I.General Consideration.

Editor’s note.

Some of the cases below were decided under former § 65.1-1 or prior law.

History of Act. —

For a resume of the history, nature, scope and effect of the Workmen’s (now Workers’) Compensation Act, see Feitig v. Chalkley, 185 Va. 96 , 38 S.E.2d 73, 1946 Va. LEXIS 183 (1946).

Workmen’s (now Workers’) Compensation Act and amendments constitute one complete act. Commonwealth v. Granger, 188 Va. 502 , 50 S.E.2d 390, 1948 Va. LEXIS 184 (1948).

It is in aid of the Child Labor Law. —

Liability imposed upon the employer by the Workmen’s (now Workers’) Compensation Act is in aid of the Child Labor Law rather than opposed to it; infants, whether lawfully employed or not, are within the language and intent of the Act, and the remedy afforded by the Act is exclusive of all other remedies. Chalkley v. Nolde Bros., 184 Va. 553 , 35 S.E.2d 827, 1945 Va. LEXIS 176 (1945).

ERISA and state disability laws. —

Employee Retirement Income Security Act (ERISA) does not preempt Virginia’s workers’ compensation scheme requiring employers to provide security for the payment of occupational injury and illness benefits. Employers Resource Mgt. Co. v. James, 62 F.3d 627, 1995 U.S. App. LEXIS 22126 (4th Cir. 1995).

While a state may not require an employer to alter its Employee Retirement Income Security Act (ERISA) plan, it may force the employer to choose between providing disability benefits in a separately administered plan and including the state-mandated benefits in its ERISA plan. If the state is not satisfied that the ERISA plan comports with the requirements of its disability insurance law, it may compel the employer to maintain a separate plan that does comply. Employers Resource Mgt. Co. v. James, 62 F.3d 627, 1995 U.S. App. LEXIS 22126 (4th Cir. 1995).

Congress did not intend, at the same time it preserved the role of state disability laws, to make enforcement of those laws impossible. A state may require an employer to maintain a disability plan complying with state law as a separate administrative unit. Employers Resource Mgt. Co. v. James, 62 F.3d 627, 1995 U.S. App. LEXIS 22126 (4th Cir. 1995).

General effect of Act. —

The Act is said to be in the nature of a compromise between employer and employee to settle their differences arising out of personal injuries, but it is a compromise greatly to the advantage of the employee. By it the question of the negligence of the employer is eliminated, the common-law doctrines of the assumption of risk, fellow servants, and contributory negligence are abolished, and the rules of evidence are laxly enforced — so laxly that an award may be made on hearsay evidence alone, if credible, and not contradicted. The relief afforded is fixed, certain and speedy, and at a time when most needed. Under it there is no doubt or uncertainty as to the right of recovery or the amount thereof. The damage resulting from an accident is treated as a part of the expense of the business and to be borne as such, as much as the expense of repairing a piece of machinery which has broken down. Humphries v. Boxley Bros. Co., 146 Va. 91 , 135 S.E. 890 , 1926 Va. LEXIS 314 (1926).

Under the Act both employer and employee surrender former rights and gain certain advantages. The employee surrenders his right to bring an action at law against his employer for full damages and agrees to accept a sum fixed by statute. He gains a wider security in line with the more inclusive recovery afforded. The employer surrenders his right of defense on the grounds of contributory negligence, assumption of risk and the fellow servant rule. He is relieved from liability for damages to the employee for which in an ordinary negligence case he might otherwise be liable to a much greater extent. Fauver v. Bell, 192 Va. 518 , 65 S.E.2d 575, 1951 Va. LEXIS 199 (1951).

As to an employer coming within its terms, the Act imposes a legal obligation to compensate financially the injured employee for an injury received in the course of and arising out of his employment, or the employee’s dependents in the case of his death. Thus, the statute reads into every contract of employment within the purview of the Act the obligation of the employer to pay, and the right of the employee or his dependents to recover, such benefits. Glassco v. Glassco, 195 Va. 239 , 77 S.E.2d 843, 1953 Va. LEXIS 193 (1953).

United States Constitution does not prevent the Virginia Workers’ Compensation Act from applying to an accident, where the worker was employed by the employer as an insulator and was repairing insulation on board a vessel moored at the employer’s facility in Norfolk, Virginia; since the employee was injured in a local, maritime industrial accident. Norfolk Shipbuilding and Dry Dock Corporation v. Lathey, 8 Va. App. 306, 380 S.E.2d 665, 5 Va. Law Rep. 2661, 1989 Va. App. LEXIS 67 (1989), cert. denied, 493 U.S. 1079, 110 S. Ct. 1133, 107 L. Ed. 2d 1038, 1990 U.S. LEXIS 857 (1990).

The Workers’ Compensation Commission has the power to make and enforce rules not inconsistent with the Workers’ Compensation Act, for carrying out the provisions of this Act. Thomas v. Nordstrom Pentagon City/Nordstrom, Inc., 22 Va. App. 626, 472 S.E.2d 288, 1996 Va. App. LEXIS 464 (1996).

Act provides exclusive remedies in field of industrial accidents. —

The Workmen’s (now Workers’) Compensation Act is exclusive insofar as it covers the field of industrial accidents, but no further. To the extent that the field is not touched by the statute, the legislature intended that the employee’s common-law remedies against his employer are to be preserved unimpaired. Griffith v. Raven Red Ash Coal Co., 179 Va. 790 , 20 S.E.2d 530, 1942 Va. LEXIS 275 (1942).

But common-law remedies are preserved for injuries not within its purview. —

The filing of a claim for compensation under the Workmen’s (now Workers’) Compensation Act, which is dismissed because not within the purview of the Act, does not estop the employee from thereafter pursuing his common-law remedy, if any, against the employer. Griffith v. Raven Red Ash Coal Co., 179 Va. 790 , 20 S.E.2d 530, 1942 Va. LEXIS 275 (1942).

The purpose and effect of the Compensation Act are to control and regulate the relations between employer and employee. As between them the remedies therein provided are exclusive. It does not extinguish rights outside of and beyond the employment. Consequently, as to these, the employee’s common-law remedies remain unimpaired, and they are not to be considered as altered or changed except where the legislative intent has been plainly manifested by statute. Fauver v. Bell, 192 Va. 518 , 65 S.E.2d 575, 1951 Va. LEXIS 199 (1951).

Virginia system for workmen’s (now workers’) compensation operates in largely voluntary manner. —

Dillard v. Industrial Comm'n, 416 U.S. 783, 94 S. Ct. 2028, 40 L. Ed. 2d 540, 1974 U.S. LEXIS 143 (1974).

A fair reading of the act and its purposes treats the term “injury” as either a mental or a physical condition, affecting the employee’s person; thus, employee, whose defamation action claimed general damages and alleged no personal injury, was not bound by exclusivity provisions of the Act. Snead v. Harbaugh, 241 Va. 524 , 404 S.E.2d 53, 7 Va. Law Rep. 2386, 1991 Va. LEXIS 54 (1991) (decided under former § 65.1-1 ).

False representation as to physical condition or health made by employee in procuring employment will preclude workers’ compensation benefits for an otherwise compensable injury if a causal relationship between the injury and the false representation is shown and if it is also shown that (1) the employee knew the representation to be false, (2) the employer relied upon the false representation, and (3) such reliance resulted in the consequent injury to the employee. McDaniel v. Colonial Mechanical Corp., 3 Va. App. 408, 350 S.E.2d 225, 3 Va. Law Rep. 1154, 1986 Va. App. LEXIS 375 (1986).

Misrepresentation of eligibility status does not bar claim for benefits where an illegal alien who misrepresents his eligibility status at the time of hire subsequently obtains legal status. Billy v. Lopez, 17 Va. App. 1, 434 S.E.2d 908, 10 Va. Law Rep. 185, 1993 Va. App. LEXIS 402 (1993).

Intentional concealment of fact on application did not bar benefits. —

Employee’s intentional concealment of a material fact on an employment application did not bar his receipt of workers’ compensation benefits for a work-related injury. Where employee submitted second job application almost one year after the date of his first application, and the company assumed that employee’s responses to those unanswered questions would be the same as those given on his earlier application, there was credible evidence that the company’s decision to rehire employee was not made in reliance on his misrepresentation in the second application, but was founded on its assumption that he had no criminal record when he submitted the second application. Falls Church Constr. Co. v. Laidler, 254 Va. 474 , 493 S.E.2d 521, 1997 Va. LEXIS 108 (1997).

Recovery under uninsured motorist policy. —

Virginia law does not permit recovery by an insured’s estate under the uninsured motorist provisions of the insured’s policy (paid for by the insured), where the insured was killed in a work-related motor vehicle accident and where the employer/vehicle owner and co-employee/vehicle operator both had insurance, but where the exclusive remedy clause of the Virginia Workers’ Compensation Act bars recovery under those other policies. Aetna Cas. & Sur. Co. v. Dodson, 235 Va. 346 , 367 S.E.2d 505, 4 Va. Law Rep. 2530, 1988 Va. LEXIS 47 (1988) (see also Dodson v. Aetna Cas. & Sur. Co., 851 F.2d 736 (4th Cir. 1988)).

Under Virginia law, the exclusive remedy clause of the Virginia Workers’ Compensation Act barred recovery under the decedent’s uninsured motorist insurance policy. Dodson v. Aetna Cas. & Sur. Co., 851 F.2d 736, 1988 U.S. App. LEXIS 9598 (4th Cir. 1988).

Where an employer commits an intentional tort with the intent to injure an employee, an action by that employee is not barred by the Virginia Workers’ Compensation Act. McGreevy v. Racal-Dana Instruments, Inc., 690 F. Supp. 468, 1988 U.S. Dist. LEXIS 6655 (E.D. Va. 1988).

Spouse in sham green card marriage. —

Sham green-card marriages are voidable as they are not included in the list of void marriages under §§ 20-45.1 and 20-45.2 ; if the Virginia legislature desires to deny workers’ compensation dependent benefits under § 65.2-101 to the purported spouse in sham green card marriages, they may do so. Marblex Design Int'l, Inc. v. Stevens, 54 Va. App. 299, 678 S.E.2d 276, 2009 Va. App. LEXIS 292 (2009).

II.Purpose and Scope.

Statute was enacted for the beneficent purpose of attaining a humanitarian end which had, hitherto, been frustrated by the inexorable rules of the common law. A. Wilson & Co. v. Mathews, 170 Va. 164 , 195 S.E. 490 , 1938 Va. LEXIS 174 (1938); Fauver v. Bell, 192 Va. 518 , 65 S.E.2d 575, 1951 Va. LEXIS 199 (1951).

The broad sweep of this act’s societal interests including: (1) charging the costs of an industrial accident to the industry involved through workers’ compensation coverage, and (2) assuring that others involved in that industry are immune from further common-law liability arising from those industrial accidents which are covered by the act. Counts v. Stone Container Corp., 239 Va. 152 , 387 S.E.2d 481, 6 Va. Law Rep. 1109, 1990 Va. LEXIS 8 (1990).

Its purpose is to protect employees. —

The purpose of the Workmen’s (now Workers’) Compensation Act is to protect the employee. Ellis v. Commonwealth, 182 Va. 293 , 28 S.E.2d 730, 1944 Va. LEXIS 178 (1944); Rust Eng. Co. v. Ramsey, 194 Va. 975 , 76 S.E.2d 195, 1953 Va. LEXIS 166 (1953).

The purpose of the Workmen’s (now Workers’) Compensation Act is to provide compensation to a workman for the loss of his opportunity to engage in work, when his disability is occasioned by an injury suffered from an accident arising out of and in the course of his employment. Burlington Mills Corp. v. Hagood, 177 Va. 204 , 13 S.E.2d 291, 1941 Va. LEXIS 207 (1941), limited, Chesterfield County v. Dunn, 9 Va. App. 475, 389 S.E.2d 180, 6 Va. Law Rep. 1384, 1990 Va. App. LEXIS 31 (1990).

It is an effort on the part of the State to insure the workman to a limited extent against loss from accidents in his employment, to give him a speedy and expeditious remedy for his injury, and to place upon industry the burden of losses incident to its conduct. Humphries v. Boxley Bros. Co., 146 Va. 91 , 135 S.E. 890 , 1926 Va. LEXIS 314 (1926) (see also C & O Ry. v. Palmer, 149 Va. 560 , 140 S.E. 831 (1927)).

And to place pecuniary loss from accidental injuries on industry. —

The intent and purpose of the Workmen’s (now Workers’) Compensation Act is to make every industrial business bear the pecuniary loss, measured by the payment of compensation provided for in this title, of all accidental injuries to employees engaged therein to the hazard or risk of the happening of which the injured employee is exposed, in a peculiar or an abnormal degree, because of the fact that he is an employee engaged in the particular business. Honaker & Feeney v. Hartley, 140 Va. 1 , 124 S.E. 220 , 1924 Va. LEXIS 152 (1924); Fauver v. Bell, 192 Va. 518 , 65 S.E.2d 575, 1951 Va. LEXIS 199 (1951).

As well as confine to the project the economic burden of all parties arising from personal injuries incident to an undertaking. Bristow v. Safway Steel Prods., 327 F.2d 608, 1964 U.S. App. LEXIS 6723 (4th Cir. 1964).

It is the aim of the Workmen’s (now Workers’) Compensation Act that the financial risk of accidental personal injuries inherent in any project be borne by and limited to that project to the extent specified therein. Turnage v. Northern Va. Steel Corp., 336 F.2d 837, 1964 U.S. App. LEXIS 4303 (4th Cir. 1964); Bergen v. Fourth Skyline Corp., 501 F.2d 1174, 1974 U.S. App. LEXIS 7193 (4th Cir. 1974).

It does not apply to accidents outside field of industrial hazards. —

The fundamental purpose of the Act is to give compensation for accidental injuries within the hazards of the employment. The Act does not apply to accidents outside the field of industrial hazards. Within that field the only remedies of the employee are those prescribed by the Act. Feitig v. Chalkley, 185 Va. 96 , 38 S.E.2d 73, 1946 Va. LEXIS 183 (1946); Rust Eng. Co. v. Ramsey, 194 Va. 975 , 76 S.E.2d 195, 1953 Va. LEXIS 166 (1953).

Or to persons not occupying relationship of master and servant. —

The Workmen’s (now Workers’) Compensation Act, as its title shows, relates to industrial accidents, and its well-known purpose was to substitute for the unsatisfactory common-law remedies a speedier and simpler and more equitable form of relief for personal injuries sustained by persons engaged in hazardous occupations. It would seem clear from the history and purposes and general provisions of the Act that the legislature did not have in mind as beneficiaries any other persons than such as are commonly understood as falling within a contractual relationship of master and servant. Mann v. City of Lynchburg, 129 Va. 453 , 106 S.E. 371 , 1921 Va. LEXIS 109 (1921).

The history of the act clearly shows that the legislature did not have in mind as beneficiaries any persons other than those commonly understood as falling within a contractual relationship of employer and employee. Hamilton Trucking v. Springer, 10 Va. App. 710, 396 S.E.2d 379, 7 Va. Law Rep. 211, 1990 Va. App. LEXIS 151 (1990).

The classification of a person as an employee or an independent contractor is governed, not by any express provision of the act, but by common law, and courts must look to it in determining who is an employee. Hamilton Trucking v. Springer, 10 Va. App. 710, 396 S.E.2d 379, 7 Va. Law Rep. 211, 1990 Va. App. LEXIS 151 (1990).

Employers cannot simply designate persons as employees or independent contractors; the actual contract of employment determines whether the service is being performed by an employee or an independent contractor. Hamilton Trucking v. Springer, 10 Va. App. 710, 396 S.E.2d 379, 7 Va. Law Rep. 211, 1990 Va. App. LEXIS 151 (1990).

Act balances needs of employers and employees. —

In this legislation the General Assembly balanced the competing needs of employers and employees and enacted a statutory scheme which limits the employee’s recovery as compared to full tort damages, but guarantees the injured worker greater security in that to obtain compensation he need not prove negligence and counter traditional defenses such as contributory negligence and assumption of risk. The Supreme Court will not interfere with that far-reaching compromise by requiring the employer to provide compensation for claims which do not come within the statutory language. Low Splint Coal Co. v. Bolling, 224 Va. 400 , 297 S.E.2d 665, 1982 Va. LEXIS 309 (1982).

Immunity provisions apply to insurance carrier when acting beyond scope of liabilities as insurer. —

The immunity provisions of this title apply to an insurance carrier, as an employer, even when the employee’s claim rests on a breach of a voluntary undertaking assumed by the insurance carrier beyond its liabilities under this title as an insurer. Williams v. United States Fid. & Guar. Co., 358 F.2d 799, 1966 U.S. App. LEXIS 7090 (4th Cir. 1966).

Negligence does not bar compensation where an employee, working at a place where his duties reasonably require him to be, is injured because he does his work in a negligent manner. Norfolk & Wash. Steamboat Co. v. Holladay, 174 Va. 152 , 5 S.E.2d 486, 1939 Va. LEXIS 149 (1939).

Negligence is of no concern in a compensation case unless the injury is caused by the employee’s willful negligence or misconduct. Fauver v. Bell, 192 Va. 518 , 65 S.E.2d 575, 1951 Va. LEXIS 199 (1951).

As the Act provides compensation without regard to fault. —

The Workmen’s (now Workers’) Compensation Act provides a system of compensation to an employee or his dependents for injury or death from an injury arising out of and in the course of the employment, without regard to fault as the cause of such injury or death. Griffith v. Raven Red Ash Coal Co., 179 Va. 790 , 20 S.E.2d 530, 1942 Va. LEXIS 275 (1942).

Negligence, either claimant’s or his employer’s, is immaterial in determining the right to recover under the Workers’ Compensation Act. Thus, the precautions taken by an employer before allowing an injured employee to return to work should not be considered in determining if a disability is compensable. Shelton v. Ennis Bus. Forms, Inc., 1 Va. App. 53, 334 S.E.2d 297, 1985 Va. App. LEXIS 59 (1985).

Rabies injections not preventative medical treatment. —

Workers’ compensation commission erred in denying workers’ compensation benefits to a veterinarian assistant who was given injections after her exposure to a probably rabid cat; the injections were not preventative medical treatment, but were given to prevent a life threatening illness, and the evidence proved a compensable injury by accident. Frey v. Gunston Animal Hosp., 39 Va. App. 414, 573 S.E.2d 307, 2002 Va. App. LEXIS 740 (2002).

Application to nonresidents working in Virginia. —

Although the compensation statutes make no reference to the status of nonresidents working in Virginia at the time of an accident, Virginia intended to grant such remedies to, and impose such restrictions and limitations upon, such nonresidents to the same extent as though they were residents and employed by a Virginia employer. McCann v. Newport News Shipbuilding & Dry Dock Co., 177 F. Supp. 909, 1959 U.S. Dist. LEXIS 2739 (D. Va. 1959).

