COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Frank and Senior Judge Hodges Argued at Salem, Virginia
ROYSTER CLARK, INCORPORATED AND LEGION INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No. 1031-99-3 JUDGE SAM W. COLEMAN III DECEMBER 14, 1999 CHARLES D. BAYS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Mark S. Davis (Nancy C. Auth; Carr & Porter, L.L.C., on briefs), for appellants.
Richard M. Thomas (Rider, Thomas, Cleaveland, Ferris & Eakin, on brief), for appellee.
Royster Clark, Incorporated and Legion Insurance Company
appeal the Workers' Compensation Commission's decision awarding
Charles D. Bays benefits for injuries sustained in an automobile
accident. The commission held that the automobile accident "arose
out of" Bays' employment. We agree and affirm the commission's
decision.
BACKGROUND
In January 1998, Bays was employed as a salesman for Royster
Clark, a farming supply distributor. Bays' sales area consisted
of a large portion of western and southwestern Virginia. Royster
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Clark routinely provided Bays a vehicle to travel his sales area
and to make sales calls to regular and prospective customers.
Bays traveled approximately 35,000 miles per year for Royster
Clark. When not calling upon customers, Bays worked from his
home, where Royster Clark furnished him a telephone, fax machine,
copier, and typewriter.
On January 21, 1998, Bays made a sales trip to several
localities in southwest Virginia. While calling on a customer at
Gate City, Bays, who had been diabetic for more than twenty years,
felt his blood sugar "getting low." Based on past experience,
Bays knew that his thought process could become impaired.
Nevertheless, he continued the meeting with his client and planned
to get a Coke from a vending machine at the first opportunity in
order to elevate his blood sugar level. When Bays did so, he
mistakenly purchased a Diet Coke. Believing that he had corrected
the diabetic problem, Bays got into his vehicle and began the
drive to his next destination. If time permitted, Bays was
planning to visit another customer; if not, Bays would return to
his home office in Salem. After Bays traveled just a few miles,
he drove off the road, hitting a tree and severely injuring
himself. Bays suffered a cervical vertebral fracture, resulting
in quadriplegia.
- 2 - ANALYSIS
Royster Clark concedes that Bays suffered an injury
occurring "in the course of" his employment, but asserts that
Bays failed to prove that his accident "arose out of" his
employment. Royster Clark argues that Bays was responsible for
exposing himself to an increased risk of injury by driving when
he knew that he was impaired and that this increased risk was
not peculiar to his employment but was solely related to his
diabetic condition. In addition, Royster Clark argues that the
commission erred in describing Bays' diabetic condition as
idiopathic.
On appeal, we view the evidence in the light most favorable
to Bays, the prevailing party. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788-89 (1990).
We accept the commission's factual findings when they are
supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
"This Court is not bound by the legal determinations made by the
commission. '[W]e must inquire to determine if the correct
legal conclusion has been reached.'" Cibula v. Allied Fibers &
Plastics, 14 Va. App. 319, 324, 416 S.E.2d 708, 711 (1992)
(quoting City of Norfolk v. Bennett, 205 Va. 877, 880, 140
S.E.2d 655, 657 (1965)), aff'd, 245 Va. 337, 428 S.E.2d 905
(1993) (per curiam). "Whether an injury arises out of the
- 3 - employment is a mixed question of law and fact . . . ." Plumb
Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d
305, 305 (1989).
In order for an injured worker to recover under the Act,
the claimant must prove an injury by accident "arising out of
and in the course of the employment." Code § 65.2-101. "The
phrases arising 'out of' and arising 'in the course of' are
separate and distinct." County of Chesterfield v. Johnson, 237
Va. 180, 183, 376 S.E.2d 73, 74 (1989). "The phrase arising
'out of' refers to the origin or cause of the injury." See id.
"An injury 'arises out of' the employment if a causal connection
exists between the claimant's injury and 'the conditions under
which the employer requires the work to be performed' or a
'significant work related exertion.'" Bassett-Walker, Inc. v.
Wyatt, 26 Va. App. 87, 92, 493 S.E.2d 384, 387 (1997) (en banc)
(quoting Grove v. Allied Signal, Inc., 15 Va. App. 17, 19, 421
S.E.2d 32, 34 (1992)).
An injury does not arise out of one's employment if it is caused by "a hazard to which the employee would have been equally exposed apart from the employment." However, if an injury "has followed as a natural incident of the work and has been a result of an exposure occasioned by the nature of the employment," then the injury "arises out of" the employment.
Marion Correctional Treatment Center v. Henderson, 20 Va. App.
477, 480, 458 S.E.2d 301, 303 (1995) (citations omitted).
- 4 - Virginia has adopted the "actual risk" test and has
rejected the "positional risk" test followed by other
jurisdictions in determining whether an injury arises out of the
employment. See Johnson, 237 Va. at 185, 376 S.E.2d at 75-76.
