Stratford, etc. v. Phillip Alan Sharp

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Overton
Argued at Alexandria, Virginia
STRATFORD & MONTICELLO SQUARE APARTMENTS AND
STATE FARM FIRE AND CASUALTY COMPANY
v. Record No. 2142-95-4 MEMORANDUM OPINION * BY
JUDGE NELSON T. OVERTON
PHILLIP ALAN SHARP APRIL 2, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
John M. Poma (Midkiff & Hiner, on briefs),
for appellants.
Kathleen G. Walsh (Ashcraft & Gerel, on
brief), for appellee.
Appealing from a decision by the Workers' Compensation
Commission, Stratford & Monticello Square Apartments and its
insurer (collectively "employer") contend that employee Phillip
Sharp's injury arose neither out of nor in the course of his
employment. We disagree with this contention, and we affirm the
commission's award of benefits.
Sharp was employed as a painter by Stratford & Monticello
Square Apartments, normally working hours between 7:30 a.m. to 4
p.m. "Not often but occasionally," Sharp's employer asked him to
do tasks outside of his normal working day. These tasks included
running off loiterers and homeless people, responding to a stove
fire, and checking vacant apartments for trespassers. He
received all of his orders from the resident manager, Elizabeth
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Dulin, or her son.
On the evening of December 7, 1993, at approximately 7:00,
Sharp received a call from Dulin, who asked him to come help her
at her office. When Sharp arrived at Dulin's office, he found
her dizzy with an extremely elevated blood pressure. He called
the rescue squad, who advised upon arrival that Dulin should go
to the hospital. They placed her on a gurney, and Sharp helped
them move the gurney out of the apartment and down the stairs.
At the ambulance, Sharp was told to lift and to pull a lever
underneath. As he pulled the lever he felt a sharp pain in his
shoulder. He was later diagnosed as having torn his rotator cuff
from this incident.
The full commission awarded Sharp benefits, finding that his
injury by accident arose out of and in the course of his
employment. Although Sharp was not instructed directly by his
employer to help move the stretcher, his actions were part of the
same transaction in which his employer summoned him to her
office.
To receive compensation for an injury by accident under the
Workers' Compensation Act, an employee must show the injury arose
both out of and in the course of the employment. Code
§ 65.2-101. "The phrases arising 'out of' and arising 'in the
course of' are separate and distinct." County of Chesterfield v.
Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). Arising
"out of" refers to the origin or cause of the injury, while
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arising "in the course of" refers to the time, place, and
circumstances under which the accident occurred. Id. The two
elements must each be proven, although frequently proof of one
will incidentally tend to establish the other. Virginia
Polytechnic Inst. v. Wood, 5 Va. App. 72, 75, 360 S.E.2d 376, 378
(1987).
An injury arises out of the employment if it 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. VPI, 5 Va. App. at 75, 360 S.E.2d at 378; Conner
v. Bragg, 203 Va. 204, 208-09, 123 S.E.2d 393, 397 (1962). Some
causal connection must exist between the employee's injury and
the conditions under which the employer requires the work to be
performed. Carr v. City of Norfolk, 15 Va. App. 266, 269, 422
S.E.2d 417, 418 (1992). This determination rests on the
particular facts of a case. Id.
The facts in this case show that Sharp was required to
perform a myriad of jobs in his position at the apartment
complex. Sharp did many varied tasks as Dulin directed him to
do. On the night in question, Dulin asked Sharp to come to her
office and assist her. In light of his past duties, Sharp's
reaction to her call was consistent with the terms of his
employment and the subsequent events arose out of his employment.
"[A]n accident occurs in the 'course of employment' when it
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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." Thore v.
Chesterfield County Bd. of Supervisors, 10 Va. App. 327, 331, 391
S.E.2d 882, 885 (1990) (quoting Conner, 203 Va. at 208, 123
S.E.2d at 396). The employee must show "an unbroken course
beginning with work and ending with injury under such
circumstances that the beginning and the end are connected parts
of a single work-related incident." Graybeal v. Montgomery
County, 216 Va. 77, 80, 216 S.E.2d 52, 54 (1975). The injury may
occur after the employee's actual employment labors are
completed. Kim v. Sportswear, 10 Va. App. 460, 464, 393 S.E.2d
418, 421 (1990); see Thore, 10 Va. App. at 331, 391 S.E.2d at
885.
Sharp responded to his employer's request by walking to her
office to determine what job she needed done. At that point and
continuing, the tasks Sharp performed were either required by his
employment or were reasonably incidental thereto. As such, his
injury arose in the course of his employment.
The commission's determination that Sharp's injury by
accident arose out of and in the course of his employment is
supported by credible evidence.
Affirmed.
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