Opinion
Record No. 1170-92-2
January 25, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
David W. Drash (Denton Drash, on brief), for appellants.
Jillana L. Hicks (William G. Shields Associates, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The Vaden Company, Inc. appeals the decision of the Workers' Compensation Commission awarding John S. Keister compensation benefits. It contends that the evidence is insufficient to support the commission's findings that: (1) Keister was "in the course of" his employment at the time of the automobile accident when the evidence proved only that claimant was headed toward his home after conclusion of all known business duties; and (2) Keister's injury "arose out of" his employment when no evidence established what caused the accident. We affirm the commission's award and find that Keister's injury arose in the course of and out of his employment.
The facts are not in dispute. Keister was a thirty-seven year old salesman of wastewater treatment systems. His work involved, to a limited extent, the design of treatment systems and the service of those sold by his employer. Keister was injured in a single car accident on June 7, 1991. He was driving west on Interstate 64 almost halfway between Norfolk and Richmond when his car ran off the road at 4:50 p.m. Keister was thrown from the vehicle, suffering, among other injuries, traumatic brain injury causing a loss of memory.
Reid Milligan, the sole witness to the accident, testified that he was driving behind Keister's car when he saw it run off the road and into a ditch. He stated:
[I] observed [Keister's vehicle] drift off to the side of the road into the ditch. I saw no brake lights or any attempt to correct the swerving off to the side. He went into the ditch and hit a side rail . . . [and] flipped over. . . . Road conditions were fine that day. I observed no other vehicles coming anywhere near his vehicle though my view could have been obstructed by the vehicle right in front of me. Someone in the right lane could have, I supposed [sic], swerved some, but had that occurred, I'm sure I would have seen brake lights from his vehicle.
Encil Webster, president of Vaden Company, described Keister as a "sales engineer" whose job was to develop sales of the company's products within Virginia. To do this, Keister was required to travel in his work. Webster stated that his company had several ongoing jobs in Norfolk and that Keister had no set hours of work. Keister had a car phone paid for by Vaden Company; however, the bill was later subtracted from his commissions. Keister was paid commissions and certain fringe benefits; he used his own car to travel and paid his own car expenses. In addition to his travels, Keister "spent a lot of time in the [Richmond] office as well."
On the day following the accident, Keister was scheduled to fly to Texas on company business very early in the morning. After the accident, the plane ticket was found in Keister's in-box at the Richmond office.
The evidence further established that on the day of the accident, Keister placed eleven phone calls from his vehicle: five to Richmond, three to Norfolk, two to Virginia Beach and two to Georgia, where one of Vaden Company's manufacturers is located. One of the calls to Georgia occurred at 3:38 p.m., and the last recorded call was to Richmond at 3:48 p.m., approximately one hour before the accident. Webster testified that he talked by phone with Keister on the day of the accident just before lunch; Keister was using his car phone at the time. In that conversation, Keister told Webster about a morning meeting with a client and that he was on his way to a pump station of the Norfolk Utilities Department to discuss some mechanical malfunctions that were occurring at the station. Webster explained that the purpose of Keister having a car phone was so that he could take care of business calls while he was traveling for the company.
Noting the lack of evidence that Keister was paid mileage expenses by his employer or that he had performed any other work-related tasks before returning to Richmond, the deputy commissioner found that Keister "was returning from his business related activity in Norfolk and was coming to Richmond." Therefore, he denied Keister's claim under the "going or coming" rule, stating that the claimant failed to carry his burden to establish that "at the time of his injury [he] was in the course of his employment." He also determined that Keister's case did not fit within any of the exceptions to the rule. Accordingly, he dismissed the claimant's claim for compensation.
