PYA/Monarch v. Thomas Edward Harris

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Argued at Salem, Virginia
PYA/MONARCH AND RELIANCE
INSURANCE COMPANY OPINION BY
JUDGE JOHANNA L. FITZPATRICK
v. Record No. 0454-95-3 APRIL 2, 1996
THOMAS EDWARD HARRIS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
M. Lanier Woodrum (Wooten & Hart, P.C., on
briefs), for appellants.
Berrell F. Shrader (Attorneys and Counselors
at Law of Virginia, P.C., on brief), for
appellee.
In this workers' compensation case, PYA/Monarch and its
insurer, Reliance Insurance Company (collectively referred to as
employer), appeal the commission's decision awarding benefits to
Thomas Edward Harris (claimant). Employer argues that the
commission erred in: (1) finding that claimant's injury arose
out of his employment by improperly extending the increased
effects analysis used in idiopathic fall cases to an unexplained
accident, and (2) determining that claimant's injury caused his
disability. We hold that claimant's injury was a noncompensable,
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unexplained accident and reverse the commission's decision.
Claimant drove a truck for employer. On March 2, 1994,
claimant encountered freezing rain and ice while making his
1
Because we reverse on the "arising out of" issue, we do not
address the other issue raised by employer.
deliveries. His last delivery stop was the Mountainview Market
in Ironto, Virginia. Claimant backed his truck up to the store,
set the brakes, and entered the location code into the truck's
computer. Claimant then stood up, opened the truck door, and
reached for the "grab bar" on the outside of the truck's cab.
During his deposition, claimant testified: "I remember [reaching
for the grab bar,] and that's all I remember. And at that point,
you know I don't know what happened from that point on. At some
time later I remember waking up, I'm laying on my left-hand side,
I've got my left arm underneath of my head, and I'm on the
pavement beside the truck." (Emphasis added). Claimant also
stated that his wife thought "somebody coldcocked [him] when [he]
got out of the truck." When claimant awoke, he could not
remember where he was, who he was, or any details of what had
happened. He had a knot on his head, and his neck was hurting
and sore. No one witnessed claimant's fall.
At the hearing on his application for benefits, claimant
testified that the driver's seat in the truck's cab is located
six-and-one-half to seven feet from the ground. To enter the
cab, claimant had to go up "two rungs on the ladder and then one
on the step there going through the door." On the date of
claimant's fall, the surface of the truck's cab was covered with
ice.
After his fall, claimant went to the emergency room at
Lewis-Gale Hospital. Dr. T. Gary Parrish examined claimant and
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diagnosed his condition as "contusion of the head, possible
concussion, loss of consciousness . . . possible seizure type
activity." Dr. Edward A. Waybright, a neurologist, also examined
claimant and reported that the cause of claimant's fall was
"unclear"; that claimant had "no history of prior head injury,
seizure, or syncope"; and that tests "had not disclosed [the]
specific cause of his fall." Dr. Waybright admitted claimant for
observation and restricted his driving for six months because of
his loss of consciousness. In an August 30, 1994 letter, Dr.
Waybright noted that "[t]he evaluation done did rule out any
evidence of seizure activity," and that claimant's fall could
have been caused by "a cardiac irregularity, decrease of glucose
in the blood, dizziness, or slipping while he exited the truck."
The commission was "persuaded that the fall was precipitated
by the design or icy condition of the cab or both." However, the
commission made no specific finding regarding the cause of
claimant's fall because it found that "the elevated height of the
trailer cab constituted an added risk of the employment that
caused or contributed to the claimant's injuries and loss of
consciousness." Additionally, the commission determined that the
six-month restriction on claimant's driving was "a very real
medical restriction that the claimant could not medically or
legally ignore, and which was attributable to his work accident,"
and that employer was liable for claimant's disability.
Employer argues that claimant's fall was a noncompensable,
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unexplained accident and that no credible evidence supports the
commission's finding that the fall was caused by the design and
icy condition of the truck cab. Additionally, employer asserts
that the commission erred in applying the increased effects
analysis used in idiopathic fall cases to an unexplained fall
situation. We agree.
"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." Pinkerton's, Inc. v.
Helmes, 242 Va. 378, 380, 410 S.E.2d 646, 647 (1991). "The
concepts 'arising out of' and 'in the course of' employment are
not synonymous and both conditions must be proved before
compensation will be awarded." Marketing Profiles, Inc. v. Hill,
17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993) (en banc). The
claimant must prove these elements by a preponderance of the
evidence. Id.
