Stratford, etc. v. Phillip Alan Sharp

• Court: Court of Appeals of Virginia
• Decided: April 2, 1996
• Docket: 2142954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Overton Argued at Alexandria, Virginia

STRATFORD & MONTICELLO SQUARE APARTMENTS AND STATE FARM FIRE AND CASUALTY COMPANY

v. Record No. 2142-95-4 MEMORANDUM OPINION * BY JUDGE NELSON T. OVERTON PHILLIP ALAN SHARP APRIL 2, 1996

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION John M. Poma (Midkiff & Hiner, on briefs), for appellants.

Kathleen G. Walsh (Ashcraft & Gerel, on brief), for appellee.

Appealing from a decision by the Workers' Compensation

Commission, Stratford & Monticello Square Apartments and its

insurer (collectively "employer") contend that employee Phillip

Sharp's injury arose neither out of nor in the course of his

employment. We disagree with this contention, and we affirm the

commission's award of benefits.

Sharp was employed as a painter by Stratford & Monticello

Square Apartments, normally working hours between 7:30 a.m. to 4

p.m. "Not often but occasionally," Sharp's employer asked him to

do tasks outside of his normal working day. These tasks included

running off loiterers and homeless people, responding to a stove

fire, and checking vacant apartments for trespassers. He

received all of his orders from the resident manager, Elizabeth * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Dulin, or her son.

On the evening of December 7, 1993, at approximately 7:00,

Sharp received a call from Dulin, who asked him to come help her

at her office. When Sharp arrived at Dulin's office, he found

her dizzy with an extremely elevated blood pressure. He called

the rescue squad, who advised upon arrival that Dulin should go

to the hospital. They placed her on a gurney, and Sharp helped

them move the gurney out of the apartment and down the stairs.

At the ambulance, Sharp was told to lift and to pull a lever

underneath. As he pulled the lever he felt a sharp pain in his

shoulder. He was later diagnosed as having torn his rotator cuff

from this incident. The full commission awarded Sharp benefits, finding that his

injury by accident arose out of and in the course of his

employment. Although Sharp was not instructed directly by his

employer to help move the stretcher, his actions were part of the

same transaction in which his employer summoned him to her

office.

To receive compensation for an injury by accident under the

Workers' Compensation Act, an employee must show the injury arose

both 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). Arising

"out of" refers to the origin or cause of the injury, while

- 2 - arising "in the course of" refers to the time, place, and

circumstances under which the accident occurred. Id. The two

elements must each be proven, although frequently proof of one

will incidentally tend to establish the other. Virginia

Polytechnic Inst. v. Wood, 5 Va. App. 72, 75, 360 S.E.2d 376, 378

(1987).

An injury arises out of the employment if it 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. VPI, 5 Va. App. at 75, 360 S.E.2d at 378; Conner

v. Bragg, 203 Va. 204, 208-09, 123 S.E.2d 393, 397 (1962). Some

causal connection must exist between the employee's injury and

the conditions under which the employer requires the work to be

performed. Carr v. City of Norfolk, 15 Va. App. 266, 269, 422

S.E.2d 417, 418 (1992). This determination rests on the

particular facts of a case. Id. The facts in this case show that Sharp was required to

perform a myriad of jobs in his position at the apartment

complex. Sharp did many varied tasks as Dulin directed him to

do. On the night in question, Dulin asked Sharp to come to her

office and assist her. In light of his past duties, Sharp's

reaction to her call was consistent with the terms of his

employment and the subsequent events arose out of his employment.

"[A]n accident occurs in the 'course of employment' when it

- 3 - 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." Thore v.

Chesterfield County Bd. of Supervisors, 10 Va. App. 327, 331, 391

S.E.2d 882, 885 (1990) (quoting Conner, 203 Va. at 208, 123

S.E.2d at 396). The employee must show "an unbroken course

beginning with work and ending with injury under such

circumstances that the beginning and the end are connected parts

of a single work-related incident." Graybeal v. Montgomery

County, 216 Va. 77, 80, 216 S.E.2d 52, 54 (1975). The injury may

occur after the employee's actual employment labors are

completed. Kim v. Sportswear, 10 Va. App. 460, 464, 393 S.E.2d

418, 421 (1990); see Thore, 10 Va. App. at 331, 391 S.E.2d at

885.

Sharp responded to his employer's request by walking to her

office to determine what job she needed done. At that point and

continuing, the tasks Sharp performed were either required by his

employment or were reasonably incidental thereto. As such, his

injury arose in the course of his employment.

The commission's determination that Sharp's injury by

accident arose out of and in the course of his employment is

supported by credible evidence.

Affirmed.

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