Opinion
Record No. 2148-91-4
July 13, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
David J. Hatmaker, for appellants.
Ralph L. Whitt, Jr. (Barbara J. Balogh; Sands, Anderson, Marks Miller, on briefs), for appellees.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
This appeal is from a decision of the Workers' Compensation Commission denying death benefits. Affirming the commission's decision, we hold that (1) the evidence did not establish as a matter of law that the employee's death arose out of her employment, and (2) that the commission did not err in refusing to admit certain evidence.
The employee disappeared in 1982 while working a night shift at a gas station and convenience store in Harrisonburg. Immediately before she disappeared, she telephoned the police seeking assistance because of an obscene telephone call. Two minutes later, she called the police again because a suspicious person she had seen earlier in the evening had returned to the store's parking lot. A police officer arrived at the store two minutes after her second telephone call and discovered "the doors open, the lights on, the employee's purse and billfold laying on the counter, and the store radio operating." A police investigation uncovered no sign of a struggle and no evidence of theft of money or goods from the store. The employee is still missing.
The commission found "no persuasive evidence . . . that the employee sustained injury . . . [or] death until she was declared dead" by the Circuit Court of Rockingham County. Consequently, the commission concluded that the employee's parents had failed to establish a causal relationship between the employee's death and her employment.
The employee's parents argue that the evidence circumstantially established that the employee was abducted and killed while working in the convenience store. The circumstantial evidence strongly suggests that something untoward occurred to the employee while working for the employer. The evidence, however, did not exclude other possibilities. Evidence of marital discord between the employee and her husband before her disappearance suggests the possibility that the employee may have chosen to disappear voluntarily or that, if abducted, her abduction bore no relationship to her employment. Regardless of the relative probability of one theory or another, the commission concluded that the evidence did not sufficiently support a finding that the employee's disappearance arose out of her employment, a finding essential to an award of death benefits.
The commission's award is "conclusive and binding as to all questions of fact." Code § 65.2-706. Therefore, unless we can say as a matter of law that the evidence established that the employee was abducted and that her abduction arose out of her employment, the commission's finding is binding and conclusive upon us. See Tomko v. Michael's Plastering Co., Inc., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). The commission found that the evidence in the record of the employee's injury or death was not "persuasive." We are unable to say as a matter of law that the commission ruled incorrectly.
The employee's parents also contend that the commission erred in not admitting certain evidence. We find, however, no error in the exclusion of this evidence.
First, the commission did not err in refusing to allow questions to be propounded to a police captain and a police detective concerning whether, in their opinion, the facts and circumstances of the employee's disappearance were consistent with her being abducted and inconsistent with her leaving voluntarily. Further, the commission correctly refused to allow these witnesses to be asked whether "credible evidence" supported any other hypothesis than that the employee was abducted and killed or that she had voluntarily left and secreted herself from her family. These questions sought an opinion upon the ultimate issue of fact before the commission. The Supreme Court has consistently held that "the admission of expert opinion upon an ultimate issue of fact is impermissible because it invades the function of the fact finder." Llamera v. Commonwealth, 243 Va. 262, 264, 414 S.E.2d 597, 598 (1992). The commission, therefore, did not err in excluding this testimony.
Next, the employee's parents contend that the commission erred in refusing to admit into evidence a letter of sympathy written on stationery containing the name of the employer, in which the author expressed sorrow that the employee "was taken from the store." Although the document appears to be a letter from another employee, it does not identify who that employee is or in what capacity the employee was acting at the time the employee wrote the letter. Appellant offered no evidence of the authority of the author to bind the employer. See Bankers Ins. Co. v. Henderson, 196 Va. 195, 208, 83 S.E.2d 424, 431 (1954). Furthermore, the statement in the letter was at best an opinion on an ultimate issue of fact and, therefore, inadmissible.See Llamera, 243 Va. at 264, 414 S.E.2d at 598.
Finally, the employee's parents contend that the commission erred in failing to admit the content of a telephone conversation the employee's father had with counsel for the employer. According to the proffer, the attorney told him that the employee's daughter was entitled to "a substantial benefit . . . due to the situation." This statement was offered in response to the father's question of whether "any benefits or anything insurance wise" were available, and was offered as an admission by the employer that compensation benefits were due. The question and the response contained in the proffer are too vague to permit one to surmise that the father and the attorney were discussing workers' compensation benefits. Therefore, the statement did not tend in any way to prove or disprove a fact in issue and was not admissible.
For these reasons, the commission's decision denying an award is affirmed.
Affirmed.
Although I join with the majority in affirming the commission's disputed evidentiary rulings, I find that the remaining uncontradicted evidence established, as a matter of law, that the employee's disappearance arose from her employment.
The record disclosed conditions of employment that clearly increased the employee's exposure to the criminal conduct of others, a risk or "causative danger . . . peculiar to the work and not common to the neighborhood." R T Investments, Ltd. v. Johns, 228 Va. 249, 253, 321 S.E.2d 287, 289 (1984) (quotingIn re: McNicol, 215 Mass. 497, 499, 102 N.E. 697, 697 (1913)). It was a hazard which "followed as a natural incident of the work and . . . contemplated by a reasonable person familiar with the whole situation." Id. at 252, 321 S.E.2d at 289. Nevertheless, the employer neither acted to abate the threat nor provided minimal security for the employee. See Plummer v. Landmark Communications, Inc., 235 Va. 78, 86, 366 S.E.2d 73, 77 (1988); see also City of Richmond v. Braxton, 230 Va. 161, 164-65, 335 S.E.2d 259, 261-62 (1985). Under such circumstances, injury appearing to originate in criminal agency "connected with the employment and to have flowed from that source as a rational consequence," arises from such employment. See R T Investments, Inc., 228 Va. at 253, 321 S.E.2d at 289.
Although the commission was not persuaded that the employee was the victim of compensable criminal activity, this conclusion is not binding on appeal absent "evidence, or reasonable inferences . . . drawn from the evidence, to support the . . . findings." Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986). When "there is no conflict in the evidence or where there is no credible evidence to support the commission's factual findings, the question is the sufficiency of the evidence, which is a question of law."Stancill v. Ford Motor Co., 15 Va. App. 54, 58, 421 S.E.2d 872, 874 (1992); Cibula v. Allied Fibers and Plastics Co., 14 Va. App. 319, 324, 416 S.E.2d 708, 711 (1992), aff'd, 428 S.E.2d 905 (1993). "Whether credible evidence exists to support a factual finding is a question of law which is properly reviewable on appeal." Hercules, Inc. v. Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991).
An "inference . . . permits a finder of fact to conclude the existence of one fact from the proof of one or more other facts," and it may not rest upon speculation. Morton v. Commonwealth, 13 Va. App. 6, 9, 11, 408 S.E.2d 583, 584, 585-86 (1991). Because the only rational inference from the evidence in this record is that the employee was the victim of a criminal act perpetrated in the course of and arising from her employment, I would reverse the commission and award benefits accordingly. See Thomas Nelson Ltd. Partnership v. Fritz, 11 Va. App. 269, 273, 397 S.E.2d 891, 894 (1990).