In this case, employer does not dispute that claimant
suffered an injury by accident occurring "in the course of"
employment, but asserts that claimant failed to prove that his
fall "arose out of" his employment. "The commission's decision
that an accident arises out of the employment involves a mixed
question of law and fact and is thus reviewable on appeal."
Southside Virginia Training Ctr./Commonwealth of Virginia v.
Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995).
"All risks causing injury to a claimant can be brought
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within three categories: risks distinctly associated with the
employment, risks personal to the claimant, and 'neutral' risks--
i.e., risks having no particular employment or personal
character." 1 Arthur Larson, The Law of Workmen's Compensation
§ 7.00, at 3-12 (1990). The category of risk in a particular
case determines the analysis used in examining whether a
claimant's injury "arose out of" his or her employment.
In cases in which the claimant alleges an injury by accident
resulting from an employment-related risk, "[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, 242 Va. at 380, 410 S.E.2d at 647. In
proving the "arising out of" prong of the compensability test, a
claimant has the burden of showing that "'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.'" Marketing
Profiles, 17 Va. App. at 434, 437 S.E.2d at 729 (quoting Bradshaw
v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938)).
"[I]f the injury can be seen to have followed
as a natural incident of the work and to have
been contemplated by a reasonable person
familiar with the whole situation as a result
of the exposure occasioned by the nature of
the employment, then it arises 'out of' the
employment. But [the arising out of test]
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 workmen would have been equally
exposed apart from the employment."
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Grove v. Allied Signal, Inc., 15 Va. App. 17, 19-20, 421 S.E.2d
32, 34 (1992) (quoting R & T Investments, Ltd. v. Johns, 228 Va.
249, 252-53, 321 S.E.2d 287, 289 (1984)).
In a personal risk or idiopathic case, the claimant's injury
is one "caused by a preexisting personal disease of the
employee." Southland Corp. v. Parson, 1 Va. App. 281, 283, 338
S.E.2d 162, 163 (1985). In Virginia, the general rule regarding
idiopathic falls is that the claimant must prove that the injury
was not caused by some idiopathic condition. See Winegar v.
International Telephone & Telegraph, 1 Va. App. 260, 263, 337
S.E.2d 760, 761 (1985). "When an employee's injuries result from
an idiopathic condition and no other factors intervene or operate
to cause or contribute to the injuries sustained as a result of
the idiopathic condition, no award shall be made." Virginia
Dep't of Transp. v. Mosebrook, 13 Va. App. 536, 538, 413 S.E.2d
350, 351-52 (1992). However, "'the effects of [an idiopathic]
fall are compensable if the employment places the employee in a
position increasing the dangerous effects of such a fall, such as
on a height, near machinery or sharp corners, or in a moving
vehicle.'" Southland Corp., 1 Va. App. at 284-85, 338 S.E.2d at
164 (citation omitted). Thus, in an idiopathic fall situation,
the well-established increased risk doctrine applies, and no
recovery is allowed unless the claimant proves that a condition
of the employment increased the effects of his or her fall.
Finally, an unexplained fall or accident is encompassed in
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the "neutral risk" category. An unexplained injury does not
result from any employment-related condition or from any
idiopathic condition of the claimant. Memorial Hospital of
Martinsville v. Hairston, 2 Va. App. 677, 682, 347 S.E.2d 527,
529 (1986). In Virginia, when an unexplained injury by accident
in the course of employment results in the death of an employee,
a presumption arises that the injury "arose out of" the
employment. See id. at 680-81, 347 S.E.2d at 528 (emphasis
added) (citing Southern Motor Lines v. Alvis, 200 Va. 168,
171-72, 104 S.E.2d 735, 738 (1958)). However, the Virginia
Supreme Court has specifically refused to extend the unexplained
death presumption to the unexplained accident context.
Pinkerton's, 242 Va. at 380-81, 410 S.E.2d at 648.
In Pinkerton's, the Court explained:
Every unexplained accident, by
definition, means that no one can relate how
the accident happened. The reason for the
inability to recall may be based on a
preexisting or resulting, temporary or
permanent, physical condition of the
claimant, as well as mere inattention at the
moment of the accident. If mere inability to
recall the events is the rationale for
application of the presumption, then it would
also be logical that the claimant should be
entitled to the benefit of the presumption in
any of these circumstances, or whenever there
is an unexplained accident.
