Opinion
Record No. 1833-92-2
May 4, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(John L. Taylor, III, on brief), for appellant.
(E. Wayne Powell, on brief), for appellees.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
Vernon M. Rogers contends that the commission erred in denying him compensation on the basis that his testimony and other facts were inherently inconsistent or incredible. He also contends that the "two causes rule" is applicable and mandates a finding that he met his burden of proving a causal connection between his alleged carbon monoxide inhalation and his pulmonary condition.
Rogers was employed by Universal Life Insurance Company beginning in January 1991 as a debit insurance agent. His job required that he drive his car on a specific route collecting insurance payments from various customers. When he took this job, he filled out an information sheet for the employer. On the sheet, he stated that he owned a 1978 Dodge Magnum vehicle. He also provided his employer with proof of insurance coverage on the Dodge vehicle. On the insurance certificate provided to his employer, a 1982 Chevrolet Cavalier was listed as an additional insured vehicle, effective November 1, 1990, to be used as a pleasure vehicle.
In early April 1991, Rogers took the Cavalier to South Motors for repairs because it was running sluggishly. South Motors replaced the check valve and the switching valve in order to repair an exhaust leak. William South, owner and operator of South Motors, testified that as of April 19, 1991 when Rogers picked up the Cavalier, it was repaired and no fumes should have been able to escape into the inside of the vehicle. In addition, South stated that while repairing the vehicle, no cracks in the manifold were discovered.
On April 19, 1991, Rogers drove the Cavalier home from South Motors, a distance of four long blocks. He noticed that the vehicle was still not running properly and he went back to see South. Rogers gave the keys to South and requested that he look at the vehicle. South was busy and did not get a chance to look at the vehicle before Rogers returned and retrieved the keys.
On April 22, 1991, thinking the Cavalier still needed repair, Rogers started to drive it to a garage run by a Mr. Holmes. Mr. Holmes was one of Rogers' insurance clients. On the way there, after travelling approximately three and one-half minutes, Rogers had to stop the vehicle because he was overcome by fumes. In his deposition, Rogers testified that he had all of the windows open at the time. At the hearing, he stated that he only had one window open a crack. He then got back in the car and drove it home. He did not seek medical attention that day, but claims that he called the MCV Poison Control Center.
In his opening brief, Rogers essentially ignores the commission's ruling that his injury did not arise out of his employment. We find this issue to be dispositive of this appeal. A finding by the commission that an injury arose out of and in the course of employment is a mixed finding of law and fact and is properly reviewable on appeal. City of Richmond v. Braxton, 230 Va. 161, 163-64, 335 S.E.2d 259, 261 (1985). The phrase arising "out of" refers to the origin or cause of the injury. County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). To prevail, Rogers must "show that the conditions of his workplace or that some significant work related exertion caused his injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989).
The commission made a finding that Rogers was not engaged in an activity which arose out of his employment when he was transporting his automobile for service to a client repairman. Based on the facts in the record, the commission was justified in concluding that Rogers failed to present credible evidence establishing that his injury arose out of his employment.
Rogers was not in the automobile he had designated to his employer as his work vehicle at the time of the injury. Rather, he was travelling in his personal automobile, which had been designated by him on his insurance policy as a pleasure vehicle. Delores Wooten, the employer's travelling supervisor in April 1991, testified that she had never seen Rogers drive the Cavalier for work purposes, but had only seen him in a 1963 Thunderbird. Exposure to noxious fumes, in the course of taking one's personal vehicle to a garage to have it repaired, is not a hazard that was peculiar to Rogers' work. Rather, it is a hazard to which the general public may be exposed. Thus, Rogers failed to show that the conditions of his workplace or a significant work-related exertion caused his injury. Accordingly, on appeal, we will not disturb the commission's finding that Rogers' injury did not arise out of his employment. Because this ruling disposes of this appeal we need not address the remaining issues presented. For the reasons stated, we affirm the commission's decision.
Affirmed.