The commission reversed the deputy's denial of benefits. In resolving whether the accident "arose out of and in the course of claimant's employment," the commission considered whether Keister "fell within any of the exceptions to the 'going [or] coming' rule and whether he was performing any duty on his employer's behalf at the time of his injury." Contrary to the deputy's findings, the commission held that Keister "was not traveling to or from his place of employment, and that this is not a 'going and coming' case." Therefore, the commission found that Keister was in the course of his employment during his workday when he was injured. This decision was based upon the finding that Keister's workday was not finished at the time of the accident; he had to return to the Richmond office from Norfolk (where he was engaged in company business) and pick up his airline ticket for an early flight the next day which involved company business. The commission explained:
In accordance with that finding, the commission held it irrelevant that Keister was not paid mileage and expenses while traveling in his own automobile or that he was paid by commission.
It was not necessary that he [Keister] be charged with some duty while traveling from Richmond to Norfolk and back, as the travel was necessary in connection with the work to be performed on the employer's behalf in Norfolk. His travel, therefore, was incidental to his employment.
On appellate review, the Court will "construe the evidence in the light most favorable to the prevailing party [below]."Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). "Although the findings of the Industrial Commission [now the Workers' Compensation Commission], if based on credible evidence, are conclusive and binding on us, the Commission's findings of fact are not binding upon us when there is no credible evidence to support them. The question of the sufficiency of the evidence then becomes one of law." Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986) (citation omitted). "Where reasonable inferences may be drawn from the evidence in support of the commission's factual findings, they will not be disturbed by this Court on appeal." Hawks v. Henrico County School Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988) (citing Board of Supervisors of Henrico County v. Taylor, 1 Va. App. 425, 430-31, 339 S.E.2d 565, 568 (1986)). "A finding by 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." Ablola v. Holland Road Auto Center, Ltd., 11 Va. App. 181, 183, 397 S.E.2d 541, 542 (1990) (citation omitted).
"In order to recover compensation for a work-related injury under the Workers' Compensation Act, one must satisfy the requirements of Code § 65.1-7 [now § 65.2-101] which prescribe the nature of compensable injuries. Compensation is provided for injuries which: (1) are caused by accident; (2) arise out of the employment; and (3) occur in the course of employment."Hill City Trucking, Inc. v. Christian, 238 Va. 735, 738, 385 S.E.2d 377, 379 (1989). "The Act should be liberally construed in harmony with its humane purpose." Barnett v. D.L. Bromwell, Inc., 6 Va. App. 30, 34, 366 S.E.2d 271, 272 (1988) (en banc).
The concepts of arising "out of" and arising "in the course of employment" are separate and distinct, and proof of both is essential in order to recover under the Act. County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). "The phrase arising 'in the course of' refers to the time, place, and circumstances under which the accident occurred. The phrase arising 'out of' refers to the origin or cause of the injury." Id. "A 'critical link' must exist between the conditions of the workplace and the injury in order for the injury to qualify as 'arising out of' the employment."Pinkerton's, Inc. v. Helmes, 242 Va. 378, 380, 410 S.E.2d 646, 647 (1991).
Of the two components of the almost-universal coverage formula — "arising out of and in the course of" employment — the "arising out of" test is primarily concerned with causal connection. Most courts [today] . . . [require] a showing merely that the risk, even if common to the public, was actually a risk of this employment.
1 Arthur Larson, The Law of Worker's Compensation § 6.00, at 3-1 (1990).
An injury "arises out of" the employment
"'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 . . . . [I]t excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. . . . It need not have been foreseen or expected, but after the event it must appear to have its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.'"
Richmond Memorial Hosp. v. Crane, 222 Va. 283, 285, 278 S.E.2d 877, 878-79 (1981) (quoting Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938)).
[Virginia has] long recognized the general principle . . . [that] employees whose duties of employment require their presence or travel upon the public streets . . . are covered from hazards incident to that presence or travel by workers' compensation. . . . In such cases, once commonly referred to as 'street cases,' we employ the 'actual risk' test to the determination of whether the injury arose 'out of' the employment.
Sentara Leigh Hosp. v. Nichols, 13 Va. App. 630, 634, 414 S.E.2d 426, 428 (1992) (en banc) (citations omitted).