Id. at 381, 410 S.E.2d at 648. The Supreme Court concluded that
"[b]roadening the use of the [unexplained death] presumption to
such an extent [would] significantly alter[] the jurisprudence of
workers' compensation law. This change . . . is more properly a
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matter of policy, a prerogative of the legislative branch of
government." Id. Professor Larson has noted that, "[i]n a pure
unexplained-fall case, there is no way in which an award can be
justified as a matter of causation theory except by a recognition
that [positional risk] but-for reasoning satisfies the 'arising'
requirement." 1 Larson, supra, § 10.31(a), at 3-94. However,
"Virginia has adopted an 'actual risk' test and has rejected the
'positional risk' test followed by other jurisdictions." Marion
Correctional Treatment Ctr. v. Henderson, 20 Va. App. 477, 480,
458 S.E.2d 301, 303 (1995). Thus, in an unexplained fall case in
Virginia, a claimant must prove by a preponderance of the
evidence that the fall "arose out of" the employment by
establishing a causal connection between his or her employment
and the fall. 2
In the instant case, claimant's fall was an unexplained
2
In addressing the "arising out of" requirement in unexplained
fall cases, courts have adopted three approaches. First, some
courts require the claimant to show a causal connection between
the injury and his or her employment. Next, other courts allow an
inference that the claimant's fall arose out of the employment if
the claimant can show that no idiopathic condition caused the
fall. Finally, the majority of courts use the positional risk
doctrine to allow recovery in unexplained fall cases. Under the
positional risk doctrine, the claimant is not required to exclude
idiopathic causes. If the claimant can establish that the injury
occurred "in the course of" his or her employment, a presumption
arises that the injury also "arose out of" the employment. See
Circle K Store No. 1131 v. Industrial Comm'n, 796 P.2d 893, 897-98
(Ariz. 1990) (en banc) (discussing the three approaches used in
unexplained fall cases and adopting the positional risk doctrine).
In Pinkerton's, the Virginia Supreme Court adopted the first
approach and placed the burden on the claimant to show a causal
connection between her accident and her employment. 242 Va. at
381, 410 S.E.2d at 648.
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accident. The commission was "persuaded" that the icy condition
and design of the truck cab caused claimant's fall, but no
credible evidence supports this finding. The mere fact that the
truck cab was icy or that the cab was seven feet from the ground
is insufficient to establish the basis for the fall. Claimant
could not recall any details of the accident, and the last thing
he remembered was reaching for the grab bar on the side of the
truck cab. He never testified that he slipped or tripped on one
of the ladder rungs, or that he lost his grip on the grab bar.
Dr. Waybright's speculation that claimant's fall could have been
caused by either "a cardiac irregularity, decrease of glucose in
the blood, dizziness, or slipping while he exited the truck" does
not explain the nature of the fall. Thus, claimant failed to
prove the requisite causal connection between his employment and
his fall.
Additionally, in analyzing whether claimant's fall arose out
of his employment, the commission improperly extended the
increased effects analysis properly used in idiopathic fall cases
to an unexplained fall situation. We are bound by the rationale
of Pinkerton's that an unexplained fall is not compensable "[i]n
the absence of a showing that the [injury] 'arose out of' the
employment." 242 Va. at 381, 410 S.E.2d at 648. In Southland
Corp., we recognized the distinction between unexplained falls
and idiopathic falls, and did "not consider the consequences of
an unexplained fall by an employee." 1 Va. App. at 284, 338
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S.E.2d at 163.
No credible evidence established that claimant's fall was
caused by an idiopathic condition. The medical evidence ruled
out the possibility that a seizure caused claimant's fall.
Although Dr. Waybright indicated several other idiopathic
conditions as potential causes of claimant's fall, he also
considered it equally possible that claimant slipped when
climbing down from the driver's seat of the truck cab. Thus, the
increased risk analysis used in idiopathic fall cases was
inappropriate in the instant case because claimant's fall was
clearly an unexplained accident controlled by the Supreme Court's
rationale in Pinkerton's.
Because claimant is not entitled to a presumption that his
fall arose out of his employment, and because claimant failed to
prove the requisite causal connection between his employment and
his accident, the commission erred in awarding claimant
compensation. Accordingly, the decision of the commission is
reversed.
Reversed.
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