Infliction of emotional distress. —

Generally, the damages that flow from an action for intentional or negligent infliction of emotional distress are not the result of an injury by accident within the meaning of the Workers’ Compensation Act, but result from a gradually incurred injury. Williams v. Garraghty, 249 Va. 224 , 455 S.E.2d 209, 1995 Va. LEXIS 38, cert. denied, 516 U.S. 814, 116 S. Ct. 66, 133 L. Ed. 2d 28, 1995 U.S. LEXIS 5402 (1995).

Defamation. —

Personal damages that employee sought to prove as a result of the defamation do not constitute such an injury by accident. Williams v. Garraghty, 249 Va. 224 , 455 S.E.2d 209, 1995 Va. LEXIS 38, cert. denied, 516 U.S. 814, 116 S. Ct. 66, 133 L. Ed. 2d 28, 1995 U.S. LEXIS 5402 (1995).

There is no cause of action under the Virginia Workers’ Compensation Act for retaliatory discharge. Blevins v. GE Co., 491 F. Supp. 521, 1980 U.S. Dist. LEXIS 13480 (W.D. Va. 1980).

Injury resulting from accident. —

The Virginia Workers’ Compensation Act, § 65.2-100 et seq., does not require that a claimant feel or make a contemporaneous complaint of pain or seek immediate medical treatment; the requirement is that the injury result from the accident. Alexandria Hosp. v. Munjal, 2002 Va. App. LEXIS 448 (Va. Ct. App. Aug. 6, 2002).

Sexual harassment related tort claims allowed. —

Amendments to the Worker’s Compensation Act, which became effective on July 1, 1992, allow sexual harassment related tort claims apart from the Worker’s Compensation Act, and this includes a claim for intentional infliction of emotional distress. Beardsley v. Isom, 828 F. Supp. 397, 1993 U.S. Dist. LEXIS 16186 (E.D. Va. 1993), aff'd sub nom. Beardsley v. Webb, 30 F.3d 524, 1994 U.S. App. LEXIS 19151 (4th Cir. 1994).

III.Construction.

Construction of Indiana act adopted in this State. —

The Virginia Workmen’s (now Workers’) Compensation Act, adopted in 1918, being, practically speaking, a copy of the Indiana act, the judicial construction placed upon the latter act in that state will be considered to have been adopted along with the act in this State. Big Jack Overall Co. v. Bray, 161 Va. 446 , 171 S.E. 686 , 1933 Va. LEXIS 335 (1933); Board of Supvrs. v. Boaz, 176 Va. 126 , 10 S.E.2d 498, 1940 Va. LEXIS 239 (1940).

Indiana decisions are peculiarly applicable in workmen’s (now workers’) compensation cases because the Virginia statute on the subject is based upon the statute of Indiana. Cohen v. Cohen's Dept. Store, 171 Va. 106 , 198 S.E. 476 , 1938 Va. LEXIS 261 (1938); Basham v. Lowe, 176 Va. 485 , 11 S.E.2d 638, 1940 Va. LEXIS 268 (1940) (see Morris v. Pulaski Veneer Corp., 184 Va. 424 , 35 S.E.2d 342 (1945); Harris v. Diamond Constr. Co., 184 Va. 711 , 36 S.E.2d 573 (1946); Stone v. George W. Helme Co., 184 Va. 1051 , 37 S.E.2d 70 (1946)).

The Virginia Workers’ Compensation Act was modeled after the analogous statute in Indiana. Virginia courts have therefore considered decisions interpreting the Indiana Act in construing the substantially similar statute in Virginia. Joyce v. A.C. & S., Inc., 785 F.2d 1200, 1986 U.S. App. LEXIS 22853 (4th Cir. 1986); Haigh v. Matsushita Elec. Corp. of Am., 676 F. Supp. 1332, 1987 U.S. Dist. LEXIS 12113 (E.D. Va. 1987).

The Workmen’s (now Workers’) Compensation Act should be liberally construed in harmony with the humane purpose of the Act. Dixon v. Norfolk Shipbuilding & Dry Dock Corp., 182 Va. 185 , 28 S.E.2d 617, 1944 Va. LEXIS 166 (1944); Chalkley v. Nolde Bros., 186 Va. 900 , 45 S.E.2d 297, 1947 Va. LEXIS 208 (1947); Bailey v. Stonega Coke & Coal Co., 185 Va. 653 , 40 S.E.2d 254, 1946 Va. LEXIS 238 (1946); Fauver v. Bell, 192 Va. 518 , 65 S.E.2d 575, 1951 Va. LEXIS 199 (1951); Rust Eng. Co. v. Ramsey, 194 Va. 975 , 76 S.E.2d 195, 1953 Va. LEXIS 166 (1953).

The Workmen’s (now Workers’) Compensation Act was adopted for the benefit of employees and their dependents, and it should be liberally construed in order to attain the desired results. Byrd v. Stonega Coke & Coal Co., 182 Va. 212 , 28 S.E.2d 725, 1944 Va. LEXIS 170, limited, Carter v. Hercules Powder Co., 182 Va. 282 , 28 S.E.2d 736, 1944 Va. LEXIS 177 (1944).

The Workmen’s (now Workers’) Compensation Act is highly remedial and should be liberally construed in favor of the workman. Barker v. APCO, 209 Va. 162 , 163 S.E.2d 311, 1968 Va. LEXIS 210 (1968).

Although in derogation of the common law. —

The Workmen’s (now Workers’) Compensation Act, although in derogation of the common law, is highly remedial, and should be liberally construed in favor of the workman. Gobble v. Clinch Valley Lumber Co., 141 Va. 303 , 127 S.E. 175 , 1925 Va. LEXIS 409 (1925) (see also Humphrees v. Boxley Bros. Co., 146 Va. 91 , 135 S.E. 8 90 (1926); VEPCO v. Place, 150 Va. 562 , 143 S.E.2d 756 (1928); Bristol Bldrs. Supply Co. v. McReynolds, 157 Va. 468 , 162 S.E. 8 (1932); City of Alexandria v. McClary, 167 Va. 199 , 188 S.E. 158 (1936); A.N. Campbell & Co. v. Messenger, 171 Va. 374 , 199 S.E. 511 (1938); Burlington Mills Corp. v. Hagood, 177 Va. 204 , 13 S.E.2d 291 (1941); Griffith v. Raven Red Ash Coal Co., 179 Va. 790 , 20 S.E.2d 530 (1942); Carter v. Hercules Powder Co., 182 Va. 282 , 28 S.E.2d 736 (1944); Ellis v. Commonwealth, 182 Va. 293 , 28 S.E.2d 730 (1944)).

Law, not facts, to be liberally construed. —

It is true that the Workers’ Compensation Law should be construed liberally in favor of the worker, but it is the law that should be construed liberally, not the facts. Board of Supvrs. v. Martin, 3 Va. App. 139, 348 S.E.2d 540, 3 Va. Law Rep. 707, 1986 Va. App. LEXIS 346 (1986).

Court cannot alter or extend Act’s provisions. —

Liberality of construction does not authorize the amendment, alteration, or extension of the Act’s provisions. It does not go to the extent of requiring that every claim asserted should be allowed. Humphries v. Newport News Shipbuilding & Dry Dock Co., 183 Va. 466 , 32 S.E.2d 689, 1945 Va. LEXIS 193 (1945); Van Geuder v. Commonwealth, 192 Va. 548 , 65 S.E.2d 565, 1951 Va. LEXIS 202 (1951).

The liberal construction which is to be given the Workmen’s (now Workers’) Compensation Act does not include a power of the courts to enlarge the limitations therein expressly set out. Commonwealth v. Granger, 188 Va. 502 , 50 S.E.2d 390, 1948 Va. LEXIS 184 (1948).

The duty to construe the Act liberally does not authorize the amendment, alteration or extension of its provisions. Baggett Transp. Co. v. Dillon, 219 Va. 633 , 248 S.E.2d 819, 1978 Va. LEXIS 224 (1978).

While the Virginia Workers’ Compensation Act (Act), § 65.2-100 et seq., is to be liberally construed in favor of a worker, statutory construction may not be used to extend the rights created by the Act beyond the limitations and purposes set out therein. Hardee's of Clintwood v. Robinson, 2003 Va. App. LEXIS 70 (Va. Ct. App. Feb. 11, 2003).

Claimant must be an “employee.” —

Before an employee can claim the benefits of the Workers’ Compensation Act, or be subject to its restrictions, he or she must be considered an employee under its terms. Evans v. Hook, 239 Va. 127 , 387 S.E.2d 777, 6 Va. Law Rep. 1081, 1990 Va. LEXIS 22 (1990).

To cover persons or occupations not within its scope. —

The Workmen’s (now Workers’) Compensation Act is to be liberally construed to the end that its wise and humane purpose may be advanced; but its provisions cannot be extended by construction, so as to cover persons or occupations not within its scope and intent. Mann v. City of Lynchburg, 129 Va. 453 , 106 S.E. 371 , 1921 Va. LEXIS 109 (1921).

This title is to be liberally construed in favor of the claimant, but this construction has not been expanded to include a third person as its beneficiary, in contradistinction to an employee suing his employer. Monumental Motor Tours v. Eaton, 184 Va. 311 , 35 S.E.2d 105, 1945 Va. LEXIS 151 (1945).

And Act should not be converted into form of health insurance. —

Liberal construction does not mean that the Act should be converted into a form of health insurance. Rust Eng. Co. v. Ramsey, 194 Va. 975 , 76 S.E.2d 195, 1953 Va. LEXIS 166 (1953).

Employer and the insurance carrier are entitled to fair consideration also. Raven Red Ash Coal Corp. v. Absher, 153 Va. 332 , 149 S.E. 541 , 1929 Va. LEXIS 266 (1929).

A false representation on an employment application bars a claim for compensation benefits upon proof by the employer that: (1) the employee knew that the representation was false; (2) the employer relied upon the misrepresentation; (3) such reliance resulted in the consequent injury; and (4) there was a causal relationship between the injury in question and the false representation. Centreville Automotive v. Vanover, 1995 Va. App. LEXIS 199 (Va. Ct. App. Feb. 28, 1995).

IV.Procedure.

Proceeding under the Act is not one to recover damage for a wrong, for the employer’s liability is not based upon tort. Glassco v. Glassco, 195 Va. 239 , 77 S.E.2d 843, 1953 Va. LEXIS 193 (1953).

And the rules of the common law for tort actions do not apply to cases under the Workmen’s (now Workers’) Compensation Act. Under the Act, the proceeding is not one for damage for a wrong done, but to obtain compensation for a loss sustained by reason of disability. Burlington Mills Corp. v. Hagood, 177 Va. 204 , 13 S.E.2d 291, 1941 Va. LEXIS 207 (1941), limited, Chesterfield County v. Dunn, 9 Va. App. 475, 389 S.E.2d 180, 6 Va. Law Rep. 1384, 1990 Va. App. LEXIS 31 (1990).

Plaintiff bears burden of proving his case. —

Under the Workmen’s (now Workers’) Compensation Act the plaintiff must prove his case and the burden of doing so rests upon him. Carter v. Hercules Powder Co., 182 Va. 282 , 28 S.E.2d 736, 1944 Va. LEXIS 177 (1944); Van Geuder v. Commonwealth, 192 Va. 548 , 65 S.E.2d 565, 1951 Va. LEXIS 202 (1951).

Trial court did not err in granting the subcontractor’s demurrer in the general contractor’s indemnity action against the subcontractor after the injured employee of the subcontractor obtained workers’ compensation benefits from the general contractor; the general contractor in its indemnity action had to show that the subcontractor was liable to pay the workers’ compensation benefits, but the general contractor failed to plead facts showing that the subcontractor, which had a principal place of business in Maryland, was subject to the Virginia Workers’ Compensation Act, § 65.2-100 et seq., as the general contractor did not show that the subcontractor had at least three employees regularly in the service of the Commonwealth. Mark Five Constr., Inc. v. Castle Contr., 274 Va. 283 , 645 S.E.2d 475, 2007 Va. LEXIS 80 (2007).

Standard of proof. —

A claimant must prove his case by a preponderance of the evidence, and if the evidence shows that it is just as probable that a disability resulted from a cause which is not compensable, as it is that it resulted from one which is compensable, the claimant has not sustained the burden of proof. Bergman v. L & W Drywall, 222 Va. 30 , 278 S.E.2d 801, 1981 Va. LEXIS 267 (1981).

Doctrine of imposition did not apply to relieve employee of procedural default. —

Where the Virginia Workers’ Compensation Commission characterized the employee’s claim for temporary total disability benefits as a change-of-condition request seeking additional benefits rather than as a mere enforcement action of an earlier award, the doctrine of imposition did not apply to relieve the employee of procedural default, as no evidence suggested that the employer misled the employee or used superior knowledge of or experience with the Virginia Workers’ Compensation Act, § 65.2-100 to deprive the employee of the employee’s claimed compensation. Morissette v. Custom Tel. Serv., 2003 Va. App. LEXIS 82 (Va. Ct. App. Feb. 19, 2003).

Commission may not arbitrarily disregard uncontradicted evidence of unimpeached witnesses, which is not inherently incredible and not inconsistent with other facts in the record. Grove v. Allied Signal, 15 Va. App. 17, 421 S.E.2d 32, 9 Va. Law Rep. 162, 1992 Va. App. LEXIS 230 (1992).

Improper determination of witness credibility. —

The commission erred because it abused its discretion in determining witness credibility as the basis for reversing the deputy commissioner. McMurphy Coal Co. v. Miller, 20 Va. App. 57, 455 S.E.2d 265, 1995 Va. App. LEXIS 263 (1995).

Appellate review. —

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 Va. Training Ctr. v. Shell, 20 Va. App. 199, 455 S.E.2d 761, 1995 Va. App. LEXIS 342 (1995).

Election of remedies. —

The mere filing of a claim for workmen’s (now workers’) compensation does not bar a plaintiff under the doctrine of election of remedies from filing a claim in admiralty for negligence or unseaworthiness. Biggs v. Norfolk Dredging Co., 237 F. Supp. 590, 1965 U.S. Dist. LEXIS 7677 (E.D. Va. 1965), rev'd, 360 F.2d 360, 1966 U.S. App. LEXIS 6654 (4th Cir. 1966).

Award of benefits affirmed. —

Claimant’s immediate report of the events to her supervisors following a sexual assault, and her description of the incident during her testimony, clearly established that the sexual assault was traumatic, frightening, and unexpected, and the Virginia Workers’ Compensation Commission’s award of benefits was affirmed. Southwestern Va. Mental Health Inst. v. Wright, 2006 Va. App. LEXIS 454 (Va. Ct. App. Oct. 10, 2006).

Termination of benefits due to misconduct. —

While the commission applied the two-part Artis test to conclude that the employee’s misconduct in walking off of the job constituted misconduct that gave the employer just cause to terminate the employee, it failed to apply the second part of that test. The commission was also required to determine whether the employee was responsible for the misconduct, or, in other words whether the employee’s misconduct was voluntary or involuntary in order to determine whether workers’ compensation benefits previously awarded could be terminated. Patterson Bros. Paving v. Lacy, 2008 Va. App. LEXIS 15 (Va. Ct. App. Jan. 15, 2008).

Although an employee’s poor work performance was sufficient to show conduct unrelated to the employee’s disability that warranted a permanent suspension of benefits, the Workers’ Compensation Commission made no findings and conducted no analysis with respect to whether the employee’s misconduct was voluntary or involuntary. Chem. Producers & Distribs. Ass'n v. Perry, 2009 Va. App. LEXIS 259 (Va. Ct. App. June 9, 2009).

CIRCUIT COURT OPINIONS

Jurisdiction of Worker’s Compensation Commission. —

All matters falling within the purview of the Virginia Worker’s Compensation Act were the exclusive province of the Virginia Worker’s Compensation Commission, and a clear meaning of the words used exempted lump sum worker’s compensation awards from the Virginia Structured Settlement Protection Act, § 59.1-475 et seq.; a worker’s petition seeking approval of a transfer of a structured settlement payment rights relating to a worker’s compensation award in a circuit court was dismissed. In re Moore, 68 Va. Cir. 139, 2005 Va. Cir. LEXIS 67 (Portsmouth June 9, 2005).

NOTES FROM THE WORKERS’ COMPENSATION COMMISSION

Parties are charged with knowledge of the existing law. Application of the law is not dependent on whether a party professes knowledge of that law. Taylor v. Stone Builders, 75 O.W.C. 11 (1996).

OPINIONS OF THE ATTORNEY GENERAL

Covid-19. —

If a first responder becomes ill from COVID-19 from an exposure at work, it is likely a compensable illness under the Workers’ Compensation Act. See opinion of Attorney General to The Honorable Ken Stolle, Sheriff, City of Virginia Beach, 20-024, 2020 Va. AG LEXIS 21 (5/22/20).

If COVID-19 is an upper respiratory disease, it falls under the heart and lung presumption of the Act for first responders, however the statutory presumption applies only to a limited class of first responders under certain circumstances and, therefore, would not have broad applicability to all or most of the first responders whose official duties regularly place them at far greater risk of contracting COVID-19 than the general public following social distancing guidelines. See opinion of Attorney General to The Honorable Ken Stolle, Sheriff, City of Virginia Beach, 20-024, 2020 Va. AG LEXIS 21 (5/22/20).

A first responder who has the benefit of a presumption, has the initial burden of producing evidence to trigger the presumption (evidence of the disease, and evidence of disability or death caused by the disease); once the presumption is triggered, the burden shifts to the employer to rebut the presumption (that the disease was not caused by the employment and that there is a non-work-related cause). See opinion of Attorney General to The Honorable Ken Stolle, Sheriff, City of Virginia Beach, 20-024, 2020 Va. AG LEXIS 21 (5/22/20).

I.General Consideration.

Editor’s note.

Some of the cases annotated below were decided under former Title 65.1 or prior law.

Gratuitous services not within scope of act. —

When services or labor are rendered voluntarily without a promise of compensation or remuneration of any kind, express or implied, then the one providing the services or labor has supplied them gratuitously and is not covered by the act. Humphries v. Thomas, 244 Va. 571 , 422 S.E.2d 755, 9 Va. Law Rep. 553, 1992 Va. LEXIS 113 (1992) (decided under former § 65.1-4).

Comity barred tort action where employer compensated out of state. —

Virginia would as a matter of comity treat an employee’s North Carolina compensation award as his exclusive remedy and hold his common-law tort action against his statutory employer as barred in Virginia. Kelly v. Guyon Gen. Piping, Inc., 882 F.2d 108, 1989 U.S. App. LEXIS 11971 (4th Cir. 1989).

There is no per se rule that would bar employees with residual skills from receiving benefits under the Act if they fail to register with the State Employment Commission. There is no bright line test as to what constitutes marketing one’s residual capacity; it is better decided on a case-by-case basis. Herbert Brothers, Inc. v. Jenkins, 14 Va. App. 715, 419 S.E.2d 283, 8 Va. Law Rep. 3539, 1992 Va. App. LEXIS 172 (1992) (decided under former § 65.1-63).

