Turf Care, Inc. v. Henson

657 S.E.2d 787, 51 Va. App. 318, 2008 Va. App. LEXIS 104
CourtCourt of Appeals of Virginia
DecidedMarch 4, 2008
Docket1810072
StatusPublished
Cited by43 cases

This text of 657 S.E.2d 787 (Turf Care, Inc. v. Henson) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Turf Care, Inc. v. Henson, 657 S.E.2d 787, 51 Va. App. 318, 2008 Va. App. LEXIS 104 (Va. Ct. App. 2008).

Opinion

SAM W. COLEMAN III, Judge.

Turf Care, Inc. (“Turf Care”) and the Uninsured Employer’s Fund (“the Fund”) appeal a decision of the Workers’ Compensation Commission awarding temporary total disability and medical benefits to Monroe Henson, Jr. (claimant). Turf Care and the Fund contend the commission erred in finding that (1) claimant sustained an injury by accident arising out of his employment on July 16, 2003; and (2) Windsor Farms, Inc. (“WF, Inc.”) was not claimant’s statutory *323 employer. In addition, Turf Care contends the commission erred in finding it failed to comply with its obligation to provide workers’ compensation insurance coverage pursuant to Code § 65.2-800. For the reasons that follow, we affirm in part, and reverse in part the commission’s decision.

I. Arising out of the Employment

The facts are undisputed. On July 16, 2003, Turf Care assigned claimant and Wilbert Johnson to clean leaves and debris from the gutters of homes in the Windsor Farms (“Windsor Farms”) subdivision. While performing that task, claimant fell from a forty-foot extension ladder from the second story of a home. As a result, he sustained severe orthopedic and neurological injuries. His neurological injuries were so severe that he did not remember anything about the accident.

Johnson testified that as he and claimant cleaned gutters on July 16, 2003, claimant went up and down the ladder, while Johnson held the ladder and assisted in moving it from place to place. Claimant carried a five-gallon bucket up the ladder, reached to the right and left to remove leaves and debris from the gutters, leaning from one side of the ladder to the other, placed the leaves and debris in the bucket, and then carried the bucket back down the ladder and dumped it into a trash can. Johnson stated that each time claimant came down the ladder, they “just slide the ladder over” about two to three feet. Because the ladder was an extension ladder, only one end of it had contact with the ground and the other end leaned on the roof. When asked how claimant got injured, Johnson testified as follows: “All I know is he went up the ladder, tied the bucket up there and then he started cleaning leaves, talking to the man in the window [in another house to the right], then he stopped talking and after that, he fell.” Johnson was “looking up and the next thing” he knew claimant fell. Johnson said claimant “reached to the right to put some leaves in the bucket and then after that he fell.” Johnson asserted that claimant fell to his left, while Johnson was standing facing the house. The bucket did not fall. It was still on the roof at *324 the top of the ladder, right in the very middle of the ladder. At the time of claimant’s fall, he and Johnson had been working for about one-half hour and had gone from the left side of the house almost to the end of the right side of the house.

Michael Carter, claimant’s supervisor, testified that when he arrived at the accident scene, claimant was on the ground and the ladder was “still in the position that it was in when [claimant] fell.”

Based upon this testimony, the commission found that “the facts in this case justify inferring that the claimant was in a dangerous position, doing work that caused him to be more likely to fall, and lost his balance and fell.” We agree.

Whether an employee’s work-related injury arises out of his 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). “ ‘Decisions of the commission as to questions of fact, if supported by credible evidence, are conclusive and binding on this Court.’ ” Basement Waterproofing v. Beland, 43 Va.App. 352, 358, 597 S.E.2d 286, 289 (2004) (quoting WLR Foods v. Cardoso, 26 Va.App. 220, 230, 494 S.E.2d 147, 152 (1997)). The commission is authorized to draw reasonable inferences from the evidence, Beland, 43 Va.App. at 359, 597 S.E.2d at 289, and on appeal, we will not disturb reasonable inferences drawn by the commission from the facts proven by the evidence presented. Id. at 360-61, 597 S.E.2d at 290; K & G Abatement Co. v. Keil, 38 Va.App. 744, 758-60, 568 S.E.2d 416, 423-24 (2002) (commission’s finding of compensable injury affirmed where evidence supported inference that employee fell from rooftop worksite). Furthermore, “ ‘[t]he commission, like any other fact finder, may consider both direct and circumstantial evidence in its disposition of a claim. Thus, the commission may properly consider- all factual evidence, from whatever source, in its decision whether or not a condition of the workplace caused the injury.’ ” Beland, 43 Va.App. at 358, *325 597 S.E.2d at 289 (quoting VFP, Inc. v. Shepherd, 39 Va.App. 289, 293, 572 S.E.2d 510, 512 (2002)).

“[The Workers’ Compensation Act] has always required the claimant to carry the burden of proving, by a preponderance of the evidence, ... an ‘injury by accident’ ... arising out of and ... in the course of, the employment.” “[Claimant’s] evidence [must] demonstrate to the rational mind that [claimant’s injury] is fairly ... traced to [his or] her employment as the proximate cause. That may be accomplished by circumstantial evidence____” “Circumstantial evidence is as competent and is entitled to as much weight as direct evidence, provided it is sufficiently convincing.” “Any fact which may be proved with direct evidence also may be established with circumstantial evidence.”

Id. at 357, 597 S.E.2d at 288 (citations omitted).

“When there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury 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, then it arises out of employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant.”
“[The causative danger] need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.”

Id. at 356-57, 597 S.E.2d at 288 (citations omitted).

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Bluebook (online)
657 S.E.2d 787, 51 Va. App. 318, 2008 Va. App. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turf-care-inc-v-henson-vactapp-2008.