Opinion
Record No. 0833-92-4
December 1, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Anthony W. Hawks, pro se, on briefs).
(Benjamin J. Trichilo; Lewis, Trichilo, Bancroft McGavin, on brief), for appellees.
Present: Judges Barrow, Moon and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Upon reviewing the record and the briefs of the parties, we conclude that the appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
The sole issue on this appeal is whether Anthony W. Hawks' injury arose out of and in the course of his employment. On appellate review, we consider the evidence in the light most favorable to the party prevailing below. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). The findings of fact made by the commission are binding upon us when supported by credible evidence. Dublin Garment Co. v. Jones, 2 Va. App. 165, 167, 342 S.E.2d 638, 638 (1986). A finding of the commission that an injury did or did not arise 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).
On Sunday, August 26, 1990, between 7:00 and 8:00 p.m., Hawks, an associate attorney employed by Hazel Thomas, in its Washington D.C. office, was injured when he stepped off the safety island curb on "K" Street into moving traffic and into the side of a moving vehicle. At the time of his injury, he was escorting a fellow female associate, Lee Willis, to dinner. Hawks had come to the office that night to work on a legal brief which was due the next day. He had eaten dinner before returning to the office.
Willis, who was the only other individual in the office, asked Hawks to escort her to dinner. Hawks testified that he escorted Willis because she asked him to, and because he knew that she was working late and needed a break. Willis' stipulated testimony was that she was not comfortable going out to dinner by herself. Willis did not want to go home for dinner, because she was working on a project which was due the next week, and if she went home she would not be able to return that night to continue working.
Ronald Grover, one of the owners of the law firm, testified that the firm had no requirement that an associate attorney accompany another one for meals after work. Furthermore, Linda Manson, Director of Human Resources for the firm, testified that there were no company policies that required an associate or any other employee to escort other employees off premises to lunch or dinner. This evidence was uncontroverted.
To have prevailed in this case, Hawks was required to prove two factors by a preponderance of the evidence. First, that his duties to the law firm required his presence upon the public street, and second, that his injury arose from an actual risk of that presence upon the street. See Sentara Leigh Hosp. v. Nichols, 13 Va. App. 630, 634, 414 S.E.2d 426, 428 (1992). Hawks' failure to meet his burden of proof as to the first factor is dispositive of this appeal.
The record supports the commission's finding that Hawks' presence on "K" Street was entirely voluntary, and the purpose of his accompaniment of Willis was altogether personal. No evidence in the record reflects that Hawks' presence on the street was part of the duties required by his job or that his employer derived any benefit from his accompaniment of Willis. The record reveals that Hawks was neither required to nor directed to escort Willis, and was not performing any service related to his work as an associate attorney at the time of his injury.
Moreover, the commission's ruling is supported by the case ofDreyfus Co. v. Meade, 142 Va. 567, 129 S.E. 336 (1925). InDreyfus, the Virginia Supreme Court denied compensation to a night watchman who was struck by an automobile while walking to a restaurant to get a lunch. Here, as in Dreyfus, no evidence showed that the claimant's job duties required him to be on the public street or that he was performing any service to his employer by being on the street. In other words, Hawks did not prove that his accident took place where he was reasonably expected to be and while he was reasonably fulfilling the duties of his employment or doing something which was reasonably incidental thereto. See Conner v. Bragg, 203 Va. 204, 123 S.E.2d 393 (1962).
Thus, upon consideration of all relevant factors, it is clear that the commission did not err in finding that Hawks' injury did not occur in the course of his employment. Having found that the commission did not err with respect to this issue, we need not address the issue of whether Hawks' injury arose out of an actual risk of his employment.
For the reasons stated, we affirm the commission's decision.
Affirmed.