The Federal Employees’ Compensation Act does not exempt federal employees from the Virginia Workers’ Compensation Act (VWCA); the statute merely shields the United States from liability arising out of the death of a federal employee in any type of proceeding, including a proceeding brought under a state workers’ compensation act such as the VWCA. McCotter v. Smithfield Packing Co., 849 F. Supp. 443, 1994 U.S. Dist. LEXIS 5164 (E.D. Va. 1994).

Third party liability. —

The Federal Employee’s Compensation Act has no effect on the liability of a third party who asserts the exclusivity of a state workers’ compensation scheme to shield it from liability. McCotter v. Smithfield Packing Co., 849 F. Supp. 443, 1994 U.S. Dist. LEXIS 5164 (E.D. Va. 1994).

Term “filed” applies to filing of answers to interrogatories. —

The Workers’ Compensation Commission reasonably construed the term “filed” to apply to the filing of answers to interrogatories in a worker’s compensation case. Jeff Coal, Inc. v. Phillips, 16 Va. App. 271, 430 S.E.2d 712, 9 Va. Law Rep. 1261, 1993 Va. App. LEXIS 95 (1993).

The legislature did not contemplate that registered agents, directors, and shareholders of corporations must also give notice to the insurance carrier for purposes of § 65.2-600 . Solid Gold Corp. v. Wang, 18 Va. App. 66, 441 S.E.2d 643, 10 Va. Law Rep. 1070, 1994 Va. App. LEXIS 126 (1994).

The Commission has the power to enter awards granting or denying benefits under the Workers’ Compensation Act and dictating the terms under which those benefits will be paid as long as those terms do not conflict with the requirements of the Act. Rusty's Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 510 S.E.2d 255, 1999 Va. App. LEXIS 67 (1999).

Weighing of conflicting medical evidence. —

In cases of conflicting medical evidence, the general rule is that when an attending physician is positive in his diagnosis, great weight will be given by the courts to his opinion. Sunnyside Presbyterian Home v. Shifflett, 1995 Va. App. LEXIS 821 (Va. Ct. App. Nov. 7, 1995).

II.Average Weekly Wage.

Editor’s note.

Many of the cases annotated under the heading “Average Weekly Wage” were decided under former § 65.1-6 or prior law.

Determination of average weekly wages was controlled by former § 65.1-6 and not by the provision defining who is covered by the Act. First Va. Banks, Inc. v. McNeil, 8 Va. App. 342, 381 S.E.2d 357, 6 Va. Law Rep. 1, 1989 Va. App. LEXIS 97 (1989).

All earnings included in determining average weekly wage. —

The plain meaning of former § 65.1-6 required that all earnings from employment, whether covered or not, would be included in determining the average weekly wage. First Va. Banks, Inc. v. McNeil, 8 Va. App. 342, 381 S.E.2d 357, 6 Va. Law Rep. 1, 1989 Va. App. LEXIS 97 (1989).

Comparison of average weekly wage pre- and post-injury. —

If the claimant suffers a disability as a result of the injury, the Commission must compare the claimant’s pre-injury average weekly wage to the wage he is able to earn after the injury to determine whether he is entitled to total or partial disability benefits and, if so, at what rate. Smith v. Smith, 32 Va. App. 242, 527 S.E.2d 463, 2000 Va. App. LEXIS 296 (2000).

Paucity of evidentiary record. —

In a workers’ compensation action, a finding that the claimant failed to prove that her deceased husband’s average weekly wage was $2,500 was appropriate given the paucity of the evidentiary record and given the fact that the claimant failed to show that the aberrational weekly wage figure would have been a fair and just approximation of future loss. One week’s high pay did not represent a realistic judgment of the employee’s future loss. Thorpe v. Clary, 57 Va. App. 617, 704 S.E.2d 611, 2011 Va. App. LEXIS 34 (2011), aff'd, 283 Va. 808 , 724 S.E.2d 728, 2012 Va. LEXIS 97 (2012).

Virginia Workers’ Compensation Commission erred in awarding workers’ compensation benefits under § 65.2-101 as no evidence supported the finding that a decedent would have earned the federal minimum wage, multiplied by a 40-hour work week, were it not for his death where the decedent withdrew fluctuating amounts, weekly, as loans from his sole proprietorship’s draw account for the 52 weeks before his death; the number of hours the decedent worked each week was irrelevant. Key Risk Ins. Co. v. Crews, 60 Va. App. 335, 727 S.E.2d 436, 2012 Va. App. LEXIS 208 (2012).

Dissimilar jobs with same employer. —

Earnings from three dissimilar jobs with the same employer were properly combined to calculate claimant’s average weekly wage. City of Danville Sch. Bd. v. Watson, 2000 Va. App. LEXIS 86 (Va. Ct. App. Feb. 8, 2000).

Profits of business not to be considered. —

The general rule is that profits derived from a business, including a sole proprietorship, are not to be considered as earnings and cannot be accepted as a measure of loss of earning power unless they are almost entirely the direct result of the claimant’s personal management and endeavor. Smith v. Smith, 32 Va. App. 242, 527 S.E.2d 463, 2000 Va. App. LEXIS 296 (2000).

Use of profit and loss statements for preceding 52 weeks. —

Workers’ Compensation Commission’s use of profit and loss statements for the 52 weeks preceding a sole proprietor’s work-related injury, as opposed to his schedule C from his previous year’s tax return, to calculate his average weekly wage, was a more accurate method of determining his net earnings for the statutory period, and did not deprive him of the benefit of an increase in his income between the first of the year and the date of his accident. Brown v. Brown, 40 Va. App. 79, 577 S.E.2d 543, 2003 Va. App. LEXIS 121 (2003).

Error to consider net taxable income of sole proprietorship. —

Where the claimant, the owner of a sole proprietorship, was totally disabled for about eleven weeks and partially disabled for about eighteen weeks, it was error for the commission to determine his economic loss by comparing the net taxable income of the proprietorship for the year with that for the prior year. In using this approach, the Commission may unfairly have attributed to the period of disability income received in the same year but before or after the period of disability and may also have improperly included business profits rather than wages or their equivalent in its calculation of claimant’s pre- or post-injury wage. Smith v. Smith, 32 Va. App. 242, 527 S.E.2d 463, 2000 Va. App. LEXIS 296 (2000).

Withdrawals from sole proprietorship operating at a loss. —

Fluctuating amounts a decedent withdrew weekly from a draw account of his sole proprietorship did not constitute wages under § 65.2-101 , as they were loans; such income did not constitute earnings for purposes of calculating his average weekly wage under § 65.2-101 . Key Risk Ins. Co. v. Crews, 60 Va. App. 335, 727 S.E.2d 436, 2012 Va. App. LEXIS 208 (2012).

Payment for single side job not to be considered. —

The commission erred in calculating the average weekly wage of an employee working on a side job where it used the amount the employee was to be paid for that job as his average weekly wage; the evidence was insufficient to support this figure as it established that the employee had a regular job paying substantially less per week than the amount he was to be paid for the side job and there was no evidence that the employee intended to undertake other side jobs or that such jobs were available. Mount Vernon Bldrs., Inc. v. Rotty, 28 Va. App. 511, 507 S.E.2d 95, 1998 Va. App. LEXIS 616 (1998).

The reason for calculating the average weekly wage is to approximate the economic loss suffered by an employee or his beneficiaries when there is a loss of earning capacity because of work-related injury or death. Bosworth v. 7-Up Distrib. Co., 4 Va. App. 161, 355 S.E.2d 339, 3 Va. Law Rep. 2205, 1987 Va. App. LEXIS 175 (1987).

Award based on wages received from employment where employee exposed to element. —

By using the phrase “in the employment in which he was working at the time of his injury” in former § 65.1-6, the legislature intended that the average weekly wage award be based upon the wages received from the employment where the employee was exposed to the element which caused the occupational disease for which claim is made. C & P Tel. Co. v. Williams, 10 Va. App. 516, 392 S.E.2d 846, 6 Va. Law Rep. 2775, 1990 Va. App. LEXIS 119 (1990).

Compensation calculation if in concurrent employment. —

Virginia follows the majority rule that when an employee is injured on one job while in concurrent employment, the average weekly wage compensated is based on the combined earnings of both jobs if, but only if, the employments are related or similar. County of Frederick Fire & Rescue v. Dodson, 20 Va. App. 440, 457 S.E.2d 783, 1995 Va. App. LEXIS 499 (1995).

Similar employment analysis. —

A straight quantitative approach, weighing the like duties against the distinct duties of two employments to reach a decision, will not always be determinative of the issue of whether employment is similar. Where, in the instant case, all of a claimant’s duties and skills in one job are utilized in the other job, which has a wider scope of employment, the general class of employment approach, focusing on the primary mission of an employee in both jobs, provides a more rational analysis for determining whether two employments are so related as to conclude they are substantially similar. County of Frederick Fire & Rescue v. Dodson, 20 Va. App. 440, 457 S.E.2d 783, 1995 Va. App. LEXIS 499 (1995).

In every situation where the commission is asked to determine whether two or more jobs are substantially similar, it must consider not only the particular duties of each job, but also the general nature or type of employment of the two jobs. Creedle Sales Co. v. Edmonds, 24 Va. App. 24, 480 S.E.2d 123, 1997 Va. App. LEXIS 7 (1997).

When an injured employee is disabled from performing his employment duties, the employee’s earnings from two or more jobs that are substantially similar may be combined. Creedle Sales Co. v. Edmonds, 24 Va. App. 24, 480 S.E.2d 123, 1997 Va. App. LEXIS 7 (1997).

Where claimant’s skills as a plumber and as a mechanic were utilized substantially in both jobs, the commission correctly combined his salary from both in calculating his average weekly wage. Creedle Sales Co. v. Edmonds, 24 Va. App. 24, 480 S.E.2d 123, 1997 Va. App. LEXIS 7 (1997).

The substantially similar doctrine prevents combining salaries from two separate jobs if the jobs are not similar; the rationale for applying the doctrine is not present when the two jobs are for same employer. Dinwiddie County Sch. Bd. v. Cole, 28 Va. App. 462, 506 S.E.2d 36, 1998 Va. App. LEXIS 555 (1998), aff'd, 258 Va. 430 , 520 S.E.2d 650, 1999 Va. LEXIS 114 (1999).

The decision of the Workers’ Compensation Commission’s to calculate the average weekly wage by combining income from the two positions the claimant held with a single employer was in keeping with the purpose of the Act. Dinwiddie County Sch. Bd. v. Cole, 28 Va. App. 462, 506 S.E.2d 36, 1998 Va. App. LEXIS 555 (1998), aff'd, 258 Va. 430 , 520 S.E.2d 650, 1999 Va. LEXIS 114 (1999).

In determining whether two jobs are “substantially similar,” the court looks at the following: (1) the duties and skills of each job and (2) the primary mission of the employee on each job. Mercy Tidewater Ambulance Serv. v. Carpenter, 29 Va. App. 218, 511 S.E.2d 418, 1999 Va. App. LEXIS 140 (1999).

The term “similar” in this context may relate to the similarity of: (1) the work, (2) the industry in which the work is performed or (3) the degree of hazard to which the employee is exposed. Mercy Tidewater Ambulance Serv. v. Carpenter, 29 Va. App. 218, 511 S.E.2d 418, 1999 Va. App. LEXIS 140 (1999).

Finding that worker’s two jobs, delivering appliances and delivering newspapers, were substantially similar for purposes of § 65.2-101 was proper because, duties and skills required in each job were substantially similar, in both jobs the worker picked up the product, followed a delivery route, and delivered the product; additionally, the “primary missions” of the two employments were similar, providing customer delivery services. Although the worker delivered different products, the duties required to deliver the products were substantially similar. Lowes No. 0509 & Lowes Home Ctrs., Inc. v. Stanley, 2007 Va. App. LEXIS 224 (Va. Ct. App. May 29, 2007).

“Dissimilar employment rule” upheld. —

Had the legislature intended to alter the “dissimilar employment rule,” it could have simply added language to former § 65.1-6 permitting the combination of wages earned in dissimilar employment for the purposes of computing a complainant’s pre-injury “average weekly wage.” Therefore, while claimant had demonstrated that certain inequities resulted from the application of the “dissimilar employment rule,” the Supreme Court’s decision in other cases as well as the absence of any amendment to former § 65.1-6, established this doctrine as the prevailing rule in Virginia. Hudson v. Arthur Treacher, 2 Va. App. 323, 343 S.E.2d 97, 1986 Va. App. LEXIS 275 (1986).

Application of the “dissimilar employment rule.” —

The “dissimilar employment rule” is equally applicable in defining an employee’s “average weekly wages” which he is able to earn after an injury as it is in defining his “average weekly wages” before the injury. City of Fairfax v. Massey, 11 Va. App. 238, 397 S.E.2d 679, 7 Va. Law Rep. 669, 1990 Va. App. LEXIS 188 (1990).

Similar services. —

An employee’s “average weekly wages” also include an employee’s earnings from similar services for employment not covered by the Workers’ Compensation Act. First Va. Banks, Inc. v. McNeil, 8 Va. App. 342, 381 S.E.2d 357, 6 Va. Law Rep. 1, 1989 Va. App. LEXIS 97 (1989).

Domestic employers. —

The statutory definition of “average weekly wages” does not incorporate an exclusion for domestic employees. First Va. Banks, Inc. v. McNeil, 8 Va. App. 342, 381 S.E.2d 357, 6 Va. Law Rep. 1, 1989 Va. App. LEXIS 97 (1989).

Earnings from other similar employment may include domestic employment even though domestic employees are excluded from coverage under the act. Metropolitan Cleaning Corp. v. Crawley, 14 Va. App. 261, 416 S.E.2d 35, 8 Va. Law Rep. 2570, 1992 Va. App. LEXIS 112 (1992).

Criteria for determining whether allowance paid to employee was in lieu of wages. —

In determining whether the allowance paid to an employee was in lieu of wages, the pertinent question is whether the allowance represented a payment made in consideration for work and constituted an economic gain to him. Bosworth v. 7-Up Distrib. Co., 4 Va. App. 161, 355 S.E.2d 339, 3 Va. Law Rep. 2205, 1987 Va. App. LEXIS 175 (1987).

An allowance paid to an employee must be included in the average weekly wage calculation if the allowance meets two conditions: first, the allowance must be specifically provided for in the contract of employment, and, second, the allowance must be of such character as to indicate that it is paid “in lieu of wages.” Bosworth v. 7-Up Distrib. Co., 4 Va. App. 161, 355 S.E.2d 339, 3 Va. Law Rep. 2205, 1987 Va. App. LEXIS 175 (1987).

Payments made other than to the employee to secure fringe benefits for the employee are not “allowances . . . in lieu of wages” for purposes of computing average weekly wage. Gajan v. Bradlick Co., 4 Va. App. 213, 355 S.E.2d 899, 3 Va. Law Rep. 2554, 1987 Va. App. LEXIS 255 (1987).

Automobile allowance not included for purposes of calculating average weekly wage. —

Where employee was killed in an automobile collision arising out of and in the course of his employment as a travelling salesman, he had used his own automobile for his employment-related travel, and in return, his employer had paid to him an automobile allowance of $75.00 per week to cover the costs of depreciation, tires, oil, gas, insurance and other expenses associated with the operation of his automobile in his employment, the automobile allowance provided no financial gain to the employee but was rather in the nature of reimbursement for out-of-pocket related expenses. Therefore, the automobile allowance could not be included as wages for the purpose of calculating average weekly wage. Bosworth v. 7-Up Distrib. Co., 4 Va. App. 161, 355 S.E.2d 339, 3 Va. Law Rep. 2205, 1987 Va. App. LEXIS 175 (1987).

Allowances for meals, lodging, and travel properly included. —

There was credible evidence in the record to support the Commission’s decision that the allowances paid to the employee for meals, lodging, and travel were in lieu of wages and part of his wage contract; thus, they were properly included in calculating his average weekly wage. Southwest Architectural Prods., Inc. v. Smith, 4 Va. App. 474, 358 S.E.2d 745, 4 Va. Law Rep. 157, 1987 Va. App. LEXIS 201 (1987).

Benefits to employee not “in lieu of wages.” —

Commission determination that an employer was not entitled to a credit under § 65.2-712 for benefits paid to or on behalf of a worker was proper because the commission resolved any inconsistency in the testimony by crediting the charity motive as the driving force behind the benefits conferred on the worker, and was not persuaded that the allowances made to the worker were truly a substitute for wages. Fairfax Hosp. v. McKaveney, 2007 Va. App. LEXIS 365 (Va. Ct. App. Oct. 2, 2007).

Promotion not found. —

Virginia Workers’ Compensation Commission’s calculation of a claimant’s average weekly wage under § 65.2-101 was supported as the claimant was not promoted and her job classification did not change merely because she worked a few hours a week as a trainer at an increased hourly wage. Waters v. TGI Friday's, 2012 Va. App. LEXIS 129 (Va. Ct. App. Apr. 24, 2012).

Similar employment found. —

Credible evidence supported commission’s finding that claimant’s independent contractor work as a long-haul truck driver was sufficiently similar to his work for lumber company as a short-haul truck driver to permit the inclusion of his independent contractor earnings when calculating his average weekly wage. Wood Prods. v. James, 20 Va. App. 116, 455 S.E.2d 722, 1995 Va. App. LEXIS 333 (1995).

Doctor’s restriction of claimant from performing one of the duties, firefighting, involved in her job with employer, did not require a finding that the jobs were dissimilar, nor did it necessitate a finding that claimant was not entitled to temporary partial disability benefits. While it is true, as employer contends, that claimant has been able to return to her work at the hospital but still cannot fight fires, this could be true of any number of jobs that are similar and of the same general class but in which one requires extra physical qualifications that the other does not. County of Frederick Fire & Rescue v. Dodson, 20 Va. App. 440, 457 S.E.2d 783, 1995 Va. App. LEXIS 499 (1995).

Although claimant’s two jobs were performed in different settings (i.e., an ambulance versus an emergency room), the employments were of the same general class as both positions focused on providing emergency care services to patients, and therefore the positions were “substantially similar.” Mercy Tidewater Ambulance Serv. v. Carpenter, 29 Va. App. 218, 511 S.E.2d 418, 1999 Va. App. LEXIS 140 (1999).

No error in amending wage to include full-time job earnings. —

Commission did not err in amending claimant’s average weekly wage to include her earnings from full-time job. At the time of the first proceeding, only claimant’s part-time job with her earnings therefrom appeared relevant. Had the parties been aware that claimant would require surgery and would suffer loss of earnings from full-time job, their considerations would have been different. Thus, the evidence supported the commission’s finding that a mutual mistake of fact existed at the time the parties agreed to the stipulation. Colonnades Marriott Senior Living v. Durden, 1997 Va. App. LEXIS 661 (Va. Ct. App. Nov. 4, 1997).

