Perry Lee Jones v. Mays Electric Company,Inc ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
PERRY LEE JONES
MEMORANDUM OPINION * BY
v. Record No. 2796-01-3 JUDGE ROSEMARIE ANNUNZIATA
SEPTEMBER 24, 2002
MAYS ELECTRIC COMPANY, INC. AND
UNITED CONTRACTORS OF VIRGINIA
GROUP SELF-INSURANCE ASSOCIATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Philip B. Baker (Sanzone & Baker, P.C., on
brief), for appellant.
Richard D. Lucas (Lucas Law Firm, on brief),
for appellees.
Perry Lee Jones appeals the decision of the Workers'
Compensation Commission denying him benefits for injuries
sustained on May 22, 2000. He contends that the commission erred
in finding he failed to prove his injury by accident occurred in
the course of his employment. For the reasons that follow, we
affirm.
Background
On appeal, we view the evidence in the light most favorable
to Mays Electric Company, Inc., the party prevailing before the
commission, together with all reasonable inferences that may be
*
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
drawn. See Great Eastern Resort Corp. v. Gordon, 31 Va. App.
608, 610, 525 S.E.2d 55, 56 (2000). In March 2000, Perry Lee
Jones was promoted to electrical foreman for Mays Electric
Company, Inc. ("Mays Electric") on its Cracker Barrel job site.
On May 22, 2000, after working his eight-hour shift at the site
that day, Jones returned at approximately 9:00 p.m. to
temporarily connect, or "temp," the outside lights and electrical
fans to a power source.
After he finished "temping" the lights and fans, Jones
noticed a wire hanging too close to a fan. While Jones used a
ladder to reach the wire, the ladder "skipped" and he fell on his
side. Jones fractured his femur and hip. He returned to work on
June 11, 2000 and resumed his position as foreman of the Cracker
Barrel job.
Company work rules provided that the workday began at
7:00 a.m. and ended at 3:30 p.m., unless otherwise authorized.
Any overtime work required authorization. No Mays Electric
employee had authorized Jones to work on the evening of May 22,
2000. Jones believed there was some flexibility in his schedule
because his position as foreman required him to "run the job in a
timely and orderly fashion [and] oversee the project basically."
According to Vince Mays, the owner, "everybody's expected to
leave at [3:30] and report the next day." Mays further stated he
did not know Jones planned to return to work on the night of the
accident and he did not authorize Jones' overtime, which is
"always approved [by him]." Mays testified, and Jones conceded,
that he could have completed the task at the end of his shift.
Mays stressed to his employees that they never work alone
- 2 -
because "if you do get hurt, there's nobody there to help you."
Specifically, he told Jones, "doing electrical work, [you] could
have been working on something and got shocked, etcetera, and
laid there and died." Jones admitted he should not have worked
alone at the site.
On this evidence, the deputy commissioner found that Jones
failed to prove by a preponderance of the evidence that his
injuries arose out of and in the course of his employment. The
full commission agreed and affirmed the decision of the deputy
commissioner.
Analysis
"To qualify for workers' compensation benefits, an
employee's injuries must result from an event 'arising out of'
and 'in the course of' the employment." Smithfield Packing Co.,
Inc. v. Carlton, 29 Va. App. 176, 180, 510 S.E.2d 740, 742 (1999)
(quoting Pinkerton's, Inc. v. Helmes, 242 Va. 378, 380, 410
S.E.2d 646, 647 (1991)). "Whether an injury arises out of and in
the course of employment involves a mixed question of law and
fact, which we review de novo on appeal." Blaustein v. Mitre
Corp., 36 Va. App. 344, 348, 550 S.E.2d 336, 338 (2001).
- 3 -
However, the findings of fact made by the commission are binding
upon us when supported by credible evidence. See Ablola v.
Holland Rd. Auto Center, Ltd., 11 Va. App. 181, 183, 397 S.E.2d
541, 542 (1990).
"[A]n accident arises out of . . . employment when it is
apparent to a rational mind, under all attending circumstances,
that a causal connection exists between the conditions under
which the work is required to be performed and the resulting
injury." Smithfield Packing, 29 Va. App. at 181, 510 S.E.2d at
742. An injury "occurs in the 'course of employment' when it
takes place within the period of employment, at a place where the
employee may be reasonably expected to be, and while he is
reasonably fulfilling the duties of his employment or is doing
something which is reasonably incidental thereto." Lucas v.
Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972) (citations
omitted).
The commission found as follows:
[T]he claimant was not in a place where he
was reasonably expected to be when he was
injured. The claimant's work hours were
7:00 a.m. to 3:30 p.m. No unauthorized
overtime was allowed, and no one was allowed
to be at the worksite [sic] alone. [Jones']
injury occurred at 9:30 at night. The
employer had no reason to expect the
claimant to go to the worksite [sic] to
"temp" the electrical fixtures at that hour
. . . . We therefore find that the injury
did not occur during the course of the
employment.
Credible evidence supports the commission's conclusion that
Mays Electric could not reasonably expect Jones to be at the work
- 4 -
site four hours after his shift ended. The workday at Mays
Electric is from 7:00 a.m. to 3:30 p.m. The work rules for Mays
Electric's employees clearly state that overtime is not permitted
without specific authorization and overtime generally occurs only
when the employees are behind on a project. In this case, no one
authorized Jones' return to the work site after hours, and the
job was on schedule. Additionally, Vince Mays noted that Jones
could have "temped" the lights and fan at the end of his shift,
during daylight with others present at the site. Nothing
required him to return to a deserted work site at night to
complete the task. Moreover, Vince Mays always stressed to his
employees that they not work alone, and Jones admitted he should
not have been on the site by himself. Therefore, Mays Electric
could not reasonably expect for Jones to have been on the work
site "temping" the lights and fans on the evening he incurred his
injuries.
Affirmed.
- 5 -