Commercial Courier Express v. David Cairns ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Senior Judge Hodges
Argued at Alexandria, Virginia
COMMERCIAL COURIER EXPRESS, INC.
and MICHIGAN MUTUAL INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1973-96-4 JUDGE RICHARD S. BRAY
MARCH 25, 1997
DAVID CAIRNS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Cecil H. Creasey, Jr. (Sands, Anderson,
Marks & Miller, on brief), for appellants.
No brief or argument for appellee.
Commercial Courier Express, Inc. and Michigan Mutual
Insurance Company (collectively employer) appeal a decision of
the Virginia Workers' Compensation Commission awarding benefits
to David Cairns (claimant) for certain accidental injuries. On
appeal, employer contends that the commission erroneously
concluded that the accident arose from claimant's employment and
implicitly found a causal relationship with claimant's "deep vein
thrombosis." While we agree that the injury arose from
employment, we remand the issue of causation for specific
adjudication by the commission.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Guided by well-established principles, we construe the
evidence in the light most favorable to the party prevailing
below, claimant in this instance. See Crisp v. Brown's Tysons
Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916
(1986). "If there is evidence, or reasonable inferences can be
drawn from the evidence, to support the Commission's findings,
they will not be disturbed on review, even though there is
evidence in the record to support a contrary finding." Morris v.
Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348
S.E.2d 876, 877 (1986); see Code § 65.2-706.
To prevail, claimant "must prove: (1) an injury by accident,
(2) arising out of and (3) in the course of his employment."
Kane Plumbing, Inc. v. Small, 7 Va. App. 132, 135, 371 S.E.2d
828, 830 (1988); see Code § 65.2-101. "The phrase arising 'in
the course of' refers to the time, place, and circumstances under
which the accident occurred," whereas "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). "[T]he
arising out of test excludes 'an injury which comes from a hazard
to which the employee would have been equally exposed apart from
the employment. The causative danger must be peculiar to the
work, incidental to the character of the business, and not
independent of the master-servant relationship.'" Id. at 183-84,
376 S.E.2d at 75 (quoting United Parcel Service v. Fetterman, 230
Va. 257, 258-59, 336 S.E.2d 892, 893 (1985)). Claimant must
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establish "that the conditions of the workplace or . . . some
significant work related exertion caused the injury." Plumb Rite
Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305,
306 (1989).
"The actual determination of causation is a factual finding
that will not be disturbed on appeal," if supported by credible
evidence. Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376
S.E.2d 814, 817 (1989); see Code § 65.2-706. However, whether an
injury arises out of employment is a mixed question of law and
fact reviewable upon appeal." See Park Oil v. Parham, 1 Va. App.
166, 168, 336 S.E.2d 531, 532 (1985).
Here, relying upon Marion Correctional Treatment Center v.
Henderson, 20 Va. App. 477, 458 S.E.2d 301 (1995), the commission
concluded that claimant's injury arose from employment. In
Henderson, a correctional officer, responsible for "[a]ll . . .
security and safety of the inmates and the other employees" at
the institution, determined that "tower officers" were "alert" by
routinely waving while he walked about the facility. Id. at 480,
458 S.E.2d at 303. Immediately prior to the accident, Henderson
had "acknowledged tower two," began to descend stairs, and
slipped on the third or fourth step while "observing tower one."
Id. at 479-80, 458 S.E.2d at 302-03. In affirming an award of
benefits, we noted that:
Observation of the guard towers was one of the security
functions of his employment. The way in which he
performed this aspect of his job increased his risk of
falling on this occasion and directly contributed to
cause his fall and injury. He would not have been
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equally exposed to the risk apart from his duty to
observe the guard towers and provide security at the
facility. [His] injury occurred because of the
performance of his job duties in a particular manner.
Therefore, the cause of the injury was not "unrelated
to any hazard common to the workplace."
Id. at 480-81, 458 S.E.2d at 303 (quoting Fetterman, 230 Va. at
259, 336 S.E.2d at 893) (citations omitted).
Similarly, claimant in this instance was not specifically
required to look for the truck while descending stairs, but was
clearly responsible for "[m]aintaining a fleet of 82 trucks[,]
taking care of [and] . . . supervising the drivers." Claimant
testified that he fell because he was "[t]rying to do [two work-
related] things at once, look out the window [for the driver] and
walk down the stairs." Thus, like Henderson, "[t]he way in which
[claimant] performed this aspect of his job increased his risk of
falling on this occasion and directly contributed to cause his
fall . . . . [His] injury occurred because of the performance of
his job duties in a particular manner." Id.
Accordingly, we affirm the commission's decision that the
accident arose from claimant's employment. However, because the
commission did not address employer's contention that the
evidence was insufficient to prove a causal relationship between
the accident and alleged injury, we remand for resolution of that
issue.
Affirmed in part and remanded in part.
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