Deviation of average weekly wage in agreement from statutory guidelines. —

The Workers’ Compensation Act is in the nature of a compromise between employers and employees; each surrenders certain rights to gain certain rights. An essential element of this compromise is the employer’s obligation to pay for compensable injuries at a rate contemplated by the Act. When the average weekly wage embodied in a memorandum of agreement substantially deviates from the statutory guidelines, the balance struck by the Act’s compromises is disrupted. The Commission has the power and authority to right this imbalance and thereby protect itself and its award from such imposition. John Driggs Co. v. Somers, 228 Va. 729 , 324 S.E.2d 694, 1985 Va. LEXIS 168 (1985).

Correction of average weekly wage. —

Virginia Workers’ Compensation Commission’s correction of a claimant’s average weekly wage under § 65.2-101 to $798.31 was proper as the agreed average weekly wage was based on an incorrect number of work weeks, and the claimant’s wages as reported in her pay stubs did not accurately reflect her 2006 earnings as unreported tips were not included in those figures. Waters v. TGI Friday's, 2012 Va. App. LEXIS 129 (Va. Ct. App. Apr. 24, 2012).

Date of accident determinative, not date of disability. —

This section provided in pertinent part: “Unless the context otherwise requires, ‘average weekly wages’ means the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury, divided by 52 . . . .” This clear statutory language made the date of the accident determinative, not the date of disability. Green v. Nottoway Correctional Center, 13 Va. App. 301, 411 S.E.2d 231, 8 Va. Law Rep. 1450, 1991 Va. App. LEXIS 299 (1991).

Unemployment for more than one year. —

The average weekly wage is calculated in order to approximate the economic loss sustained by an employee suffering from a work-related injury or by his statutory beneficiaries in the case of his work-related death and, where an employee has earned no wages during the 52 weeks preceding his death or the 52 weeks preceding the communication of the diagnosis of his occupational disease, there has been no economic loss and there is no basis for awarding indemnity benefits to the employee’s statutory beneficiaries. Newton v. Fairfax County Police Dep't, 259 Va. 801 , 529 S.E.2d 794, 2000 Va. LEXIS 80 (2000).

Retirement following injury does not affect average weekly wage. —

Workers’ compensation benefits are intended to compensate the claimant for wage loss resulting from a compensable accident and the employee’s voluntary retirement from the employer does not remove or diminish his ability to earn wages; being temporarily and totally disabled does prevent the claimant from earning wages and, therefore, he is entitled to temporary total disability benefits based on his preinjury average weekly wage. Burlington Indus., Inc. v. Golda, 2000 Va. App. LEXIS 595 (Va. Ct. App. Aug. 15, 2000).

Proper method used to calculate average weekly wage. —

The commission did not err in concluding that because of the casual nature or terms of defendant’s employment, simply dividing his income for the year by the number of days in the year preceding his injury was inadequate to determine a weekly wage and the commission properly resorted to using the proved hourly rate to determine the statutory definition of “average weekly wage.” Dominion Assocs. Group v. Queen, 17 Va. App. 764, 441 S.E.2d 45, 10 Va. Law Rep. 906, 1994 Va. App. LEXIS 90 (1994).

Finding that $48.08 was the decedent’s average weekly wage applicable to the workers’ compensation claim was proper, because the decedent had never worked in the metal roofing and siding occupation before, and there was no evidence that he would do so in the future; it would not have been “fair and just to both parties” to assume he was hired for a continuing wage of $2,500 per week. Thorpe v. Ted Bowling Constr., 283 Va. 808 , 724 S.E.2d 728, 2012 Va. LEXIS 97 (2012).

Workers’ Compensation Commission properly calculated a claimant’s average weekly wage for periods of temporary total disability by dividing her salary by 52 weeks instead of the 43 weeks that she actually worked each year because the claimant personally chose not to work summers even though summer work was available to her, she was not a seasonal employee, and her summer months were not “lost” time. Seminario v. Fairfax County Pub. Schs, 2014 Va. App. LEXIS 397 (Va. Ct. App. Dec. 9, 2014).

Record supported the Workers’ Compensation Commission’s calculation of the employee’s average weekly wage because the employee suffered an injury before making the final professional football team roster, the football team never placed the employee on injured reserve, and therefore his earnings as a football player were entirely hypothetical. The Commission’s determination that the employee’s average weekly wage should be determined by his actual pre-injury earnings and not by speculative projections was proper. Jones v. Pro-Football, Inc., 69 Va. App. 732, 823 S.E.2d 20, 2019 Va. App. LEXIS 31 (2019).

Although the claimant testified that he received housing, medical coverage, a gym membership, equipment, a $42 per diem, and coverage of his travel expenses, because he did not present any evidence on the issue of whether those allowances were provided in lieu of wages, he did not provide any testimony or evidence to address whether he received the per diem regardless of his actual expenses and that he was not required to account for his expense, and he failed to carry his burden of proving the value of other allowances besides his per diem, there was no evidence of the value of those allowances, and the Virginia Workers’ Compensation Commission could not have considered them even if the claimant had shown they constituted an economic gain. Johnston v. Echl Pers. Mgmt. of N.J. & Great Divide Ins. Co., 2020 Va. App. LEXIS 240 (Va. Ct. App. Oct. 6, 2020).

Because the claimant earned $20,075.26 during the hockey season, and he did not seek or obtain other work during the off-season before his injury, during a 52-week period, he would have expected to make $20,075.26; thus, the Virginia Workers’ Compensation Commission’s calculations were correct as $20,075.26 divided by 52 weeks was $386.06; and a calculation of average weekly wage that used the number of weeks the claimant worked would have been unjust to his employer. Johnston v. Echl Pers. Mgmt. of N.J. & Great Divide Ins. Co., 2020 Va. App. LEXIS 240 (Va. Ct. App. Oct. 6, 2020).

Improper method used to calculate weekly wage for employee hired for 1 day only. —

Commission erred in basing amount of deceased worker’s death benefit compensation on the assumption of a 40-hour week, where worker was hired for only one day for $42.00 and was killed after working a portion of the day; instead, the amount of the award must be fixed based upon the actual weekly wage of $42.00. Uninsured Employer's Fund v. Thrush, 255 Va. 14 , 496 S.E.2d 57, 1998 Va. LEXIS 4 (1998).

Wages calculated based on work being done at time of injury. —

Where an employee had been previously employed by the employer in a lower-paying landscaping job but had been laid off from that job more than nine months before being rehired to do higher-paying seasonal decorating work, the commission properly calculated the employee’s average weekly wage by reference only to the seasonal work, including a bonus a received by the employee for that work. Ellen Kaye, Inc. v. Wigglesworth, 34 Va. App. 390, 542 S.E.2d 30, 2001 Va. App. LEXIS 89 (2001).

This section contains the guideposts by which the commission may base its finding of average weekly wage. When the earnings of an injured employee are not amenable to the primary calculation specified in this section, “[t]he commission properly resort[s] to ‘such other method of computing average weekly wages . . . most nearly approximat[ing] the amount which the injured employee . . . earn[s].”’.Meredith Constr. Co. v. Holcombe, 21 Va. App. 537, 466 S.E.2d 108, 1996 Va. App. LEXIS 37 (1996).

III.Change in Condition.

Editor’s note.

Many of the cases annotated under the heading “Change in Condition” were decided under former § 65.1-8 or prior law.

Foundation for application based on change in condition. —

This section was the foundation for an application based on a change in condition. It was distinct from and did not require a new industrial injury to support compensation for a change of condition. But if a new injury exacerbated a previous condition, the resulting accelerated disability was compensable. Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 409 S.E.2d 824, 2000 Va. App. LEXIS 86 (1991).

Where no “change of condition,” claim barred by res judicata. —

Where the claimant’s second application was based upon the same medical results and findings as the first claim, explained in greater detail, the second application was barred by the doctrine of res judicata. Rusty's Welding Serv., Inc. v. Gibson, 27 Va. App. 733, 501 S.E.2d 444, 1998 Va. App. LEXIS 386 (1998), different results reached on reh'g, 29 Va. App. 119, 510 S.E.2d 255, 1999 Va. App. LEXIS 67 (1999).

Although employee’s second claim related to a different time period than that claimed in first proceeding, second claim was barred by res judicata since medical evidence offered in second proceeding was identical to that offered in first proceeding. Aramark Corp. v. Terry, 2000 Va. App. LEXIS 192 (Va. Ct. App. Mar. 14, 2000).

Change in condition not established. —

Claimant could not establish a change in condition for period beginning March 27, 1997, where her disability after that date was the same as that which she experienced in period from November, 1996 through February 2, 1997 which, by stipulation, she conceded was not causally connected to her industrial accident. Aramark Corp. v. Terry, 2000 Va. App. LEXIS 192 (Va. Ct. App. Mar. 14, 2000).

Employer failed to meet its § 65.2-101 burden to show a change in condition to allow termination of a workers’ compensation claimant’s temporary total disability benefits due to the claimant’s return to work by working 12 hours at a clothing store over two days about three weeks apart as the attempt was not of sufficient duration to show a change in condition; while a return to work might ordinarily be strong evidence that a claimant was capable of performing her pre-injury employment, it was not dispositive. Starbucks Coffee Co. v. Shy, 61 Va. App. 229, 734 S.E.2d 683, 2012 Va. App. LEXIS 396 (2012).

Workers’ Compensation Commission did not err in finding that the medical evidence did not reflect a change in condition resulting in a total disability from work where specialists indicated that he was relatively stable and concluded that he was capable of work as long as he avoided exposure to chemicals and substances that aggravated his symptoms. Rexha v. Harrisonburg City Pub. Schs., 2020 Va. App. LEXIS 47 (Va. Ct. App. Feb. 25, 2020).

Changes affecting compensation. —

The statutory definition of change of condition, supplanting the one provided in J.A. Jones Constr. Co. v. Martin, 198 Va. 370 , 94 S.E.2d 202 (1956), does not limit changes in condition to changes in an employee’s physical condition, allowing in addition the consideration of any change in conditions which affect the right to, amount of or duration of compensation. Mace v. Merchants Delivery Moving & Storage, 221 Va. 401 , 270 S.E.2d 717, 1980 Va. LEXIS 257 (1980).

Where an employee’s post-injury earnings were substantially below an agreed upon weekly wage after a job transfer, the workers’ compensation commission did not have to use a 52-week average to compute temporary partial disability benefits under § 65.2-502 . Fed. Mogul Friction Corp. v. Butcher, 2003 Va. App. LEXIS 478 (Va. Ct. App. Sept. 16, 2003).

Capacity to work is a “condition.” —

If the attending physician, reversing his former opinion, determines there has been a change in that condition sufficient to justify reinstatement of disability benefits, the inquiry is whether that change is causally connected with an injury suffered in an industrial accident. Absent proof of such connection, the change in condition is not compensable. King's Mkt. v. Porter, 227 Va. 478 , 317 S.E.2d 146, 1984 Va. LEXIS 217 (1984).

Changed condition does not include aggravated “mental state.” —

Commission was in error in basing award of compensation on legal conclusion that if changed condition was an aggravated “mental state” resulting from termination of compensation, it was a compensable condition. Keller Mfg. Co. v. Hoke, 215 Va. 525 , 211 S.E.2d 82, 1975 Va. LEXIS 184 (1975).

Injuries not result of “change in condition.” —

Where the injuries sustained by plaintiff in the fall did not naturally flow from a progression, deterioration or aggravation of the injury sustained in the original industrial accident, the injuries were the result of a new and separate accident, not a “change in condition” resulting from his first accident. Leonard v. Arnold, 218 Va. 210 , 237 S.E.2d 97, 1977 Va. LEXIS 180 (1977).

A change in an attending physician’s opinion concerning an employee’s ability to resume work met the criteria detailed in former § 65.1-8. Mace v. Merchants Delivery Moving & Storage, 221 Va. 401 , 270 S.E.2d 717, 1980 Va. LEXIS 257 (1980).

Ability or capacity to work different than issue of causation. —

Although in Mace v. Merchants Delivery Moving and Storage, 221 Va. 401 , 270 S.E.2d 717 (1980), the Supreme Court held that a change in an attending physician’s opinion concerning an employee’s ability to resume work meets the criteria detailed in this section, the ability or capacity to work is a different matter than the issue of causation. Amp, Inc. v. Ruebush, 10 Va. App. 270, 391 S.E.2d 879, 6 Va. Law Rep. 2321, 1990 Va. App. LEXIS 85 (1990).

A change in an attending physician’s opinion concerning an employee’s ability to resume work meets the criteria detailed in this section. This holding, however, does not alter the basic rule that an employee claiming reinstatement of disability benefits on account of a change in condition bears the burden of proving that his present condition resulted naturally and unavoidably from the accident. King's Mkt. v. Porter, 227 Va. 478 , 317 S.E.2d 146, 1984 Va. LEXIS 217 (1984).

When employee files application for reinstatement of disability benefits, two questions arise: (1) Has there been a change in the employee’s capacity to work; (2) if so, is the change due to a condition causally connected with the injury originally compensated. King's Mkt. v. Porter, 227 Va. 478 , 317 S.E.2d 146, 1984 Va. LEXIS 217 (1984).

An injured employee may “cure” an unjustified refusal of selective employment provided or procured by the employer by accepting such employment or by obtaining comparable selective employment. Timbrook v. O'Sullivan Corp., 17 Va. App. 594, 439 S.E.2d 873, 10 Va. Law Rep. 816, 1994 Va. App. LEXIS 21 (1994).

Proof of causal connection between industrial accident and disabling condition underlying the employee’s application for reinstatement of compensation due to change in condition must go beyond the realm of conjecture. If it is just as likely that the disabling condition resulted from a cause which is not compensable as it is that it resulted from an accident covered by the Workers’ Compensation Act, the employee has failed to establish the requisite causal connection. King's Mkt. v. Porter, 227 Va. 478 , 317 S.E.2d 146, 1984 Va. LEXIS 217 (1984).

Causality not in issue upon employer’s application to terminate benefits. —

With respect to an employer’s application for termination of benefits based upon a change in condition, the only question is whether the employee’s prior condition of work incapacity has changed; the question of causal connection is not in issue. King's Mkt. v. Porter, 227 Va. 478 , 317 S.E.2d 146, 1984 Va. LEXIS 217 (1984).

Cost-of-living supplement requires change of condition application. —

The statutory cost-of-living provision is not self-executing, and a claim for a cost-of-living supplement is cognizable only under the change-of-condition sections of the Virginia Workers’ Compensation Act, which require an application and a showing of eligibility by the claimant and an award by the Commission. Jewell Ridge Coal Corp. v. Wright, 222 Va. 68 , 278 S.E.2d 820, 1981 Va. LEXIS 276 (1981).

In an action challenging a decision of the Compensation Commission which awarded a worker a cost-of-living supplement and attorney fees after he returned to work from a compensable injury, the plaintiff was not entitled to reversal of the Commission’s decision for the worker’s alleged failure to file an application for a cost-of-living supplement because during oral argument the plaintiff conceded that the worker had sent a letter to the Commission stating that the plaintiff had failed to pay the cost-of-living increase and inquiring about the status of the matter; thus, the letter to the Commission constituted sufficient application for a cost-of-living supplement. Jewell Ridge Coal Corp. v. Wright, 222 Va. 68 , 278 S.E.2d 820, 1981 Va. LEXIS 276 (1981).

Economic change. —

There was credible evidence in the record to support the Virginia Workers’ Compensation Commission’s finding that an economic change occurred pursuant to § 65.2-101 , as in December 2007 and January and February 2008, the claimant’s wages decreased as a result of a job for an employer that took longer than expected to complete, through no fault of the claimant’s; economic change may, under appropriate factual circumstances, constitute a change in condition, as defined by § 65.2-101 . Atlas Van Lines & Legion Ins. Co. v. Kerr, 2011 Va. App. LEXIS 127 (Va. Ct. App. Apr. 12, 2011).

Change in condition found. —

Worker’s compensation claimant was entitled to disability benefits based on a change in condition to a previously determined compensable injury where the claimant’s treating physician initially opined that the claimant could work within stated physical limitations, but the physician subsequently determined that the claimant was medically disabled from all employment. Dominion Va. Power & Dominion Res., Inc. v. Greene, 2010 Va. App. LEXIS 105 (Va. Ct. App. Mar. 23, 2010).

Statute of limitations bar. —

Although the workers’ compensation commission awarded medical benefits “for as long as necessary after the accident” to the employee regarding the employee’s work-related right knee injury pursuant to subdivision A 1 of § 65.2-603 , the employee was still required to file a change-in-condition application within two years of the time the employee last received disability benefits, pursuant to subsection A of § 65.2-708 , to have a viable change-in-condition claim regarding the pain in the employee’s left knee. Since the employee did not file his § 65.2-101 change-in-condition application within the required two-year time period, the employee’s claim for change-in-condition benefits was time barred by subsection A of § 65.2-708 . Tricord Homes, Inc. v. Smith, 2008 Va. App. LEXIS 573 (Va. Ct. App. Dec. 30, 2008).

Burden of proof. —

In an application for a review of an award on the ground of a change in condition the burden is on the party alleging such change to prove his allegation by a preponderance of the evidence. Causey v. Napit Contractors, No. 0309-85 (Ct. of Appeals Dec. 10, 1985).

Commission not allowed unlimited discretion to readjudicate decisions. —

A “change in condition” under former § 65.1-8 did not allow the commission unlimited discretion to readjudicate its decisions. Amp, Inc. v. Ruebush, 10 Va. App. 270, 391 S.E.2d 879, 6 Va. Law Rep. 2321, 1990 Va. App. LEXIS 85 (1990).

Application of res judicata. —

Where an application for workers’ compensation benefits based on a change in condition is filed for the sole purpose of presenting additional evidence in support of a claim that has previously been denied, res judicata will bar reconsideration of the claim, but res judicata does not bar a claim for resumption of benefits when a change in condition, as contemplated by the Virginia Code, has occurred which has not been previously considered by the Commission. Lowes of Christiansburg v. Clem, 37 Va. App. 315, 557 S.E.2d 745, 2002 Va. App. LEXIS 16 (2002).

Presumption of permanent disability. —

Workers’ Compensation Commission erred in not finding that worker’s cryptococcal meningitis gave him a conclusive presumption of permanent disability. Mister Kleen Maintenance Co. v. Clark, 17 Va. App. 474, 438 S.E.2d 304, 10 Va. Law Rep. 652, 1993 Va. App. LEXIS 634 (1993).

IV.Employee.

A.In General.

“Trade,” “business,” “occupation,” “profession” defined. —

The word “trade” signifies barter and exchange, not restricted to commodities, but including transactions involving the medium of money. The word “business” implies some constant and connected employment as distinguished from “an isolated act or two.” “Occupation” is that activity in which a person, natural or artificial, is engaged with the element of a degree of permanency attached. “Profession” is the method or means pursued by person of technical or scientific training. Board of Supvrs. v. Boaz, 176 Va. 126 , 10 S.E.2d 498, 1940 Va. LEXIS 239 (1940).

