Prince William County School Board v. Fogarty

• Court: Court of Appeals of Virginia
• Decided: August 31, 1999
• Docket: 1866984
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Lemons and Senior Judge Duff Argued at Alexandria, Virginia

PRINCE WILLIAM COUNTY SCHOOL BOARD MEMORANDUM OPINION * BY v. Record No. 1866-98-4 JUDGE CHARLES H. DUFF AUGUST 31, 1999 SHARON E. FOGARTY

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Thomas C. Palmer, Jr. (Brault, Palmer, Grove, Zimmerman, White & Mims, on briefs), for appellant.

Sharon E. Fogarty, pro se.

Prince William County School Board (employer) appeals a

decision of the Workers' Compensation Commission (commission)

awarding benefits to Sharon E. Fogarty (claimant). Employer

contends the commission erred in finding that claimant proved she

sustained an injury by accident arising out of her employment on

September 27, 1995. 1 Finding no reversible error, we affirm the

commission's decision.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. 1 This was the only issue before the commission when it rendered its decision. Therefore, we decline to address any additional issues presented by claimant in her brief on appeal. We review the evidence in the light most favorable to

claimant as the prevailing party. When so viewed, the record

establishes the following:

On September 27, 1995, claimant worked for employer as an

assistant principal at Bennett Elementary School. On that date,

she and Graham Spencer, the school's principal and her supervisor,

were standing outside the school in the parking lot supervising

the children as they boarded the school buses to go home.

Claimant described part of her assistant principal duties as doing

whatever the principal directed her to do.

Spencer's daughter drove into the parking lot and parked her

car. She had Barney, a Norwegian Elkhound and the Spencers'

family pet, in the car with her. She planned to take Barney to

the veterinarian and had stopped at the school to pick up a check

from her father.

Claimant testified that Spencer's daughter walked over to

where she and Spencer were located. Claimant saw Spencer and his

daughter talking. At that point, Spencer directed claimant to go

over to the car and "meet the dog." Claimant testified that she

declined twice but Spencer continued to insist that she go and see

the dog. Claimant then followed Spencer's daughter to the car,

where she began petting the dog and talking to Spencer's daughter.

At that point, the dog, who had his head out of the car window,

bit claimant's nose. On the way to the hospital, Spencer lamented

to claimant, "Why did I make you go over there?"

- 2 - The commission, in affirming the deputy commissioner,

accepted claimant's testimony and found that she "twice declined

Spencer's request that she meet Barney, but finally acquiesced to

the request of her supervisor when he directed her to do so a

third time." The commission found that "[h]er contact with the

dog, although not a part of her regular work duties, was in direct

response to a demand of her supervisor." Thus, the commission

concluded that claimant's evidence proved that her "injury

resulted from an actual risk of her employment."

"The commission's decision that an accident arises out of the

employment involves a mixed question of law and fact and is thus

reviewable on appeal." Southside Virginia Training Ctr. v. Shell,

20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995).

In Arrington v. Murray, 182 Va. 1, 28 S.E.2d 19 (1943), the

Supreme Court held that an injury arises out of the employment

when the employee is performing work directed by one of the

business partners, even if the work was not in the trade,

business, or occupation of the employer but was personal to the

partner and performed at his residence. See id. at 5, 28 S.E.2d

at 20-21. The Supreme Court agreed with the commission that it

would be inequitable to allow an employer to direct an employee to

perform work and then deny that the employee was protected by the

Virginia Workers' Compensation Act. See id. at 5, 28 S.E.2d at

21. Where the employee is injured while performing an activity

that the employer has instructed him or her to do, that work

- 3 - constitutes part of an employee's employment responsibilities and

required work, even though different from his or her usual and

regular tasks performed in the employer's business. See Honaker &

Feeney v. Hartley, 140 Va. 1, 13, 124 S.E. 220, 223 (1924).

As one authority has noted, activity that is not an integral

or normal part of the job becomes such where the employer's

request clearly conveys the understanding that the employee was to

take part in the activity. See 2 Arthur Larson, Larson's Workers'

Compensation Law § 22.04(2) (1999). Claimant's unrebutted

testimony was that among her job duties was to do whatever Spencer

directed her to do. This testimony, coupled with the three

"directions" by Spencer that she meet the dog, provides credible

evidence in support of the commission's decision that the accident

arose out of claimant's employment.

Employer's reliance on Lipsey v. Case, 248 Va. 59, 445 S.E.2d

105 (1994), is misplaced. In that case, Lipsey was a "working

student." In exchange for performing duties on the farm, she

received instruction on farm operation, riding lessons, and room

and board. She shared living facilities with two other working

students. A dog belonging to one of these students bit Lipsey on

her face during a lunch break at the house. The Court held that

while the injury occurred in the course of the employment it did

not arise out of the employment. The Court found no causal

connection between Lipsey's required work and her injury. See id.

at 61-62, 445 S.E.2d at 107. Further, Lipsey did not allege that

- 4 - the employer required her to have physical contact with the dog.

Although the dog lived in the house and freely roamed the farm,

the employer did not direct Lipsey to "meet" the dog as claimant

was repeatedly instructed to do by Spencer.

The record supports the commission's finding that claimant

was instructed by her supervisor to go see his dog, Barney, and

that her contact with the dog, while not a part of her regular

work duties, was in direct response to this instruction by the

supervisor. With her duties being what the principal directed her

to do, she clearly felt obligated to comply. 2 Thus, claimant's

injury resulted from an actual risk of her employment.

Accordingly, the commission's opinion is affirmed.

Affirmed.

2 We do not imply that a request of an employee to commit a crime or an act that would manifestly result in serious personal injury would have to be followed. Each case is fact specific, and we find sufficient credible evidence, on the facts in the record, to support the commission's opinion.

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