Furthermore, there is credible evidence in the record from which the commission could have properly found Keister was in the course of employment when the accident occurred. He was returning to Richmond after concluding his employer's out-of-town business; he made a number of phone calls to the Richmond office and to a Georgia town in which a business-related manufacturer is located, the last call occurring barely more than an hour before the accident. The employer's representatives testified that Keister was required to travel out-of-town to service clients, that Keister had an early flight to catch the next day involving out-of-town business and that Keister's airline ticket was still in the office on the day of the accident. There was testimony that Keister had no set hours of work, his schedule being flexible. In the light most favorable to Keister, and based on credible evidence and reasonable inferences deduced therefrom, we cannot say that the commission erred in holding that Keister was in the course of employment at the time of the accident.
We are persuaded by the evidence that Keister's injury was caused by an accident associated with a risk connected with his employment as a traveling salesperson. The road conditions were "fine" and there were no cars seen near Keister's vehicle prior to the accident. Keister's automobile veered off the highway without being struck and without Keister applying his brakes to avoid going into the ditch and hitting the guardrail.
Virginia, following the majority rule, has adopted what is known as the "actual risk test," under which, in the words of [Professor] Larson, "it is immaterial even whether the degree of exposure is increased, if in fact the employment subjected the employee to the hazards of the street, whether continuously or infrequently."
Immer Co. v. Brosnahan, 207 Va. 720, 725, 152 S.E.2d 254, 257 (1967) (quoting 1 Arthur Larson, The Law of Worker's Compensation § 9.10, at 75 (1964)); see also Southland Corp. v. Parson, 1 Va. App. 281, 284-87, 338 S.E.2d 162, 163-65 (1985) (discussing actual risk test and street cases).
We find that this case is controlled by the principle enunciated in Marketing Profiles, Inc. v. Hill, ___ Va. App. ___, ___ S.E.2d ___ (1993) (en banc). In Marketing Profiles, Hill's employment required that he travel in his personal car from Richmond to Milford, Delaware, to take photographs at a church. When Hill completed his assignment, he left a message that he was leaving Milford to return to Richmond. While driving in Maryland, he had an accident. He was unable to remember the period between three weeks and four weeks before and after the accident. Based upon these facts, we found:
The evidence proved that Hill's injury occurred "in the course of the employment" because at the time the accident occurred Hill was on his employer's mission. Credible evidence in the record proved that Hill's injury occurred while he was returning to Richmond from the photography assignment. That assignment was an integral part of his employment duties. He was injured on a highway that was the shortest and most direct route between his employer's headquarters and the place where he performed his assigned duties.
Id. at ___, ___ S.E.2d at ___.
Pinkerton's, Inc. v. Helmes, 242 Va. 378, 410 S.E.2d 646 (1991), a case heavily relied on by appellant, is distinguishable from this case. In Pinkerton's, the claimant, leaving work, drove down a private mountain road toward the public highway; later, she was found semi-conscious in her wrecked vehicle which had run off the road. Due to brain injury, she had no recollection as to what caused the accident. There were no witnesses to the accident, and the cause of the accident was unexplained by any circumstantial evidence. While the claimant would have fit within an exception to the going and coming rule, the Virginia Supreme Court held that, under the above-described circumstances, the cause of the accident was unexplained and refused to allow a presumption that the injury arose out of the employment as has been permitted in death cases. Here, there is evidence as to how Keister's accident occurred. An eyewitness to the accident testified to all the circumstances. Keister ran off the road without being struck by another car and while he was alone in his vehicle. The road conditions were good, and it is unquestionable that the accident arose out of an actual risk of employment which required Keister's presence upon the streets as a traveling salesperson. See Nichols, 13 Va. App. at 634, 414 S.E.2d at 428. Keister's employment as a traveling salesperson required his presence on the road where he was subject to risks associated with that presence on the highway. He was returning to Richmond from a Norfolk business trip by the most direct route, and there was no deviation from his mission.
For the reasons stated above, we affirm the commission's award to Keister.
Affirmed.