Term “trade, business or occupation” refers to private business. —

The expression “trade, business or occupation” in this section relates primarily to business operations of persons and private corporations rather than to the administrative functions of a political subdivision of the State. Board of Supvrs. v. Boaz, 176 Va. 126 , 10 S.E.2d 498, 1940 Va. LEXIS 239 (1940); Anderson v. Thorington Constr. Co., 201 Va. 266 , 110 S.E.2d 396, 1959 Va. LEXIS 221 (1959).

Act is restricted to master and servant. —

It would seem clear from the history and purpose and general provisions of the Workmen’s (now Workers’) Compensation Act that the legislature did not have in mind as beneficiaries any other persons than such as are commonly understood as falling within a contractual relationship of master and servant. Board of Supvrs. v. Lucas, 142 Va. 84 , 128 S.E. 574 (1925). For exceptions to this rule, see now §§ 65.2-302 through 65.2-304 .

Test of master-servant relationship. —

Upon the question whether the relationship of master and servant exists, there are four elements which are considered: (1) selection and engagement of the servant; (2) payment of wages; (3) power of dismissal; and (4) power of control of the servant’s action. But the first, second and third of these elements are not essential to the relationship. The power of control is the most significant element bearing on the question. Stover v. Ratliff, 221 Va. 509 , 272 S.E.2d 40, 1980 Va. LEXIS 272 (1980); Hamilton Trucking v. Springer, 10 Va. App. 710, 396 S.E.2d 379, 7 Va. Law Rep. 211, 1990 Va. App. LEXIS 151 (1990).

The right of control includes not only the power to specify the result to be attained but the power to control the means and methods by which the result is to be accomplished. An employer/employee relationship exists if the party for whom the work is to be done has the power to direct the means and methods by which the other does the work; if the latter is free to adopt such means and methods as he chooses to accomplish the result, he is not an employee but an independent contractor. Better Home Servs., Inc. v. Medrano, 2000 Va. App. LEXIS 741 (Va. Ct. App. Nov. 21, 2000).

A claimant seeking benefits under the Workers’ Compensation Act bears the burden of proving that he is an employee within the definition of this section. Sheridan v. Skyline Express, Inc., No. 2520-94-4 (Ct. of Appeals April 25, 1995).

Although a claimant seeking benefits bears the burden of proving he is an employee within the definition in this section, nothing in this section or any other portion of the act requires the employee to elect the subsection or subsections under which he claims coverage; all the act requires is that the claimant’s evidence establish an entitlement to coverage. Thacker v. TNT Insulations Co., 2000 Va. App. LEXIS 507 (Va. Ct. App. July 11, 2000).

Characterization of relationship by parties not controlling. —

While written documents may be indicative of the parties’ intent and the intent of the parties is a factor to be considered, it is not determinative. The parties cannot merely designate or agree to a legal status in derogation of the relationship as established by the facts of a particular case in that the commission must look behind the agreement to determine the actual relationship and the status in fact. Better Home Servs., Inc. v. Medrano, 2000 Va. App. LEXIS 741 (Va. Ct. App. Nov. 21, 2000).

Relationship determined from facts of case. —

In determining the status of one who performs work for another, no hard and fast rule can be laid down. It must be determined from the facts of the particular case in light of well-settled principles. Richmond Newspapers, Inc. v. Gill, 224 Va. 92 , 294 S.E.2d 840, 1982 Va. LEXIS 273 (1982).

Frequency or length of employment irrelevant as to definition of “employee.” —

Any person hired by the employer to work in the usual course of the employer’s business is an “employee” under the act, regardless of how often or for how long he may be employed. Cotman v. Green, 4 Va. App. 256, 356 S.E.2d 447, 3 Va. Law Rep. 2605, 1987 Va. App. LEXIS 260 (1987).

Power of control an indicium of employment relationship. —

As a general rule, a person is an employee if he works for wages or a salary and the person who hires him reserves the power to fire him and the power to exercise control over the work to be performed. The power of control is the most significant indicium of the employment relationship; other factors merely help to elucidate the manner and degree of control. Richmond Newspapers, Inc. v. Gill, 224 Va. 92 , 294 S.E.2d 840, 1982 Va. LEXIS 273 (1982).

The right of control is the determining factor in ascertaining the parties’ status in an analysis of an employment relationship. And the right of control includes not only the power to specify the result to be attained, but the power to control the means and methods by which the result is to be accomplished. Intermodal Servs., Inc. v. Smith, 234 Va. 596 , 364 S.E.2d 221, 4 Va. Law Rep. 1560, 1988 Va. LEXIS 4 (1988).

The right of control is the determinative factor in ascertaining the parties status in an employment relationship. Howarth v. Rockingham Publishing Co., 20 F. Supp. 2d 959, 1998 U.S. Dist. LEXIS 15661 (W.D. Va. 1998).

Cab driver was an employee of a cab company where: (1) cab company had the requisite exercise over the selection and engagement of the cab driver; (2) the power to dismiss the cab driver; and (3) most importantly, the power of control over the cab driver’s actions. Purvis v. Porter Cabs, Inc., 38 Va. App. 760, 568 S.E.2d 424, 2002 Va. App. LEXIS 523 (2002).

Evidence that the employer hired the claimant to work on a full-time, hourly basis, not by the job or the day, that the owner decided which workers to assign to each job, and that the claimant was not permitted to hire subcontractors to perform his assigned work was sufficient to prove that the claimant was an employee and not an independent contractor. Chuck Bennett & Sons Heating & Air Conditioning v. Cottrell, 2003 Va. App. LEXIS 697 (Va. Ct. App. Dec. 30, 2003).

Facts supported the Virginia Workers’ Compensation Commission’s finding that a claimant was not an employee because there was no evidence that the claimant worked for a contractor under a written employment contract or that his actions were directed or controlled by another, but rather, the claimant controlled his own work and that of his employees; whether the facts brought him within the definition of an employee was a finding of fact entitled to deference. Axelson v. Pifer Constr., Inc., 2017 Va. App. LEXIS 218 (Va. Ct. App. Aug. 22, 2017).

Extent of reserved right of control may be determined by examining the performance of the parties in the activity under scrutiny. Intermodal Servs., Inc. v. Smith, 234 Va. 596 , 364 S.E.2d 221, 4 Va. Law Rep. 1560, 1988 Va. LEXIS 4 (1988).

Must have power to control both means and result to be accomplished. —

An employer-employee relationship exists only if the control reserved includes the power to control not only the result to be accomplished, but also the means and methods by which the result is to be accomplished. Richmond Newspapers, Inc. v. Gill, 224 Va. 92 , 294 S.E.2d 840, 1982 Va. LEXIS 273 (1982).

If under the contract the party for whom the work is being done may prescribe not only what the result shall be, but also direct the means and methods by which the other shall do the work, the former is an employer, and the latter an employee. But if the former may specify the result only, and the latter may adopt such means and methods as he chooses to accomplish that result, then the latter is not an employee, but an independent contractor. So the master test is the right to control the work. Richmond Newspapers, Inc. v. Gill, 224 Va. 92 , 294 S.E.2d 840, 1982 Va. LEXIS 273 (1982).

An employer-employee relationship exists if the party for whom the work is to be done has the power to direct the means and methods by which the other does the work; if the latter is free to adopt such means and methods as he or she chooses to accomplish the result, he or she is not an employee but an independent contractor. Howarth v. Rockingham Publishing Co., 20 F. Supp. 2d 959, 1998 U.S. Dist. LEXIS 15661 (W.D. Va. 1998).

There was abundant evidence to support the holding that the claimant was not an employee of the owner, but merely another construction worker who was hired by the claimant to reconstruct a school; while the owner prescribed the result of the work done, she did not prescribe the means and methods by which that result was to be achieved, and despite the fact that the owner paid the claimant for his work, the owner did not control the work or maintain any authority over the claimant. Uninsured Employer's Fund v. Jeffreys, 2016 Va. App. LEXIS 136 (Va. Ct. App. Apr. 26, 2016).

Right to discharge is an element of the power to control performance. An absolute right to discharge without cause or notice includes the power to compel obedience to instructions as given and, accordingly, is one of the earmarks of the employer-employee relationship. Richmond Newspapers, Inc. v. Gill, 224 Va. 92 , 294 S.E.2d 840, 1982 Va. LEXIS 273 (1982).

Power of control lacking by contractor over subcontractor’s employee. —

Plaintiff was employed as carpenter by company which contracted to repair equipment used by defendant. Plaintiff’s employer paid his wages and gave him orders. Defendant could not fire him. Plaintiff’s and defendant’s relationship depended upon cooperation rather than subordination. Defendant had no power of control over plaintiff, therefore he was not an employee of defendant. Tidewater Stevedoring Corp. v. McCormick, 189 Va. 158 , 52 S.E.2d 61, 1949 Va. LEXIS 158 (1949).

What constitutes an employee is a question of law, but whether the facts bring a person within the law’s designation is usually a question of fact. Stonega Coke & Coal Co. v. Sutherland, 136 Va. 489 , 118 S.E. 133 , 1923 Va. LEXIS 100 (1923).

When the evidence concerning what constitutes the “usual course” of the employer’s trade, business, occupation, or profession or the “casualness” of the claimant’s work is in conflict, it raises a question of fact. When there is no such conflict, what constitutes a covered employee under the Workmen’s (now Workers’) Compensation Act is a question of law. McCoy v. Mims, 219 Va. 616 , 248 S.E.2d 817, 1978 Va. LEXIS 221 (1978).

Whether there exists a relationship of master and servant, rather than one of independent contractor or subcontractor, is a question of law and not of fact. Stover v. Ratliff, 221 Va. 509 , 272 S.E.2d 40, 1980 Va. LEXIS 272 (1980).

When there are no material facts in dispute, the issue of whether an individual is an “employee” within the meaning of the act is a question of law. Humphries v. Thomas, 244 Va. 571 , 422 S.E.2d 755, 9 Va. Law Rep. 553, 1992 Va. LEXIS 113 (1992) (decided under former § 65.1-4).

Mixed question of law and fact. —

The question whether an individual is an employee entitled to compensation benefits under the Workers’ Compensation Act or an independent contractor is a mixed question of law and fact. Carey v. Grayson Mitchell, Inc., No. 1173-89-2 (Ct. of Appeals Aug. 28, 1990).

Finding of fact. —

Virginia Workers’ Compensation Commission exercised its discretion and did carefully consider whether a claimant was an employee under the statute, and thus, the denial of the claimant’s motion to vacate and reconsider was a factual finding that the claimant was not an employee. Axelson v. Pifer Constr., Inc., 2017 Va. App. LEXIS 218 (Va. Ct. App. Aug. 22, 2017).

Acquisition of employee status by minor. —

An employee under the act certainly can be a minor but such a minor acquires employee status only if the employer exercises the requisite control over him or her under a traditional common-law analysis of the master/servant relationship. Howarth v. Rockingham Publishing Co., 20 F. Supp. 2d 959, 1998 U.S. Dist. LEXIS 15661 (W.D. Va. 1998).

Act applies to infants, whether or not lawfully employed. —

The new and additional liability imposed upon the employer by this title is in aid of the Child Labor Law, rather than opposed to it; infants, whether lawfully employed or not, are within the language and intent of the Act, and the remedy afforded by the Act is exclusive of all other remedies. Chalkley v. Nolde Bros., 184 Va. 553 , 35 S.E.2d 827, 1945 Va. LEXIS 176 (1945).

No exception because of family relationship. —

The definition of employee makes no exception because of family relationship between employer and employee. See Glassco v. Glassco, 195 Va. 239 , 77 S.E.2d 843, 1953 Va. LEXIS 193 (1953).

Volunteer workers excluded. —

Excluded from the definition of “employees” are workers who neither receive nor expect to receive remuneration of any kind for their services. Charlottesville Music Center v. McCray, 215 Va. 31 , 205 S.E.2d 674, 1974 Va. LEXIS 227 (1974).

When services or labor are rendered voluntarily without a promise of compensation or remuneration of any kind, express or implied, then the one providing the services or labor has supplied them gratuitously, and is not covered by workmen’s (now workers’) compensation. Charlottesville Music Center v. McCray, 215 Va. 31 , 205 S.E.2d 674, 1974 Va. LEXIS 227 (1974).

Prisoner not employee. —

Prisoners in Virginia, who are not on a work release program, are not capable of making a true contract of hire with the Commonwealth or any of its agencies, therefore, they are not employees. Commonwealth v. Woodward, 249 Va. 21 , 452 S.E.2d 656, 1995 Va. LEXIS 8 (1995).

Convicts on work release. —

There is nothing in this section to indicate that once a convict on work release has started his day’s work that he is controlled in his activities other than by his employer. His pay is the same as other employees doing like work and is obviously afforded the benefits of the Virginia Workmen’s (now Workers’) Compensation law as is the case of other employees. Owens v. Swift Agric. & Chem. Corp., 477 F. Supp. 91, 1979 U.S. Dist. LEXIS 9887 (E.D. Va.), aff'd, 612 F.2d 1309 (4th Cir. 1979).

Burden of proof. —

Injured worker who was the proponent of the issue of whether he was an employee of the employer had the burden of producing evidence that an employment relationship existed between him and the company who hired him. Craddock Moving & Storage Co. v. Settles, 16 Va. App. 1, 427 S.E.2d 428, 9 Va. Law Rep. 1026, 1993 Va. App. LEXIS 44 (1993), aff'd, 247 Va. 165 , 440 S.E.2d 613, 10 Va. Law Rep. 935, 1994 Va. LEXIS 25 (1994).

The workers’ compensation act covers employees but not independent contractors and this distinction must be determined from the facts of each case with the burden upon the person seeking benefits to prove the relationship contemplated by the act. Better Home Servs., Inc. v. Medrano, 2000 Va. App. LEXIS 741 (Va. Ct. App. Nov. 21, 2000).

Assistant engaged by employee. —

Whether a person engaged by an employee to assist him in the performance of the duties of the employer is also an employee depends upon whether the principal employer has knowledge of such employment and consents thereto. This knowledge may be actual or imputed. The consent may be express or implied. Chalkley v. Nolde Bros., 184 Va. 553 , 35 S.E.2d 827, 1945 Va. LEXIS 176 (1945).

Loaned employee. —

The Act is silent with reference to the status of a loaned employee; therefore, it will be assumed that the common-law rule applied as to that point. Ideal Steam Laundry v. Williams, 153 Va. 176 , 149 S.E. 479 , 1929 Va. LEXIS 254 (1929).

Under the evidence as the jury could appraise it the decedent continued to be the employee of an independent contractor and was not the loaned employee of the defendant at the time of the accident. Kramer v. Kramer, 199 Va. 409 , 100 S.E.2d 37, 1957 Va. LEXIS 205 (1957).

Because an employee executed an agreement with a labor broker wherein the employee was told that the employee was the broker’s employee and not that of any client, and because the employee did not consent to becoming the employee of a client, the broker retained its status as the employee’s sole employer and was liable for compensation benefits under § 65.2-101 . Smith v. McMillan Pers. Serv., 48 Va. App. 208, 629 S.E.2d 707, 2006 Va. App. LEXIS 213 (2006).

Injured employee not acting as employee. —

Where employee requested to remain and was informed that he was “off the clock,” that he would not be paid for or receive benefits in return for remaining on the job site and his motivations for spending time off duty with his friend and co-worker were purely personal, the evidence supports the commission’s finding that injured employee did not stay to serve any purpose of his employer, and therefore, he was not acting as an employee when the injury occurred, but was, at best, a volunteer. Jackson v. Ratcliff Concrete Company, 8 Va. App. 592, 382 S.E.2d 494, 6 Va. Law Rep. 155, 1989 Va. App. LEXIS 108 (1989).

Compensation under this Act does not preclude suit upon Jones Act or general maritime law. —

An employee injured aboard his employer’s ship on navigable waters may, on the allegation that he is a seaman, sue his employer for damages upon the Jones Act or the general maritime law after deliberately obtaining compensation under Virginia’s industrial statute or under the Longshoremen’s and Harbor Workers’ Act, on the allegation that he is not a seaman, but if the plaintiff succeeds in his suit, the employer may recoup the amounts already paid by deducting them when satisfying the judgment. In the event the compensation was paid by one insurer and the judgment becomes payable by another, the employer as the legal debtor in both instances may retain from the settlement of the judgment the sums necessary to reimburse the compensation carrier. Biggs v. Norfolk Dredging Co., 360 F.2d 360, 1966 U.S. App. LEXIS 6654 (4th Cir. 1966).

Exempted employers must give employees notice of intention to come under Act. —

It is the manifest purpose of the rules of the Compensation Commission promulgated pursuant to the authority granted by former § 65.1-18 (now § 65.2-201 ) to require an employer of the class excluded by this section, including farmers, desiring to come within the purview of the Workmen’s (now Workers’) Compensation Act, to so notify his employees, either by posting notices of his intention in a place or places where they are likely to be seen by the employees, or, where such posting is not practicable, to give such employees actual notice of his intention. Any employee then has the right to reject the Act by so notifying the Compensation Commission, and in the absence of such notification the employees are presumed to have elected to be bound by the Act. Dey v. Logan, 175 Va. 68 , 7 S.E.2d 102, 1940 Va. LEXIS 147 (1940).

Domestic servants. —

The provision in the act excluding coverage for domestic servants, this section, does not affect the determination of a covered employee’s average weekly wages. First Va. Banks, Inc. v. McNeil, 8 Va. App. 342, 381 S.E.2d 357, 6 Va. Law Rep. 1, 1989 Va. App. LEXIS 97 (1989) (decided under former § 65.1-28).

Real estate agent held to be an employee. —

Where real estate agent’s employment contract did not contain a provision expressly stating that the agent would not be treated as an employee for federal income tax purposes, real estate agent was an employee for purposes of the Workers’ Compensation Act even though the employment contract stated the agent would “otherwise be deemed to be an independent contractor and not a servant, employee or partner of Broker.” Barr v. Town & Country Properties, Inc., 240 Va. 292 , 396 S.E.2d 672, 1990 Va. LEXIS 123 (1990) (decided under former § 65.1-4.3).

Claimant held to be employee. —

Claimant was in the service of lumber company where the company’s supervisor instructed claimant when to take breaks, including his lunch, and where to position his trailer for loading logs. Furthermore when claimant could not properly position trailer, the supervisor positioned it for him. James v. Wood Prods., 15 Va. App. 754, 427 S.E.2d 224, 9 Va. Law Rep. 888, 1993 Va. App. LEXIS 36 (1993).

Virginia Workers’ Compensation Commission did not err in finding that a workers’ compensation claimant was an “employee” of a company under the Virginia Workers’ Compensation Act, § 65.2-101 , and not an independent contractor because the company controlled claimant’s work as it would any other employee doing similar jobs, and the company provided most of the tools and all of the materials that claimant needed to complete his tasks; the parties did not have a written contract, the company docked claimant’s pay unilaterally if the job took more hours than expected, and claimant’s work was part of the company’s usual course of business. Sherman & Sherman Props. v. Long, 2011 Va. App. LEXIS 128 (Va. Ct. App. Apr. 12, 2011).

