Lee Roy Holmes v. R. Kenneth Weeks Engineers

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
LEE ROY HOLMES
v. Record No. 2402-94-1 MEMORANDUM OPINION *
PER CURIAM
R. KENNETH WEEKS ENGINEERS JUNE 6, 1995
AND
CONTINENTAL CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Stephen M. Smith, on brief), for appellant.
(William C. Walker; Donna White Kearney; Taylor &
Walker, on brief), for appellees.
The sole issue on this appeal is whether Lee Roy Holmes
(claimant) sustained an injury by accident arising out of his
employment on June 14, 1993. Upon reviewing the record and the
briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the commission's
decision. Rule 5A:27.
On June 14, 1993, claimant, a surveyor who worked for
employer, was sitting on a stool between the sidewalk and the
street in Virginia Beach, Virginia, sketching a topographic
survey, when he was suddenly attacked by a pack of dogs. The
parties stipulated that claimant was in the course of his
employment at the time of the attack. At the time of the attack,
claimant was wearing khaki pants, a summer shirt, a red and white
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
blazer, and a traffic vest. Claimant testified that he regularly
came in contact with dogs both in his work and outside of his
work. There was some evidence that the dogs may have escaped
from a house near where claimant was working.
The commission denied compensation to claimant on the ground
that his evidence failed to establish that the dog attack was a
result of his work, and that he was not at a higher risk of being
bitten by a dog than the general public. The commission held
"[t]hat his work caused him to be at the location without other
evidence of a connection between the employment and the attack is
not sufficient to qualify for benefits under the Virginia Act."
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. City of
Richmond v. Braxton, 230 Va. 161, 163-64, 335 S.E.2d 259, 261
(1985). "Virginia recognizes the 'actual risk' test which
requires that the employment subject the employee to the
particular danger that brought about his or her injury." Lipsey
v. Case, 248 Va. 59, 61, 445 S.E.2d 105, 106-07 (1994) (citations
omitted). Thus, 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.'" Bradshaw v. Aronovitch, 170 Va. 329, 335,
196 S.E. 684, 686 (1938) (citation omitted).
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Applying these principles to this case, we find that the
commission did not err in finding that claimant's evidence did
not prove that he sustained an injury by accident that arose out
of his employment. There was nothing about the character or
nature of his work as a surveyor that "reasonably could have
exposed or subjected [him] to the danger of being bitten by . . .
a pet dog." See Lipsey, 248 Va. at 61, 445 S.E.2d at 107. There
was no evidence of a causal connection between the conditions of
claimant's required work and his injury.
Accordingly, we affirm the commission's decision.
Affirmed.
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