The positional risk doctrine generally requires only that the
injured employee prove that the injury occurred during the time
and at the place of employment. See id.; see also Hill City
Trucking v. Christian, 238 Va. 735, 740, 385 S.E.2d 377, 380
(1989); Zahner v. Pathmark Stores, Inc., 729 A.2d 478, 479 (N.J.
Super. Ct. 1999) (claimant need prove only "probably more true
than not that the injury would have occurred during the time and
place of employment rather than somewhere else"). In order to
be compensable under the actual risk test, "the origin or cause
of the injury" must be a risk connected with the employment.
"That risk must be an 'actual risk' of employment, not merely
the risk of being injured while at work." Taylor v. Mobil
Corp., 248 Va. 101, 107, 444 S.E.2d 705, 708 (1994).
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COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Frank and Senior Judge Hodges Argued at Salem, Virginia
ROYSTER CLARK, INCORPORATED AND LEGION INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No. 1031-99-3 JUDGE SAM W. COLEMAN III DECEMBER 14, 1999 CHARLES D. BAYS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Mark S. Davis (Nancy C. Auth; Carr & Porter, L.L.C., on briefs), for appellants.
Richard M. Thomas (Rider, Thomas, Cleaveland, Ferris & Eakin, on brief), for appellee.
Royster Clark, Incorporated and Legion Insurance Company
appeal the Workers' Compensation Commission's decision awarding
Charles D. Bays benefits for injuries sustained in an automobile
accident. The commission held that the automobile accident "arose
out of" Bays' employment. We agree and affirm the commission's
decision.
BACKGROUND
In January 1998, Bays was employed as a salesman for Royster
Clark, a farming supply distributor. Bays' sales area consisted
of a large portion of western and southwestern Virginia. Royster
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Clark routinely provided Bays a vehicle to travel his sales area
and to make sales calls to regular and prospective customers.
Bays traveled approximately 35,000 miles per year for Royster
Clark. When not calling upon customers, Bays worked from his
home, where Royster Clark furnished him a telephone, fax machine,
copier, and typewriter.
On January 21, 1998, Bays made a sales trip to several
localities in southwest Virginia. While calling on a customer at
Gate City, Bays, who had been diabetic for more than twenty years,
felt his blood sugar "getting low." Based on past experience,
Bays knew that his thought process could become impaired.
Nevertheless, he continued the meeting with his client and planned
to get a Coke from a vending machine at the first opportunity in
order to elevate his blood sugar level. When Bays did so, he
mistakenly purchased a Diet Coke. Believing that he had corrected
the diabetic problem, Bays got into his vehicle and began the
drive to his next destination. If time permitted, Bays was
planning to visit another customer; if not, Bays would return to
his home office in Salem. After Bays traveled just a few miles,
he drove off the road, hitting a tree and severely injuring
himself. Bays suffered a cervical vertebral fracture, resulting
in quadriplegia.
- 2 - ANALYSIS
Royster Clark concedes that Bays suffered an injury
occurring "in the course of" his employment, but asserts that
Bays failed to prove that his accident "arose out of" his
employment. Royster Clark argues that Bays was responsible for
exposing himself to an increased risk of injury by driving when
he knew that he was impaired and that this increased risk was
not peculiar to his employment but was solely related to his
diabetic condition. In addition, Royster Clark argues that the
commission erred in describing Bays' diabetic condition as
idiopathic.
On appeal, we view the evidence in the light most favorable
to Bays, the prevailing party. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788-89 (1990).
We accept the commission's factual findings when they are
supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
"This Court is not bound by the legal determinations made by the
commission. '[W]e must inquire to determine if the correct
legal conclusion has been reached.'" Cibula v. Allied Fibers &
Plastics, 14 Va. App. 319, 324, 416 S.E.2d 708, 711 (1992)
(quoting City of Norfolk v. Bennett, 205 Va. 877, 880, 140
S.E.2d 655, 657 (1965)), aff'd, 245 Va. 337, 428 S.E.2d 905
(1993) (per curiam). "Whether an injury arises out of the
- 3 - employment is a mixed question of law and fact . . . ." Plumb
Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d
305, 305 (1989).
In order for an injured worker to recover under the Act,
the claimant must prove an injury by accident "arising out of
and in the course of the employment." Code § 65.2-101. "The
phrases arising 'out of' and arising 'in the course of' are
separate and distinct." County of Chesterfield v. Johnson, 237
Va. 180, 183, 376 S.E.2d 73, 74 (1989). "The phrase arising
'out of' refers to the origin or cause of the injury." See id.
"An injury 'arises out of' the employment if a causal connection
exists between the claimant's injury and 'the conditions under
which the employer requires the work to be performed' or a
'significant work related exertion.'" Bassett-Walker, Inc. v.
Wyatt, 26 Va. App. 87, 92, 493 S.E.2d 384, 387 (1997) (en banc)
(quoting Grove v. Allied Signal, Inc., 15 Va. App. 17, 19, 421
S.E.2d 32, 34 (1992)).