“Employee” for purposes of exclusivity. —

Where a widow’s husband was killed in the course of his employment and she filed a wrongful death action against his employer and its subcontractors, the “employee,” as defined in § 65.2-101 , was the husband; as subsection A of § 65.2-307 precludes “all other rights and remedies” available to the personal representative of an employee who is covered by Virginia’s Workers’ Compensation Act, the widow’s claim was barred. Giordano v. McBar Indus., 284 Va. 259 , 729 S.E.2d 130, 2012 Va. LEXIS 138 (2012).

B.Contract of Hire.

Editor’s note.

Some of the cases annotated below were decided under former Title 65.1 or prior law.

“Hire” connotes payment of some kind. Charlottesville Music Center v. McCray, 215 Va. 31 , 205 S.E.2d 674, 1974 Va. LEXIS 227 (1974).

A “contract of hire” is usually defined as an agreement in which an employee provides labor or personal services to an employer for wages or remuneration or other thing of value supplied by the employer. Charlottesville Music Center v. McCray, 215 Va. 31 , 205 S.E.2d 674, 1974 Va. LEXIS 227 (1974).

When implied contract of hire exists. —

An implied contract of hire exists where one party has rendered services or labor of value to another under circumstances which raise the presumption that the parties intended and understood that they were to be paid for, or which a reasonable man in the position of the person receiving the benefit of the services or labor would or ought to know that compensation or remuneration of some kind was to be exchanged for them. Charlottesville Music Center v. McCray, 215 Va. 31 , 205 S.E.2d 674, 1974 Va. LEXIS 227 (1974).

Finding of Commission on existence of employment contract is final. —

The Compensation Commission found that from the evidence as a whole, claimant at the time he received his injury was in fact an employee of the defendant company. This finding involved a finding of the existence of a contract, express or implied, between the claimant and the defendant company, which finding was conclusive and binding unless obtained by fraud, or contradicted by and inconsistent with other findings of fact in the case. Stonega Coke & Coal Co. v. Sutherland, 136 Va. 489 , 118 S.E. 133 , 1923 Va. LEXIS 100 (1923).

Illegal alien cannot be employed lawfully in United States, and therefore, claimant was not eligible to receive compensation benefits as an “employee” under the Act because his purported contract of hire was void and unenforceable. Granados v. Windson Dev. Corp., 257 Va. 103 , 509 S.E.2d 290, 1999 Va. LEXIS 22 (1999).

The rule that an illegal alien cannot enter into a lawful contract of employment applies even if the alien made no misrepresentation concerning his status and even if the employer made no inquiry concerning his status. Mendoza-Garcia v. Hwi, 2001 Va. App. LEXIS 158 (Va. Ct. App. Mar. 27, 2001).

The case determining that the workers’ compensation commission has no jurisdiction over claims by illegal aliens did not overrule a prior judicial decision, establish a new principle of law, or construe new statutory language; that decision, therefore, may be applied retroactively and properly controls all subsequent decisions. Alvarado v. Krajewski, 2001 Va. App. LEXIS 2 (Va. Ct. App. Jan. 9, 2001).

Because a claimant was an unauthorized alien at the time of his putative contract of hire with the employer and because the contract was, therefore, void and unenforceable, the claimant was not entitled to disability benefits. The fact that the claimant had married an American citizen and might qualify as a “permanent resident” did not require a different result where the claimant had failed to prove that he satisfied the statutory requirements to be a citizen or an alien lawfully admitted for permanent residence. Rios v. Ryan, Inc. Cent., 35 Va. App. 40, 542 S.E.2d 790, 2001 Va. App. LEXIS 99 (2001).

Amendment extending coverage to illegal aliens not retroactive. —

The amendment to this section extending coverage to aliens whether lawfully or unlawfully employed did not apply to a case arising prior to the effective date of the amendment. Mendoza-Garcia v. Hwi, 2001 Va. App. LEXIS 158 (Va. Ct. App. Mar. 27, 2001).

No implied contract of hire. —

Where plaintiff installed carpet for customers of defendant carpet salesman, the mere circumstance of this relationship did not raise a presumption that the parties intended and understood that plaintiff would be compensated in exchange for making a trip to pick up a trailer for defendant; thus there was no implied contract of hire. Consequently, plaintiff was not an “employee” within the purview of the act. Humphries v. Thomas, 244 Va. 571 , 422 S.E.2d 755, 9 Va. Law Rep. 553, 1992 Va. LEXIS 113 (1992) (decided under former § 65.1-4).

Claimant failed to establish “contract of hire.” —

Where the relationship between the claimant and business owner was one of reciprocal gratuity, terminable upon dissatisfaction, involving no specific employment obligations, no relationship between service and compensation, and no right of control over the performance of the claimant’s work, claimant failed to establish a “contract of hire” within the meaning of this section. Behrensen v. Whitaker, 10 Va. App. 364, 392 S.E.2d 508, 6 Va. Law Rep. 2457, 1990 Va. App. LEXIS 99 (1990).

C.Independent Contractors.

Editor’s note.

Some of the cases annotated below were decided under former Title 65.1 or prior law.

Test of an independent contractor. —

See Craig v. Doyle, 179 Va. 526 , 19 S.E.2d 675, 1942 Va. LEXIS 244 (1942).

An employer-employee relationship exists if the party for whom the work is to be done has the power to direct the means and methods by which the other does the work. If the latter is free to adopt such means and methods as he chooses to accomplish the result, he is not an employee but an independent contractor. Intermodal Servs., Inc. v. Smith, 234 Va. 596 , 364 S.E.2d 221, 4 Va. Law Rep. 1560, 1988 Va. LEXIS 4 (1988).

Written declaration of parties as evidence of relationship. —

A contract provision that one of the parties is a “separate independent contractor” is not self-executing, but the nature of the relationship the parties intended to create is one of the factors to be considered, and a written declaration subscribed by the parties is relevant evidence of that intent. One person may elect to assume a servant’s status while another prefers to be his own master. When courts can determine that choice, they should accord it due deference. Richmond Newspapers, Inc. v. Gill, 224 Va. 92 , 294 S.E.2d 840, 1982 Va. LEXIS 273 (1982).

Employers cannot simply designate persons as employees or independent contractors; what the parties to such a contract call their relationship is but one factor to consider in determining the status of employee versus that of independent contractor, and the right of control is the determinative factor in ascertaining the parties’ status. Howarth v. Rockingham Publishing Co., 20 F. Supp. 2d 959, 1998 U.S. Dist. LEXIS 15661 (W.D. Va. 1998).

Independent contractors or subcontractors are not countable as employees within the meaning of the Workers’ Compensation Act. The Act applies to the contractual relationship of master and servant. Richmond Newspapers, Inc. v. Gill, 224 Va. 92 , 294 S.E.2d 840, 1982 Va. LEXIS 273 (1982).

Whether a person is an employee or independent contractor is governed by common law, not by an express provision of the workers’ compensation law. Richmond Newspapers, Inc. v. Gill, 224 Va. 92 , 294 S.E.2d 840, 1982 Va. LEXIS 273 (1982).

The classification of a person as an employee or an independent contractor is governed, not by any express provision of the Workers’ Compensation Act, but by common law, and the courts must look to it in determining who is an employee. Howarth v. Rockingham Publishing Co., 20 F. Supp. 2d 959, 1998 U.S. Dist. LEXIS 15661 (W.D. Va. 1998).

Rights as between owners and independent contractors not changed by Act. —

The Act does not undertake to change, as between themselves, the rights of owners and independent contractors. It leaves that relationship as it was at common law, which must be looked to in determining who is master and who is servant. Richmond Newspapers, Inc. v. Gill, 224 Va. 92 , 294 S.E.2d 840, 1982 Va. LEXIS 273 (1982).

Chauffeur, who drove a limousine which was owned, fueled and repaired by employer, was an employee rather than an independent contractor. Corporate Limousine Serv., Inc. v. Gomez, No. 0615-92-4 (Ct. of Appeals Jan. 12, 1993).

Truck driver engaged by Highway Department (now Department of Transportation) at fixed sum per hour for himself and his truck was held under the facts established to be an employee of the Highway Department and not an independent contractor. Phillips v. Brinkley, 194 Va. 62 , 72 S.E.2d 339, 1952 Va. LEXIS 207 (1952).

Truck driver who entered lease agreement with corporation was independent contractor. —

Evidence supported finding that truck driver, who entered into a lease agreement whereby a corporation leased his tractor trailer for exclusive use in the conduct of its business, was an independent contractor, where the lease merely required the corporation to compensate him for the services of any driver who actually hauled a load in his vehicle. Carey v. Grayson Mitchell, Inc., No. 1173-89-2 (Ct. of Appeals Aug. 28, 1990).

Statutory remedies available to independent marine contractor. —

Libellant, an independent marine surveyor, was an independent contractor, and was not limited to compensation under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq., or the Virginia Workmen’s (now Workers’) Compensation Act. Noel v. Isbrandtsen Co., 179 F. Supp. 325, 1959 U.S. Dist. LEXIS 2377 (D. Va. 1959), aff'd, 287 F.2d 783, 1961 U.S. App. LEXIS 5135 (4th Cir. 1961).

Express limitation on right to terminate. —

While an employer-employee relationship may be created by contract notwithstanding express limitations upon the employer’s right to terminate the relationship, such limitations are more characteristic of contracts negotiated by independent contractors. Richmond Newspapers, Inc. v. Gill, 224 Va. 92 , 294 S.E.2d 840, 1982 Va. LEXIS 273 (1982).

Where the work consisted of the hauling of property, the question of who furnished the truck was subordinate to the question of who had the power of general control of the employee’s actions in determining who were employees and who were independent contractors. Stover v. Ratliff, 221 Va. 509 , 272 S.E.2d 40, 1980 Va. LEXIS 272 (1980).

Worker held independent contractor. —

Worker was independent contractor rather than employee where worker operated separate business entity through which he supplied trucks and drivers to employer in accordance with lease agreement, reported money which employer gave him to Internal Revenue Service as “nonemployee compensation,” and retained ultimate right of control of drivers. Smith v. Charles G. Crews Sons, No. 0246-88-3 (Ct. of Appeals March 7, 1989).

Where the record clearly established that alleged employer exercised no control over claimant or his work, primarily provided unrelated administrative services for claimant, and did not pay him a salary or wages nor did it have the power to fire him, credible evidence supported the Workers’ Compensation Commission’s finding that claimant was not an employee but was an independent contractor. Whitlock v. Whitlock Mechanical/Check Servs., Inc., 25 Va. App. 470, 489 S.E.2d 687, 1997 Va. App. LEXIS 563 (1997).

Workers’ compensation claimant was an independent contractor and was not within the scope of the Virginia Workers’ Compensation Act, § 65.2-101 et seq., as he maintained the right to control his work in that: (1) he approached the employer about doing yard work and other odd jobs, with a business card referring to his business; (2) the employer gave the claimant general instructions about performing the work, but it was up to the claimant to decide how the tasks would be accomplished; (3) the employer did not supervise the claimant’s work; (4) the claimant set his own schedule, kept his own time records, and was permitted to work for others; and (5) although the claimant used some of his employer’s tools, he also used some of his own tools. Darby v. Harvey, 2003 Va. App. LEXIS 366 (Va. Ct. App. June 24, 2003).

Finding that an independent contractor was an employee for workers’ compensation purposes was inappropriate because the contractor prosecuted and directed the work; he used only his chosen methods to accomplish it; he provided the instrumentalities, supplies, and tools for his work; he alone reached agreement as to what tattoos would be inscribed; and the company’s owner had no list of rules involving breaks, or even hours, of the contractor’s work. Creative Designs Tattooing Assocs. v. Estate of Parrish, 56 Va. App. 299, 693 S.E.2d 303, 2010 Va. App. LEXIS 212 (2010).

Workers’ Compensation Commission did not err in determining that, at the time of a construction site accident, the claimant was an independent contractor, and therefore not entitled to an award of benefits under the Workers’ Compensation Act, where the foreman did not tell the claimant how to perform the job, the claimant used his own equipment and tools for the project, the claimant could determine his schedule and the hours that he worked, and the claimant considered himself an independent contractor. Kirtley v. Cooper, 2017 Va. App. LEXIS 268 (Va. Ct. App. Oct. 31, 2017).

Employment relationship not established. —

The fact that independent contractor would tell plaintiff truck driver when and where to pick up a load, and when and where to deliver it is not sufficient control to establish an employment relationship. Penn v. Virginia Int'l Terms., Inc., 819 F. Supp. 514, 1993 U.S. Dist. LEXIS 14972 (E.D. Va. 1993).

Worker held employee. —

Where real estate agent’s employment contract did not contain a provision expressly stating that the agent would not be treated as an employee for federal income tax purposes, real estate agent was an employee for purposes of the Workers’ Compensation Act even though the employment contract stated the agent would “otherwise be deemed to be an independent contractor and not a servant, employee or partner of Broker.” Barr v. Town & Country Properties, Inc., 240 Va. 292 , 396 S.E.2d 672, 1990 Va. LEXIS 123 (1990).

Evidence supported Commission’s finding that part-time security guard was an employee of appellant, rather than an independent contractor. Gipson's, Ltd. v. Prince, 1999 Va. App. LEXIS 657 (Va. Ct. App. Dec. 7, 1999).

Even though his employer did not, in fact, dictate precisely how or during what hours claimant was to obtain and complete insulation jobs, the evidence as a whole established indicia of a retained power of control sufficient to compel the conclusion that the claimant was an employee as a matter of law where the claimant had no employment contract, placing him in the legal status of an at-will employee who could be fired at any time for any reason or no reason, the claimant was paid wages for his work, the employer withheld taxes from those wages, paid claimant’s workers’ compensation premiums and union dues and issued claimant a W-2 Form for each tax year, the employer provided claimant with a vehicle and insured that vehicle, the claimant purchased supplies in the name of the employer which were charged to the employer’s account and reflected in the profit and loss statement filed by the employer with its income taxes, the employer received all payments for work done by the claimant and, when the claimant worked for another company, he gave the payment he received to be deposited in the employer’s account. Thacker v. TNT Insulations Co., 2000 Va. App. LEXIS 507 (Va. Ct. App. July 11, 2000).

Evidence supported the Workers’ Compensation Commission’s finding that the claimant was an employee, rather than an independent contractor, as the payment of wages, alone, was not the determinative factor, and the employer exercised a significant amount of control over the claimant. Diversified Tech., LLC v. Pancoast, 2002 Va. App. LEXIS 729 (Va. Ct. App. Dec. 10, 2002).

Evidence that a home improvement company provided a worker with business cards which bore its name, scheduled jobs for the worker, and occasionally directed his work was sufficient to support the Virginia Workers’ Compensation Commission’s decision that the worker was an employee, not an independent contractor. North Star Home Improvement, Inc. v. Heddings, 2004 Va. App. LEXIS 81 (Va. Ct. App. Feb. 17, 2004).

Notwithstanding a carpenter’s election to make his own withholding tax payments from his hourly wages, evidence that a construction company’s owner retained the right to control and did control the method and means of the work the carpenter performed supported a finding that he was an employee under § 65.2-101 . Dillon Constr. & Accident Fund Ins. Co. of Am. v. Carter, 55 Va. App. 426, 686 S.E.2d 542, 2009 Va. App. LEXIS 568 (2009).

D.Municipal Employees.

Editor’s note.

Some of the cases annotated below were decided under former Title 65.1 or prior law.

Definition of employees of a municipal corporation is express and explicit and may not be added to or subtracted from. In the instant case claimant’s employer was an independent contractor and not an officer or employee of the city. City of Portsmouth v. Daniels, 157 Va. 614 , 162 S.E. 324 , 1932 Va. LEXIS 316 (1932).

High constable of Richmond and his deputies are employees of the city, not of the State. Even though not mentioned specifically in the statute, the high constable is clearly the kind of officer contemplated by the legislature in its enumeration of municipal employees, whether or not he is an “officer of the State” as that term has been used in other contexts. City of Richmond v. Johnson, 202 Va. 33 , 115 S.E.2d 910, 1960 Va. LEXIS 187 (1960).

Auxiliary police coverage. —

The individual, not having been appointed an auxiliary police officer by the city’s chief of police, was not a member of the city’s auxiliary police force within the City Code, and thus, had not been extended workers’ compensation benefits under the City Code. Therefore, she did not meet the definition of “employee” under the Act. City of Va. Beach Police Dep't v. Compton-Waldrop, 252 Va. 302 , 477 S.E.2d 514, 1996 Va. LEXIS 113 (1996).

Employment relationship. —

Virginia Workers’ Compensation Commission properly found that a decedent was an employee of a county, rather than a town, for the purposes of payment of workers’ compensation benefits because: (1) the county supervised the decedent, controlled the method and manner of the decedent’s work, and oversaw the decedent’s training; and (2) the town’s control of the decedent was essentially limited to serving as a payroll agent for the county. County of Warren v. Donahoe, 2008 Va. App. LEXIS 24 (Va. Ct. App. Jan. 15, 2008).

E.Sole Proprietors and Partners.

Editor’s note.

Some of the cases annotated below were decided under former Title 65.1 or prior law.

A sole proprietor may obtain workers’ compensation coverage as an “employee” under the Workers’ Compensation Act. Whitlock v. Whitlock Mechanical/Check Servs., Inc., 25 Va. App. 470, 489 S.E.2d 687, 1997 Va. App. LEXIS 563 (1997).

Determination of sole proprietor’s status. —

A sole proprietor may also elect to be an employee covered by the act. Whether a sole proprietor who does not so elect is an employee or an independent contractor depends upon the nature of the relationship, particularly whether the person who hires him or her retains the right to control the work to be performed. Metropolitan Cleaning Corp. v. Crawley, 14 Va. App. 261, 416 S.E.2d 35, 8 Va. Law Rep. 2570, 1992 Va. App. LEXIS 112 (1992).

Workers’ compensation commission properly held that the employee was the sole proprietor of the business and that § 65.2-101 required the employee to give direct notice of his injury to the insurer in order to obtain benefits. Melkersen v. New Mkt. Metalcraft, Inc., 2002 Va. App. LEXIS 451 (Va. Ct. App. Aug. 6, 2002).

Independent contractor who failed to elect coverage not entitled to sole proprietor benefits. —

Claimant was an independent contractor who failed to properly elect coverage under the statutes, and therefore, was not entitled to benefits as a sole proprietor. Whitlock v. Whitlock Mechanical/Check Servs., Inc., 25 Va. App. 470, 489 S.E.2d 687, 1997 Va. App. LEXIS 563 (1997).

