Louisa Public Schools v. Grover L. Bradley ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia
LOUISA COUNTY PUBLIC SCHOOLS
AND TRIGON ADMINISTRATORS
MEMORANDUM OPINION * BY
v. Record No. 3024-95-2 JUDGE JAMES W. BENTON, JR.
JULY 16, 1996
GROVER L. BRADLEY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Patricia C. Karppi (J. Brian Jackson;
McGuire, Woods, Battle & Boothe, L.L.P., on
brief), for appellants.
No brief or argument for appellee.
Louisa County Public Schools appeals from an award of
temporary total disability benefits to its employee, Grover L.
Bradley. The employer contends that the Workers' Compensation
Commission erred in ruling that the injury arose out of Bradley's
employment. We hold that the commission properly applied the
holding in Roberson v. Whetsell, 21 Va. App. 268, 463 S.E.2d 681
(1995), and affirm the award.
I.
In accordance with the usual standard of reviewing the
commission's decision, we view the evidence in the light most
favorable to Bradley, the party prevailing below. R.G. Moore
Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). So viewed, the evidence proved that Bradley was -
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
performing his duties as a custodian at the Trevillian Elementary
School in Louisa County on March 2, 1995. At 6:00 p.m., when
Bradley was discarding trash from the school into an outside
trash bin, he heard a gunshot. A bullet ricocheted off the trash
dumpster and hit Bradley in the left shoulder. As Bradley turned
to run for shelter, he felt pain in his groin area. The evidence
proved that he suffered a direct inguinal hernia.
Bradley testified that the school is in a rural area and
that he never saw the shooter. He also testified that in the
past school officials have "tucked the kids in the school house"
and called police because deer hunters were shooting close to the
school. Although he could not recall that any school employees
had previously been hit by a bullet on school grounds, he
testified that the school building had been hit by bullets. He
further testified that people are "always shooting around there."
II.
"Whether an injury arises out of the employment is a mixed
question of law and fact." Plumb Rite Plumbing Service v.
Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305, 305 (1989).
An accident arises out of the employment
if a causal connection is established between
the employee's injury and the conditions
under which the employer required the work to
be performed. The causative danger must be
peculiar to the work and not common to the
neighborhood.
Our inquiry is not ended simply because
the general public is also exposed to the
risk. As the Supreme Court stated . . . ,
"[t]he mere fact that the hazard is one to
which the general public is likewise exposed
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is not . . . conclusive against the existence
of such causal relationship. The requisite
nexus in an assault case is supplied if there
is 'a showing that the probability of assault
was augmented either because of the peculiar
character of the claimant's job or because of
the special liability to assault associated
with the environment in which he must work.'"
Jobs often held to pose a special risk of
assault are those that involve working in
. . . dangerous areas.
Roberson, 21 Va. App. at 271, 463 S.E.2d at 682 (citations
omitted).
The principle is well established that "[f]actual findings
by the commission that are supported by credible evidence are
conclusive and binding upon this Court on appeal." Southern Iron
Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34
(1993). Relying upon Bradley's unrebutted testimony, the
commission found "that gunshots fired by hunters are frequent in
the area of the school[,] [t]he police have been called to clear
away hunters, the school building has been hit, and children have
been kept inside the building." No claim is made that Bradley's
testimony was not credible.
The commission's findings and the evidence that support
those findings are sufficient to establish that Bradley's
injuries arose out of his employment. See R&T Investments Ltd.,
228 Va. 249, 253-54, 321 S.E.2d 287, 289-90 (1984); Roberson, 21
Va. App. at 272-73, 463 S.E.2d at 683. The evidence proved that
Bradley's risk of injury from gunfire increased due to his
employment. Thus, for the reasons discussed in Roberson, we find
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the employer's reliance upon Hill City Trucking, Inc. v.
Christian, 238 Va. 735, 385 S.E.2d 377 (1989); Metcalf v. A.M.
Express Moving Systems, Inc., 230 Va. 464, 339 S.E.2d 177 (1986);
and Baggett and Dick Meador Trucking Cos. v. Dillon, 219 Va. 633,
248 S.E.2d 819 (1978), to be unpersuasive. See 21 Va. App. at
273-74, 382 S.E.2d at 684.
Therefore, we affirm the commission's award of temporary
total disability benefits and reasonable costs of medical
treatment.
Affirmed.
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