Bertha L. Fennell, Widow v. Tarmac Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
BERTHA L. FENNELL, WIDOW OF
JAMES MATHEW FENNELL (DECEASED)
MEMORANDUM OPINION*
v. Record No. 2711-01-1 PER CURIAM
FEBRUARY 12, 2002
TARMAC VIRGINIA AND
INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Thomas F. Hennessy; Thomas F. Hennessy,
P.C., on brief), for appellant.
(Ralph L. Whitt, Jr.; Michael P. Del Bueno;
Whitt & Associates, on brief), for appellees.
Bertha L. Fennell ("claimant"), widow of James Mathew
Fennell ("the decedent"), contends the Workers' Compensation
Commission erred in finding that (1) she failed to prove that
the decedent's death was causally related to a work-related
accident occurring on July 21, 1998; (2) the applicable statute
of limitations accrued as of July 21, 1998 and, therefore, the
claim was time-barred; and (3) the death presumption did not
apply to this case. Upon reviewing the record and the parties'
briefs, we conclude that this appeal is without merit.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Accordingly, we summarily affirm the commission's decision.
Rule 5A:27.
Background
On October 30, 1998, Frank Schmitz, the decedent's
supervisor, found the decedent, a truck mechanic, dead at his
workplace. On the morning of October 30, 1998, Schmitz received
a report that the decedent had not reported for work although
his pickup truck had been seen. Upon investigating further,
Schmitz found the decedent's body in a chair in the office area
with a pool of blood around the base of the chair. Schmitz saw
a spot of blood that had been wiped up at the entrance to the
tool room, but there was no trail of blood, no evidence of an
accident, and no indication of foul play. The decedent was
holding a piece of gauze in his right hand. He was wearing a
moccasin on his right foot and a work boot on his left foot.
These facts indicated to Schmitz that the decedent had been
getting ready to leave work the evening of October 29, 1998,
because he always changed his shoes before leaving.
Schmitz knew that claimant had sustained an injury at work
on July 21, 1998, but he did not know of any ongoing problems,
medical treatment, or lost time from work.
A July 21, 1998 report from Maryview Hospital indicated
that the decedent had a history of varicose veins and that he
struck his left leg with a socket wrench, causing immediate,
profuse bleeding. An examination revealed a four-centimeter
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puncture wound, which was sutured. On August 7, 1998, the
sutures were removed. The record contained no further
indication of medical treatment.
The autopsy report listed the decedent's cause of death as
"Exsanguination due to erosion of an arteriovenous malformation
of the left lateral leg." The medical examiner observed
arteriovenous malformations extending along the left lateral
calf for a length of five inches and at the medial left knee.
The death certificate listed the same cause of death as the
autopsy report.
I. and III.
A claimant must prove that an injury arose out of and in
the course of his employment to qualify for any benefits under
the Workers' Compensation Act. Pinkerton's, Inc. v. Helmes, 242
Va. 378, 380, 410 S.E.2d 646, 647 (1991). "Whether an injury
arises out of the employment is a mixed question of law and fact
and is reviewable by the appellate court." Plumb Rite Plumbing
Serv. v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305, 305
(1989).
The claimant argues she proved that the decedent's death
was caused by his July 21, 1998 accident, and in the
alternative, that the commission should have accorded her a
presumption that the decedent's death arose out of his
employment based on the death presumption.
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In Sullivan v. Suffolk Peanut Co., 171 Va. 439, 199 S.E.
504 (1938), the Supreme Court set forth the requirements for
applying the death presumption as follows:
Where an employee is found dead as a
result of an accident at his place of work
or nearby, where his duties may have called
him during the hours of his work, and there
is no evidence offered to show what caused
the death or to show that he was engaged in
his master's business at the time, the court
will indulge the presumption that the
relation of master and servant existed at
the time of the accident, and that it arose
out of and in the course of his employment.
Id. at 444, 199 S.E. at 506.
The commission found that the evidence failed to prove that
the decedent's death resulted from an accident. In addition,
the commission found that the death presumption did not apply in
this case.
Here, unlike Sullivan, no evidence established that the
decedent was found dead as the result of an accident at his
place of work or nearby at a place where his duties may have
called him. The fact that the decedent was found dead in his
chair at work did not prove that his death occurred as the
result of an accident. The only evidence concerning the cause
of the decedent's death was the autopsy report and death
certificate, which showed that his death resulted from
"Exsanguination due to erosion of an arteriovenous malformation
of the left lateral leg."
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Based upon this record, the commission did not err in
finding that the death presumption did not apply and that
claimant failed to prove that the decedent's death resulted from
an injury by accident arising out of his employment.
II.
Because our rulings on the first and third questions
presented by claimant dispose of this appeal, we need not
address the statute of limitations issue.
For the reasons stated, we affirm the commission's
decision.
Affirmed.
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