Sole shareholder and officer of employer not equivalent to sole proprietor or partner. —

Where a claimant completed an employer’s accident report almost two years after the accident, the Virginia Workers’ Compensation Commission properly found that he met § 65.2-600 ’s notice requirement, because the employer’s president and director — i.e., the claimant — received immediate and actual notice of the accident and injury. He was not obliged to file a notice of accident directly with the carrier “as soon as practicable” under § 65.2-101 , since that statute was limited to sole proprietors and partners who elected to be covered as employees. B & H Constr., Inc. v. Baker, 2006 Va. App. LEXIS 153 (Va. Ct. App. Apr. 25, 2006).

Question concerning insurance policy’s coverage of other partner properly invoked commission’s jurisdiction. —

Where an application for workers’ compensation coverage was completed by a partner on behalf of the partnership, the application contained an express election to include both partners as employees under the workers’ compensation coverage of the partnership as allowed by this section, a policy was then issued to the partnership, and the question before the commission concerned whether the insurance policy covered the other partner’s stipulated, compensable injury, the commission’s jurisdiction was properly invoked. Ace Metal Fabricators v. Counts, No. 0613-87-2 (Ct. of Appeals Feb. 26, 1988).

Common-law right to sue abrogated. —

A general partner’s statutory election to be covered as an employee by the Virginia Workers’ Compensation Act abrogated his common-law right to sue the owner of a project for injuries sustained while working on the project. Counts v. Stone Container Corp., 239 Va. 152 , 387 S.E.2d 481, 6 Va. Law Rep. 1109, 1990 Va. LEXIS 8 (1990).

In binding partners to the provisions of former § 65.1-40 (now § 65.2-307 ) by way of former § 65.1-4.2 (see now subdivision 1 n under the paragraph defining “Employee”), the General Assembly considered that any insurance premiums paid by a partnership for individual coverage of its partners would ultimately be reflected in the cost of doing the various jobs on which the partners might be injured. Counts v. Stone Container Corp., 239 Va. 152 , 387 S.E.2d 481, 6 Va. Law Rep. 1109, 1990 Va. LEXIS 8 (1990).

F.Employees of Independent Contractors.

Editor’s note.

Some of the cases annotated below were decided under former Title 65.1 or prior law.

Section preserves right to maintain action at common law. —

The decisive factor in making the statutory employer determination under former § 65.1-30 (now § 65.2-302 ) is whether the work being performed by the injured workman was part of the trade, business or occupation of the general contractor. If the work being performed was not a part of the general contractor’s trade, business or occupation, then the general contractor is not a statutory employer under former § 65.1-40 (now § 65.2-307 ) and is not liable for workmen’s (now workers’) compensation. Furthermore, if the general contractor is not a statutory employer, the injured workman’s right to maintain an action at common law is preserved by this section. Slusher v. Paramount Warrior, Inc., 336 F. Supp. 1381, 1971 U.S. Dist. LEXIS 10776 (W.D. Va. 1971).

If a general contractor contracts with another contractor to perform work which is not a part of the general contractor’s trade, business or occupation, that other contractor is an independent contractor within the meaning of the Act, and under this section, workmen employed by the other contractor are not precluded from maintaining a common-law action against the general contractor. Slusher v. Paramount Warrior, Inc., 336 F. Supp. 1381, 1971 U.S. Dist. LEXIS 10776 (W.D. Va. 1971).

Former § 65.1-5 provides, in essence, that the mere fact a business owner engages an independent contractor does not make that independent contractor’s employees statutory employees of the owner. Henderson v. Central Tel. Co., 233 Va. 377 , 355 S.E.2d 596, 3 Va. Law Rep. 2494, 1987 Va. LEXIS 203 (1987).

Former § 65.1-5 must be read and reconciled with former §§ 65.1-29 through 65.1-31 (now § 65.2-302 ). Anderson v. Thorington Constr. Co., 201 Va. 266 , 110 S.E.2d 396, 1959 Va. LEXIS 221 (1959); Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 1976 Va. LEXIS 223 (1976).

Former § 65.1-5 must be reconciled with former § 65.1-29 (now § 65.2-302 ). Holt v. Bowie, 343 F. Supp. 962, 1972 U.S. Dist. LEXIS 13479 (W.D. Va. 1972).

Former § 65.1-5 must be read and reconciled with provisions of former § 65.1-30 (now § 65.2-302 ). Smith v. Weber, 3 Va. App. 379, 350 S.E.2d 213, 3 Va. Law Rep. 1114, 1986 Va. App. LEXIS 372 (1986).

Workmen’s (now workers’) compensation liability attaches to employer who contracts out work generally done by himself. —

There is a distinction between an owner or employer who contracts out work which he himself generally does perform or which in the ordinary course of his particular trade or business companies similarly situated actually do or could be expected to perform, and an owner or employer who contracts out work which he does not or never could be expected to perform. In the first situation liability of the owner under the Workmen’s (now Workers’) Compensation Act would attach; in the second case it would not. Holt v. Bowie, 343 F. Supp. 962, 1972 U.S. Dist. LEXIS 13479 (W.D. Va. 1972).

Subcontractor’s employees. —

The fact that laborers were provided by a personal agency and paid by the agency does not prevent their being the employees of subcontractor. Uninsured Employer's Fund v. Mayfield, 1995 Va. App. LEXIS 809 (Va. Ct. App. Nov. 7, 1995).

G.Casual Employees.

Editor’s note.

Some of the cases annotated below were decided under former Title 65.1 or prior law.

“Casual” imports impermanence and has been contrasted with, or distinguished from, “casual,” “constant,” “important,” “material,” “regular,” and “stated,” and also contrasted with the phrase “of a casual nature.” Board of Supvrs. v. Boaz, 176 Va. 126 , 10 S.E.2d 498, 1940 Va. LEXIS 239 (1940).

An employment cannot be said to be casual where it is in the usual course of the trade, business or occupation of the employer. But it is casual when not permanent or periodically regular, but occasional, or by chance, and not in the usual course of the employer’s trade or business. Hoffer Bros. v. Smith, 148 Va. 220 , 138 S.E. 474 , 1927 Va. LEXIS 223 (1927); Board of Supvrs. v. Boaz, 176 Va. 126 , 10 S.E.2d 498, 1940 Va. LEXIS 239 (1940).

Even though a claimant under the Workmen’s (now Workers’) Compensation Act was a casual employee, this does not defeat his claim if such employment was in the usual course of the trade, business, occupation or profession of the employer. Board of Supvrs. v. Boaz, 176 Va. 126 , 10 S.E.2d 498, 1940 Va. LEXIS 239 (1940).

The test is the nature of the employment and not the nature of the contract. Hoffer Bros. v. Smith, 148 Va. 220 , 138 S.E. 474 , 1927 Va. LEXIS 223 (1927); Board of Supvrs. v. Boaz, 176 Va. 126 , 10 S.E.2d 498, 1940 Va. LEXIS 239 (1940).

Employee not necessarily covered even if not casual. —

Even though a claimant is not a casual employee, he is excluded from coverage of the Act unless the work he did was in the usual course of the trade, business, occupation, or profession of the employer. Thus where the work a carpenter did in remodeling a riverfront cabin for a farmer was in no way connected with farmer’s usual occupation, although it might be fair to say that carpenter’s work was not casual and that the farmer retained control over the work product (as distinguished from work methods), carpenter who fell off scaffolding and was injured, was not an employee covered by the Act. McCoy v. Mims, 219 Va. 616 , 248 S.E.2d 817, 1978 Va. LEXIS 221 (1978).

Question of fact or law. —

When the evidence concerning what constitutes the “usual course” of the employer’s trade, business, occupation, or profession or the “casualness” of the claimant’s work is in conflict, it raises a question of fact. When there is no such conflict, what constitutes a covered employee under the Workmen’s (now Workers’) Compensation Act is a question of law. McCoy v. Mims, 219 Va. 616 , 248 S.E.2d 817, 1978 Va. LEXIS 221 (1978).

One engaged by the janitor of a courthouse to repair a window was a casual employee. Board of Supvrs. v. Boaz, 176 Va. 126 , 10 S.E.2d 498, 1940 Va. LEXIS 239 (1940); Anderson v. Thorington Constr. Co., 201 Va. 266 , 110 S.E.2d 396, 1959 Va. LEXIS 221 (1959).

H.Regularly in Service Less Than Three Employees.

Editor’s note.

Some of the cases annotated below were decided under former Title 65.1 or prior law.

In determining whether an employer has three or more employees “regularly in service,” the number of persons used to carry out the established mode of performing the work of the business is determinative, even though the work may be recurrent instead of constant. Cotman v. Green, 4 Va. App. 256, 356 S.E.2d 447, 3 Va. Law Rep. 2605, 1987 Va. App. LEXIS 260 (1987).

Part-time as well as full-time employees “regularly in service” must be considered in determining whether an employer has at least three employees. Cotman v. Green, 4 Va. App. 256, 356 S.E.2d 447, 3 Va. Law Rep. 2605, 1987 Va. App. LEXIS 260 (1987).

If an employer regularly employs three or more persons to carry out the established mode of performing the work of the business, he should remain subject to the provisions of the act, even if one or more of the employees works less than full-time, or if the number of his employees temporarily falls below three. Cotman v. Green, 4 Va. App. 256, 356 S.E.2d 447, 3 Va. Law Rep. 2605, 1987 Va. App. LEXIS 260 (1987).

Both full-time and part-time employees who are regularly employed to carry out the trade or business of the employer must be counted in determining the number of employees “regularly in service” to the employer. Keene v. Boothe, 2001 Va. App. LEXIS 270 (Va. Ct. App. May 22, 2001).

Virginia Workers’ Compensation applied the incorrect legal analysis in making its determination that an employer had three or more employees regularly in service under the Workers’ Compensation Act, § 65.2-101 , because the test the Commission used conflicted with the prior holdings of the court of appeals interpreting § 65.2-101 since without determining whether any three employees were “regularly in service,” the employer’s liability and the employee’s coverage could fluctuate rapidly based on the number of employees at work at the precise time of the accident; the legal standard the Commission applied also rendered its analysis inconsistent with the plain text of § 65.2-101 , which expressly excluded employees from workers’ compensation if their employers had regularly in service less than three employees. Ragland v. Muguruza, 59 Va. App. 250, 717 S.E.2d 842, 2011 Va. App. LEXIS 396 (2011).

Frequency and duration of employment not relevant. —

Any person hired by an employer to work in the usual course of the employer’s business is an “employee” under the act regardless of how often or for how long he may be employed; the number of employees regularly in service of the employer is the number used to carry out the established mode of performing the work of the business, even though the work may be recurrent instead of constant. Keene v. Boothe, 2001 Va. App. LEXIS 270 (Va. Ct. App. May 22, 2001).

Burden of proof on employer. —

Employer who was the proponent of the issue of whether it had “regularly in service less than three employees in the same business within this Commonwealth” had the burden of producing evidence that it had less than three employees regularly employed in Virginia. Craddock Moving & Storage Co. v. Settles, 16 Va. App. 1, 427 S.E.2d 428, 9 Va. Law Rep. 1026, 1993 Va. App. LEXIS 44 (1993), aff'd, 247 Va. 165 , 440 S.E.2d 613, 10 Va. Law Rep. 935, 1994 Va. LEXIS 25 (1994).

Once an employee proves that his injury occurred while employed in Virginia, the employer has the burden of producing sufficient evidence upon which the Commission can find that the employer employed less than three employees regularly in service in Virginia. Uninsured Employer's Fund v. Kramer, 32 Va. App. 77, 526 S.E.2d 304, 2000 Va. App. LEXIS 218 (2000).

It is the employer’s burden to produce sufficient evidence upon which the Commission can find that the employer employed fewer than three employees regularly in service in Virginia and that it is thus exempt from the act. Keene v. Boothe, 2001 Va. App. LEXIS 270 (Va. Ct. App. May 22, 2001).

“Full-time employment” imports a sense of permanence coupled with a commitment between the employer and employee whereby the latter’s normal employment capacity is essentially utilized. Lynch v. Thomas E. Lee & Sons, 12 Va. App. 933, 406 S.E.2d 423, 8 Va. Law Rep. 300, 1991 Va. App. LEXIS 177 (1991).

The term “full-time employee” refers to a specific person whose employment satisfies the definition of full-time. It does not define an aggregation of part-time employees. Therefore, Commission’s standard that 2,000 hours of employment were equivalent to the employment of one full-time employee was erroneous. Lynch v. Thomas E. Lee & Sons, 12 Va. App. 933, 406 S.E.2d 423, 8 Va. Law Rep. 300, 1991 Va. App. LEXIS 177 (1991).

Employees of subcontractor considered employees for determining applicability of act. —

The subcontractor’s employees are employees of the contractor for purposes of liability. Since they are the contractor’s employees for purposes of determining liability, reason dictates that they should also be considered employees for determining applicability of the act. Smith v. Weber, 3 Va. App. 379, 350 S.E.2d 213, 3 Va. Law Rep. 1114, 1986 Va. App. LEXIS 372 (1986).

Employer was not excluded under § 65.2-101 as it did not show that it regularly kept fewer than three employees in service, or that the nature of the business entailed the service of fewer than three employees; a former employee testified that during the employee’s brief employment, the employer hired three subcontractors, “so it was a total of eight people,” and as employees of the subcontractor were treated the same as the employer’s own employees, the burden was on the employer to prove the number of employees the subcontractors employed. The employer produced no evidence in that regard. Hoffman v. Carter, 50 Va. App. 199, 648 S.E.2d 318, 2007 Va. App. LEXIS 298 (2007).

When contractor responsible for employees of subcontractors. —

A contractor is responsible for workers’ compensation benefits for a subcontractor’s employee if the contractor has no employees but two of his subcontractors have a total of three employees between them. Smith v. Weber, 3 Va. App. 379, 350 S.E.2d 213, 3 Va. Law Rep. 1114, 1986 Va. App. LEXIS 372 (1986).

Requisite full-time status under agriculture exemption not found. —

Claimant failed to show that employer had at least three full-time employees regularly in service where sufficient credible evidence supported the commission’s finding that the laborers other than the two sons were part-time and seasonal. The laborers were free to work as much or as little as they wanted during the season and were paid by the hour or by the bushel. Also, the laborers did not work for an “indefinite period of time.” Their term of employment was fixed as the length of the season, and only the weather and the number of workers created any uncertainty as to the length of employment. Lynch v. Lee, 19 Va. App. 230, 450 S.E.2d 391, 1994 Va. App. LEXIS 668 (1994).

An agricultural employee was not a full-time employee and, therefore, the employer only had two full-time employees, where the employee in question earned less than the other two employees and the employer did not use his normal employment capacity. Ray v. Radford, 1998 Va. App. LEXIS 312 (Va. Ct. App. June 2, 1998).

High school students not full-time farm employees. —

The Commission properly found that a partnership operating a dairy farm did not employ more than two full-time employees and, therefore, was not an “employer” under this section in that there was sufficient evidence for the commission to infer that no sense of permanence existed in the relationship between the employer and two high school students and that, because the boys were full-time students, the employer could not have utilized their normal employment capacity; credible evidence proved that the employer and the two boys all understood that the boys were full-time students who worked as their school and school-related activities permitted and as the needs of the employer required given the seasonal nature of farm work. Cosgrove v. Sowers, 2000 Va. App. LEXIS 692 (Va. Ct. App. Oct. 3, 2000).

Total number of persons employed by subcontractors should be counted when calculating whether the contractor employs the minimum number of workers required for workers’ compensation coverage. Smith v. Weber, 3 Va. App. 379, 350 S.E.2d 213, 3 Va. Law Rep. 1114, 1986 Va. App. LEXIS 372 (1986).

Failure to allege employment of requisite number of employees. —

In action for wrongful death, in the absence of an allegation that the defendant had in its employ the requisite number of employees, or that it and its employees had voluntarily elected to be bound by the Act, as required by this section, it did not necessarily appear from the notice of motion for judgment that the Compensation Commission had jurisdiction of the subject matter of the litigation. Aistrop v. Blue Diamond Coal Co., 181 Va. 287 , 24 S.E.2d 546, 1943 Va. LEXIS 179 (1943).

Regular employment of three or more employees not shown. —

Painter who exempted himself from coverage under the Virginia Workers’ Compensation Act, who hired two employees on a part-time basis who worked sporadically less than 60 days out of the year, and who hired a worker who injured himself on the eighth day of his work on a project, did not regularly employ three or more persons in the operation of the business, even though all the people were working on the day of the accident, and the Virginia Workers’ Compensation Commission had no jurisdiction over the painter. Osborne v. Forner, 36 Va. App. 91, 548 S.E.2d 270, 2001 Va. App. LEXIS 431 (2001).

Dismissal of workers’ compensation claim was affirmed where the employer presented evidence in the form of corporate minutes that it had fewer than three employees at the time of the claimant’s injury. Estate of Pelfrey v. Sorah, 2003 Va. App. LEXIS 387 (Va. Ct. App. July 8, 2003).

The appeals court was bound by the Virginia Workers’ Compensation Commission’s findings that at the time of a claimant’s accident an employer did not “regularly employ” three or more employees to be subject to the Virginia Workers’ Compensation Act pursuant to § 65.2-101 ; the employer testified that his business only had two employees during the period from December of 2000 until August of 2001. The factual finding that the employer’s “established mode of performing business” did not regularly require three or more employees was supported by the employer’s testimony that he chose not to replace an employee because he did not need the additional worker. Perry v. Delisle, 46 Va. App. 57, 615 S.E.2d 494, 2005 Va. App. LEXIS 309 (2005).

Appellate court did not have jurisdiction over the claim made by the decedent’s estate for death benefits pursuant to § 65.2-512 of the Virginia Workers’ Compensation Act, § 65.2-100 et seq.; in order for decedent to have been an employee whose estate was eligible for death benefits, the employer had to have had three employees “regularly in service” in the Commonwealth at the time of the death of decedent, pursuant to § 65.2-101 , and the employer only had two such employees, including decedent himself. Uninsured Employer's Fund v. Gabriel, 272 Va. 659 , 636 S.E.2d 408, 2006 Va. LEXIS 98 (2006) (reversing 47 Va. App. 95, holding that evidence in record did not support a finding that the Commission had jurisdiction.).

Trial court did not err in granting the subcontractor’s demurrer in the general contractor’s indemnity action against the subcontractor after the injured employee of the subcontractor obtained workers’ compensation benefits from the general contractor; the general contractor in its indemnity action had to show that the subcontractor was liable to pay the workers’ compensation benefits, but the general contractor failed to plead facts showing that the subcontractor, which had a principal place of business in Maryland, was subject to the Virginia Workers’ Compensation Act, § 65.2-100 et seq., as the general contractor did not show that the subcontractor had at least three employees regularly in the service of the Commonwealth, as was required pursuant to § 65.2-101 to subject an employer to the Act. Mark Five Constr., Inc. v. Castle Contr., 274 Va. 283 , 645 S.E.2d 475, 2007 Va. LEXIS 80 (2007).