An injury does not arise out of one's employment if it is caused by "a hazard to which the employee would have been equally exposed apart from the employment." However, if an injury "has followed as a natural incident of the work and has been a result of an exposure occasioned by the nature of the employment," then the injury "arises out of" the employment.
Marion Correctional Treatment Center v. Henderson, 20 Va. App.
477, 480, 458 S.E.2d 301, 303 (1995) (citations omitted).
- 4 - Virginia has adopted the "actual risk" test and has
rejected the "positional risk" test followed by other
jurisdictions in determining whether an injury arises out of the
employment. See Johnson, 237 Va. at 185, 376 S.E.2d at 75-76.
The positional risk doctrine generally requires only that the
injured employee prove that the injury occurred during the time
and at the place of employment. See id.; see also Hill City
Trucking v. Christian, 238 Va. 735, 740, 385 S.E.2d 377, 380
(1989); Zahner v. Pathmark Stores, Inc., 729 A.2d 478, 479 (N.J.
Super. Ct. 1999) (claimant need prove only "probably more true
than not that the injury would have occurred during the time and
place of employment rather than somewhere else"). In order to
be compensable under the actual risk test, "the origin or cause
of the injury" must be a risk connected with the employment.
"That risk must be an 'actual risk' of employment, not merely
the risk of being injured while at work." Taylor v. Mobil
Corp., 248 Va. 101, 107, 444 S.E.2d 705, 708 (1994). The actual
risk test "'requires only that the employment expose the workman
to a particular danger from which he was injured,
notwithstanding the exposure of the public generally to like
risks.'" Olsten v. Leftwich, 230 Va. 317, 319, 336 S.E.2d 893,
894 (1985) (quoting Lucas v. Lucas, 212 Va. 561, 563, 186 S.E.2d
63, 64 (1972)). "[A]n injury 'arises "out of" the employment,
when there is apparent to the rational mind upon consideration
- 5 - of all the circumstances, a causal connection between the
conditions under which the work is required to be performed and
the resulting injury.'" Bradshaw v. Aronovitch, 170 Va. 329,
335, 196 S.E. 684, 686 (1938) (citation omitted).
Royster Clark employed Bays as a salesman. The employer
required that Bays travel to meet with customers in the western
and the southwestern part of Virginia and provided him a car for
his travel. Traveling in his automobile to call upon customers
was a condition of work performed by Bays which exposed him to
the risk of an accident each time he traveled. Because Bays'
employment exposed him to the danger that caused his injury, his
injury by accident arose out of his employment. See PYA/Monarch
and Reliance Ins. Co. v. Harris, 22 Va. App. 215, 222-23, 468
S.E.2d 688, 691 (1996). The injury that Bays suffered, a
cervical vertebral fracture, was a result of the automobile
colliding with a tree, a risk that was directly associated with
his employment as a traveling salesman.
The employer argues, however, that it was Bays' diabetic
condition that caused the accident, not a risk associated with
his employment; thus, Bays' injuries are not compensable.
However, for workers' compensation purposes, we are not so much
concerned with the cause of an accident as we are with whether a
causal relation exists between the injury and the employment.
Although Bays' diabetic condition may have caused the accident,
- 6 - the nature of Bays' employment, specifically the requirement
that he routinely travel, contributed to the risk of injury by
an automobile accident. Bays' injuries were not limited to
those he might have suffered solely as a result of a diabetic
blackout; the cervical vertebral fracture was a result of the
automobile accident. As we explained in PYA/Monarch, "[w]hen an
employee's injuries result from [a pre-existing personal disease
of the employee] and no other factors intervene or operate to
cause or contribute to the injuries sustained . . . , no award
shall be made." 22 Va. App. at 222, 468 S.E.2d at 691.
"However, 'the effects [an accident caused by a pre-existing
condition or] idiopathic fall are compensable if the employment
places the employee in a position increasing the dangerous
effects of" the accident. Id. Because Bays' employment
subjected him to the risk of injury by accident and increased
the dangerous effects of the injury that he received, Bays'
injury arose out of his employment.
Finally, the employer argues that our Supreme Court held in
Immer & Company v. Brosnahan, 207 Va. 720, 152 S.E.2d 254
(1967), that before the effects of a pre-existing condition can
be excused as having caused the accident, the condition must
have occurred "suddenly and without expectation." The employer
argues that Bays' diabetic episode occurred before he entered
his vehicle and was not "suddenly and without expectation." We
- 7 - do not find that the Supreme Court adopted such a requirement in
Immer. Although such language was included in a quote from a
case cited with approval in Immer, 207 Va. at 727, 152 S.E.2d at
259; Tapp v. Tapp, 236 S.W.2d 977 (Tenn. 1951), the Court did
not require that the pre-existing condition occur "suddenly and
without expectation." In fact, the Court, as we do here,
focused upon whether "the employment places the employee in a
position increasing the dangerous effects of such [an injury]
. . . in a moving vehicle." Immer, 207 Va. at 726, 152 S.E.2d
at 258.
The commission did not err in its award of benefits;
therefore, we affirm the decision.
Affirmed.
- 8 -