Opinion
Record No. 0773-93-1
November 9, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(William W. Nexson; Timothy P. Murphy; Stackhouse, Rowe Smith, on brief), for appellants.
(Alan P. Owens, on brief), for appellee.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Luskins, Inc. contends that Terry Neal's injury did not arise out of her employment. 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.
The facts are undisputed. Neal worked as a cashier for Luskins in its Hampton store. On May 21, 1992, Neal was asked to travel to Luskins' Norfolk store to get paychecks for employees in the Hampton store. Although Luskins sent an employee each week to get the checks, it did not provide the means of transportation. To perform this duty, Neal was required to use her personal automobile. She was paid wages for the travel time, but not reimbursed for mileage expenses.
While driving to Norfolk through the Hampton Roads Bridge Tunnel, the temperature light in Neal's automobile came on and a loud explosion occurred. Hot steam from a defective part spewed into Neal's automobile and severely burned her.
The commission found that Neal's injury arose out of her employment. It also found that driving from Hampton to Norfolk was within the course of Neal's employment because Neal was on a special mission at Luskins' direction. The commission also found that Neal's inability to stop in the tunnel when the temperature light came on, constituted an added risk of her employment. The commission, therefore, concluded that Neal was injured due to a risk of the employment and the actual risk of traversing the streets. Luskins contends that no evidence proved a causal connection between Neal's injury and employment and that the evidence did not prove the requirements of the actual risk test.
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). "In Virginia we have adopted the 'actual risk test,' which requires only that the employment expose the workman to the particular danger from which he was injured, notwithstanding the exposure of the public generally to like risks." Lucas v. Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972). Thus, in order to recover, Neal was required to prove that her duties required her presence on the public streets and that her injury arose from an actual risk of that presence on the streets. Sentara Leigh Hospital v. Nichols, 13 Va. App. 630, 634, 414 S.E.2d 426, 428 (1992).
Credible evidence supports the commission's finding that Neal's employment duties required her presence on the public streets. Neal was sent on the mission by Luskins. She was required to use her personal automobile, which necessarily resulted in her being on the streets and, in particular, resulted in her being in the tunnel. In addition, she was paid for her time spent in travel.
Moreover, credible evidence establishes that Neal's injury arose from the actual risk of her presence on the streets. When Neal was injured, she was at a location she was reasonably expected to be, while engaged in an activity incidental to her employment. Her travel to Norfolk required her to drive through the tunnel, where she could not stop following the explosion. The obligations of her employment caused her to be in her automobile at the time of the accident and, thus, exposed her to the hazard or risk of the happening of the accident.
This evidence proved that Neal's injury arose out of and in the course of her employment. Thus, we affirm the commission's decision.
Affirmed.