etcetera, and

laid there and died." Jones admitted he should not have worked

alone at the site.

On this evidence, the deputy commissioner found that Jones

failed to prove by a preponderance of the evidence that his

injuries arose out of and in the course of his employment. The

full commission agreed and affirmed the decision of the deputy

commissioner. Analysis

"To qualify for workers' compensation benefits, an

employee's injuries must result from an event 'arising out of'

and 'in the course of' the employment." Smithfield Packing Co.,

Inc. v. Carlton, 29 Va. App. 176, 180, 510 S.E.2d 740, 742 (1999)

(quoting Pinkerton's, Inc. v. Helmes, 242 Va. 378, 380, 410

S.E.2d 646, 647 (1991)). "Whether an injury arises out of and in

the course of employment involves a mixed question of law and

fact, which we review de novo on appeal." Blaustein v. Mitre

Corp., 36 Va. App. 344, 348, 550 S.E.2d 336, 338 (2001).

- 3 - However, the findings of fact made by the commission are binding

upon us when supported by credible evidence. See Ablola v.

Holland Rd. Auto Center, Ltd., 11 Va. App. 181, 183, 397 S.E.2d

541, 542 (1990).

"[A]n accident arises out of . . . employment when it is

apparent to a rational mind, under all attending circumstances,

that a causal connection exists between the conditions under

which the work is required to be performed and the resulting

injury." Smithfield Packing, 29 Va. App. at 181, 510 S.E.2d at

742. An injury "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." Lucas v.

Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972) (citations

omitted).

The commission found as follows:

[T]he claimant was not in a place where he was reasonably expected to be when he was injured. The claimant's work hours were 7:00 a.m. to 3:30 p.m. No unauthorized overtime was allowed, and no one was allowed to be at the worksite [sic] alone. [Jones'] injury occurred at 9:30 at night. The employer had no reason to expect the claimant to go to the worksite [sic] to "temp" the electrical fixtures at that hour . . . . We therefore find that the injury did not occur during the course of the employment.

Credible evidence supports the commission's conclusion that

Mays Electric could not reasonably expect Jones to be at the work

- 4 - site four hours after his shift ended. The workday at Mays

Electric is from 7:00 a.m. to 3:30 p.m. The work rules for Mays

Electric's employees clearly state that overtime is not permitted

without specific authorization and overtime generally occurs only

when the employees are behind on a project. In this case, no one

authorized Jones' return to the work site after hours, and the

job was on schedule. Additionally, Vince Mays noted that Jones

could have "temped" the lights and fan at the end of his shift,

during daylight with others present at the site. Nothing

required him to return to a deserted work site at night to

complete the task. Moreover, Vince Mays always stressed to his

employees that they not work alone, and Jones admitted he should

not have been on the site by himself. Therefore, Mays Electric

could not reasonably expect for Jones to have been on the work

site "temping" the lights and fans on the evening he incurred his

injuries.

Affirmed.

- 5 -