Employer was not subject to the Workers’ Compensation Act under § 65.2-101 because the employer’s window replacement project took months to complete and during that interval, the employer hired three workers simultaneously for one and a half days, which did not constitute regularly-recurring periods; the employer installed at least half of the windows himself, without the help of any employees, and he did not regularly employ three or more employees. Ragland v. Muguruza, 59 Va. App. 250, 717 S.E.2d 842, 2011 Va. App. LEXIS 396 (2011).

As there was sufficient evidence to support the finding that an employer did not have three or more employees regularly in its service prior to an employee’s injury pursuant to § 65.2-101 , it was properly determined that the Workers’ Compensation Commission lacked jurisdiction over the employee’s benefits request. Mirarchi v. Whistle Stop Hobbies, LLC, 2013 Va. App. LEXIS 129 (Va. Ct. App. Apr. 23, 2013).

Regular employment of three or more employees shown. —

Virginia Workers’ Compensation commission properly determined that an employer was subject to the commission’s jurisdiction in a victim’s claim for injuries sustained while working for the employer as a truck driver, as the employer had regularly in service, three or more employees at the time of the victim’s accident. Va. Uninsured Emplr. Fund v. Nunn, 2003 Va. App. LEXIS 156 (Va. Ct. App. Mar. 25, 2003).

Employer, a professional ice hockey team, did not have more than three employees regularly in service within the Commonwealth of Virginia as required by § 65.2-101 and was, therefore, not subject to the Workers’ Compensation Act; therefore, claimant, an injured player was properly denied workers’ compensation benefits. Bois v. Huntington Blizzard, 39 Va. App. 216, 571 S.E.2d 924, 2002 Va. App. LEXIS 683 (2002).

Regularly in service less than three employees. —

Employer, whose son was properly deemed his third employee, was appropriately assessed a fine, pursuant to § 65.2-805 for failing to carry workers’ compensation coverage; evidence showed that the son worked at the employer’s direction, was paid a wage, used the company vehicle to various work sites, and the employer established quitting time, given the workers, including his son, their individual work assignments. Perkey v. Fridley, 2003 Va. App. LEXIS 31 (Va. Ct. App. Jan. 28, 2003).

Mere fact that the employer performed only small percentage of its overall business in Virginia did not mean that the service of its employees within Virginia was not regular; the employer held itself out as willing and able to perform restoration work in Virginia and operated regularly in the state. Mark Five Constr. Co. v. Gonzalez, 42 Va. App. 59, 590 S.E.2d 81, 2003 Va. App. LEXIS 692 (2003).

Workers’ Compensation Commission erred in assessing a fine against the company for failing to maintain workers’ compensation insurance; the Commission had found the company had a total of three employees, which triggered the necessity of maintaining workers’ compensation insurance. However, with the conclusion that an “employee” was actually an independent contractor, the company had less than three employees and was thus exempt from the provisions of the Workers’ Compensation Act; thus, the imposition of the fine by the Commission was erroneous. Creative Designs Tattooing Assocs. v. Estate of Parrish, 56 Va. App. 299, 693 S.E.2d 303, 2010 Va. App. LEXIS 212 (2010).

V.Employer.

Editor’s note.

Many of the cases annotated under the heading “Employer” were decided under former § 65.1-3 or prior law.

Family relationship between employer and claimant. —

The definition of “employers” in former § 65.1-3 and the definition of “employee” in former § 65.1-4 were all inclusive and made no exception, as some of the Workmen’s (now Workers’) Compensation Acts do, because of family relationship between the employer and employee. Thus the fact that the employer was the husband of the claimant did not bar claimant from receiving death benefits payable to the dependents of a deceased employee. The rule that a wife could not sue her husband in tort did not bar such a recovery by the claimant because a proceeding under the Workmen’s (now Workers’) Compensation Act was not based upon tort. Glassco v. Glassco, 195 Va. 239 , 77 S.E.2d 843, 1953 Va. LEXIS 193 (1953).

Status as “employer” does not fluctuate. —

Workers’ compensation claimant that worked for an employer with a seasonal amusement park business, in which there were well over three employees during the peak season, was entitled to workers’ compensation benefits when the claimant was injured on the job, even though the claimant was the only employee at the time of the claimant’s injury; the claimant’s status as a covered employee would not fluctuate merely because the injury occurred at the end of the season when the employer needed one employee on the payroll, as opposed to during the height of the amusement park season. Uninsured Employer's Fund v. Cornelius, 2003 Va. App. LEXIS 142 (Va. Ct. App. Mar. 18, 2003).

Insurance carrier not excepted from definition of “employer.” —

The modifying words “so far as applicable” in former § 65.1-3 did not except an insurance carrier from the definition of an employer. Williams v. United States Fid. & Guar. Co., 358 F.2d 799, 1966 U.S. App. LEXIS 7090 (4th Cir. 1966).

Insurer is not merely made the guarantor of the employer, but rather the primary obligor answerable for all promises this title makes to the employee. Williams v. United States Fid. & Guar. Co., 358 F.2d 799, 1966 U.S. App. LEXIS 7090 (4th Cir. 1966).

While not employers pursuant to this section, contractors may be liable under § 65.2-302 . —

Where neither subcontractor nor general contractor used the service of any of the claimants for pay, neither falls within the definition of “employer” set forth in this section. However, both are subject to liability for awards to the claimants under the Virginia Workers’ Compensation Act because of their status as statutory employers pursuant to § 65.2-302 . Sites Constr. Co. v. Harbeson, 16 Va. App. 835, 434 S.E.2d 1, 10 Va. Law Rep. 107, 1993 Va. App. LEXIS 328 (1993).

Virginia Workers’ Compensation Commission did not err in finding that a company was an “employer” under the Virginia Workers’ Compensation Act, subsection A of § 65.2-302 , because the company conducted its business primarily through the employees of its other family-owned business and contracted with that business to perform the upkeep and day-to-day operations of its business, and the Commission had sufficient evidence to conclude that those employees were engaged in the regular business of the company; as such, those employees were statutory employees of the company at the time of claimant’s accident, and the company fell under the jurisdiction of the Act. Sherman & Sherman Props. v. Long, 2011 Va. App. LEXIS 128 (Va. Ct. App. Apr. 12, 2011).

Owner not construction worker’s statutory employer. —

Decedent, an employee of a contractor hired by an owner to construct warehouses, was not engaged in the owner’s trade or business when he suffered fatal injuries in the course of employment, as his construction work was not part of the owner’s business, which was real estate development; thus, the owner was not his statutory employer, and workers compensation exclusivity under § 65.2-307 did not bar plaintiff’s wrongful death suit against the owner. Rodriguez v. Leesburg Bus. Park, LLC, 287 Va. 187 , 754 S.E.2d 275, 2014 Va. LEXIS 25 (2014).

VI.Injury.

A.In General.

Editor’s note.

Some of the cases annotated below were decided under former Title 65.1 or prior law.

A fair reading of the act and its purposes treats the term “injury” as either a mental or a physical condition, affecting the employee’s person; thus, employee, whose defamation action claimed general damages and alleged no personal injury, was not bound by exclusivity provisions of the Act. Snead v. Harbaugh, 241 Va. 524 , 404 S.E.2d 53, 7 Va. Law Rep. 2386, 1991 Va. LEXIS 54 (1991).

The philosophy which supports the Workmen’s (now Workers’) Compensation Act is that the wear and tear of human beings in modern industry should be charged to the industry, just as the wear and tear of machinery has always been charged. Brown v. Reed, 209 Va. 562 , 165 S.E.2d 394, 1969 Va. LEXIS 143 (1969).

Consistent with the philosophy of workers’ compensation, industry properly should be charged with the expense of injury which occurs at a place furnished as an incident to the employment and happens at a time when employees reasonably can be expected to use the designated area, even though the specific location is not owned or maintained by the employer. Barnes v. Stokes, 233 Va. 249 , 355 S.E.2d 330, 3 Va. Law Rep. 2332, 1987 Va. LEXIS 192 (1987).

Former § 65.1-23.1 did not alter “injury by accident” definition. —

The General Assembly, in enacting former § 65.1-23.1 (now § 65.2-301 ), did not alter the definition of “injury by accident” found in Virginia case law as it relates to intentional act of sexual assault as coming within, rather than excluded from, the purview of the Act. Haddon v. Metropolitan Life Ins. Co., 239 Va. 397 , 389 S.E.2d 712, 6 Va. Law Rep. 1613, 1990 Va. LEXIS 30 (1990), overruled, Middlekauff v. Allstate Ins. Co., 247 Va. 150 , 439 S.E.2d 394, 10 Va. Law Rep. 785, 1994 Va. LEXIS 10 (1994), overruled, Lichtman v. Knouf, 248 Va. 138 , 445 S.E.2d 114, 10 Va. Law Rep. 1554, 1994 Va. LEXIS 99 (1994).

In order to recover compensation for a work-related injury under the Workers’ Compensation Act, one must satisfy the requirements of this section which prescribe the nature of compensable injuries. Vaden Co. v. Keiser, 1994 Va. App. LEXIS 24 (Va. Ct. App. Jan. 25, 1994).

Compensation is provided for injuries which: (1) are caused by accident; (2) arise out of the employment; and (3) occur in the course of employment. Vaden Co. v. Keiser, 1994 Va. App. LEXIS 24 (Va. Ct. App. Jan. 25, 1994).

Compensable consequences. —

Any discussion of the doctrine of compensable consequences must recognize the basic concept that a disputed accidental injury must arise out of and be in the course of employment in order to be compensable. Amoco Foam Prods. Co. v. Johnson, 257 Va. 29 , 510 S.E.2d 443, 1999 Va. LEXIS 21 (1999).

Workers’ Compensation Commission properly awarded medical benefits to an employee for a compensable consequence injury because after the first doctor performed arthroscopic surgery on the employee’s left knee, he found a fracture in that area of the knee that was subsequently determined to be directly related to the surgical reshaping of the knee during the surgery, which fracture was compensable, and nothing in the record indicated that employer instructed the employee to return to the first doctor. Vital Link, Inc. v. Hope, 69 Va. App. 43, 814 S.E.2d 537, 2018 Va. App. LEXIS 164 (2018).

Under this section three elements must be proved: (1) an injury by accident; (2) the injury must have arisen out of the employment, and (3) it must have occurred in the course of employment. Southern Motor Lines Co. v. Alvis, 200 Va. 168 , 104 S.E.2d 735, 1958 Va. LEXIS 172 (1958).

Injuries must be traced to employment as a cause. —

Recovery may be had for accidental injuries arising out of and in the course of the employment. Such injuries must be traced to the employment as a cause. A.N. Campbell & Co. v. Messenger, 171 Va. 374 , 199 S.E. 511 , 1938 Va. LEXIS 287 (1938).

Remedy not exclusive in absence of any of three elements. —

The critical inquiry when an employer asserts that workers’ compensation is an employee’s exclusive remedy is whether the employee’s injury was (1) an injury by accident, (2) arising out of, (3) and in the course of, the employee’s employment; if any one of these elements is missing, then the employee’s claim is not covered by the workers’ compensation act and the employee can proceed with a personal injury claim in court. Combs v. VEPCO, 259 Va. 503 , 525 S.E.2d 278, 2000 Va. LEXIS 38 (2000).

The link of causation must directly connect the original accidental injury with the additional injury for which compensation is sought. Amoco Foam Prods. Co. v. Johnson, 257 Va. 29 , 510 S.E.2d 443, 1999 Va. LEXIS 21 (1999).

Causation proved. —

Evidence supported the Virginia Workers’ Compensation Commission’s decision that the worker’s injury arose out of and in the course of her employment and that her disability was caused by that fall because, while the worker was unable to state with certainty what caused her fall, she consistently claimed that something on the floor caused her feet to slip out from underneath her when she turned the corner and, from the evidence, it was a reasonable inference that something on the floor caused the worker to fall; although the medical evidence did not establish that her injuries were caused by the slip and fall, the history recorded in her medical records was consistent with her testimony and reflected that the injury resulted from the work-related fall. Lakehouse Restaurant/Zak, Inc. v. Tiller, 2003 Va. App. LEXIS 618 (Va. Ct. App. Dec. 2, 2003).

Stipulations. —

Claimant suffered a compensable injury to the claimant’s right shoulder because the employer, by stipulating that several of the claimant’s injuries sustained in a slip and fall accident at work were compensable, conceded that the claimant suffered at least one sudden mechanical or structural change to the claimant’s body. thereafter, the claimant could prove an injury was compensable by causally connecting it to the accident, even if the claimant could not demonstrate it was connected to the mechanical or structural change. Alexandria City Pub. Schs. v. Handel, 70 Va. App. 349, 827 S.E.2d 384, 2019 Va. App. LEXIS 114 (2019), vacated, 299 Va. 191 , 848 S.E.2d 816, 2020 Va. LEXIS 115 (2020), different results reached on reh'g, No. 1582-18-4, 2021 Va. App. LEXIS 78 (Va. Ct. App. May 11, 2021).

Had plaintiff, as a retired firefighter, been employed at the time of his incapacity, he would have been entitled to compensation. Plaintiff may have been entitled to compensation if he had even been actively seeking employment on the basis of lost earning capacity. Since neither of these situations applied to the plaintiff, he had no income for the preceding fifty-two weeks and he was not attempting to earn income at the time of his incapacity, and therefore, the plaintiff was not entitled benefits. Arlington County Fire Dept. v. Stebbins, 21 Va. App. 570, 466 S.E.2d 124, 1996 Va. App. LEXIS 55 (1996).

Hearing loss caused by prolonged exposure to noise at work is a noncompensable gradually incurred injury. Allied Fibers v. Rhodes, 23 Va. App. 101, 474 S.E.2d 829, 1996 Va. App. LEXIS 584 (1996).

Injury resulting from overuse is not compensable. —

Injury resulting from cumulative trauma, or “overuse,” is not compensable. Merillat Indus., Inc. v. Parks, No. 0222-91-3 (Ct. of Appeals Mar. 31, 1992).

“Injuries resulting from a repetitive trauma . . . as well as injuries sustained at an unknown time, are not ‘injuries by accident’ within the meaning of § 65.1-7 [now § 65.2-101 ].” Bowers v. TRW, Inc., 1996 Va. App. LEXIS 272 (Va. Ct. App. Apr. 16, 1996).

Idiopathic condition. —

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. Sweet v. KMart Corp., 1995 Va. App. LEXIS 460 (Va. Ct. App. May 23, 1995).

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. Sweet v. KMart Corp., 1995 Va. App. LEXIS 460 (Va. Ct. App. May 23, 1995).

“Disease” does not equate with “injury.” —

The language “injury” does not include a disease in any form, as used in this section, but is language of limitation. Stenrich Group v. Jemmott, 251 Va. 186 , 467 S.E.2d 795, 1996 Va. LEXIS 30 (1996).

Just because a doctor opines that a particular impairment is a “disease” does not necessarily make it so. Whether a claimant suffers from a disease within the contemplation of the Workers’ Compensation Act is a mixed question of law and fact. Whether a proper definition has been used to test the authenticity of a doctor’s opinion is strictly a legal question. Stenrich Group v. Jemmott, 251 Va. 186 , 467 S.E.2d 795, 1996 Va. LEXIS 30 (1996).

An impairment resulting from cumulative trauma caused by repetitive motion is an impairment which must be classified as an injury, not a disease, and is not compensable. Stenrich Group v. Jemmott, 251 Va. 186 , 467 S.E.2d 795, 1996 Va. LEXIS 30 (1996).

Job-related impairments resulting from cumulative trauma caused by repetitive motion, however labeled or however defined, are, as a matter of law, not compensable under the present provisions of the Workers’ Compensation Act. Stenrich Group v. Jemmott, 251 Va. 186 , 467 S.E.2d 795, 1996 Va. LEXIS 30 (1996).

Evidence that existing disorder reaches point of disablement during employment does not prove accidental or other injury arising out of such employment. Liberty Mut. Ins. Co. v. Money, 174 Va. 50 , 4 S.E.2d 739, 1939 Va. LEXIS 140 (1939).

Sudden shock or fright with no physical impact may be “injury.” —

There is an accidental or personal injury within this section where an employee, in the course of his employment, receives a sudden shock or fright, involving no physical impact, which results in his disability. Burlington Mills Corp. v. Hagood, 177 Va. 204 , 13 S.E.2d 291, 1941 Va. LEXIS 207 (1941), limited, Chesterfield County v. Dunn, 9 Va. App. 475, 389 S.E.2d 180, 6 Va. Law Rep. 1384, 1990 Va. App. LEXIS 31 (1990).

Reaction from former injury. —

At the time of the accident, appellee was working at a machine near an electric motor on which there occurred a short circuit which produced an electrical flash. Appellee saw the flash and started to fall backwards when she was rescued by a coemployee. She continued to work for approximately one month, until while at work she looked up and suddenly saw the employee that had caught her when she fell before. She thereupon fainted, and did not return to work thereafter. It was held that the injury arose out of and in the course of her employment, since the subsequent happening was but a reaction from the injury of the former day. Burlington Mills Corp. v. Hagood, 177 Va. 204 , 13 S.E.2d 291, 1941 Va. LEXIS 207 (1941), limited, Chesterfield County v. Dunn, 9 Va. App. 475, 389 S.E.2d 180, 6 Va. Law Rep. 1384, 1990 Va. App. LEXIS 31 (1990).

A finding that a pre-existing condition was accelerated or aggravated by an injury sustained in an industrial accident establishes a causal connection between the injury and the disability, and the disability resulting thereof is compensable under the Workers’ Compensation Act. Corning, Inc. v. Testerman, 25 Va. App. 332, 488 S.E.2d 642, 1997 Va. App. LEXIS 523 (1997).

Injury by intentional tort of employer or fellow employee. —

An injury caused by the intentional tort of an employer or fellow employee is within the definition of injury by accident under the Workers’ Compensation Act. Haddon v. Metropolitan Life Ins. Co., 239 Va. 397 , 389 S.E.2d 712, 6 Va. Law Rep. 1613, 1990 Va. LEXIS 30 (1990), overruled, Middlekauff v. Allstate Ins. Co., 247 Va. 150 , 439 S.E.2d 394, 10 Va. Law Rep. 785, 1994 Va. LEXIS 10 (1994), overruled, Lichtman v. Knouf, 248 Va. 138 , 445 S.E.2d 114, 10 Va. Law Rep. 1554, 1994 Va. LEXIS 99 (1994).

Willful misconduct. —

Virginia Workers’ Compensation Commission did not err in concluding that an employer proved its affirmative defense of willful misconduct because credible evidence supported a finding that the claimant’s willful violation of his employer’s rule and the statutory requirement proximately caused his injuries; the Commission could reasonably infer that the claimant’s injuries resulted from being thrown out of the driver’s seat, which was a consequence of his failure to wear a seatbelt. Mailloux v. Am. Transp., 2018 Va. App. LEXIS 260 (Va. Ct. App. Oct. 9, 2018).

Injury from maritime tort. —

When an employee suffers injury from a maritime tort, which is within the jurisdiction of admiralty, the workmen’s (now workers’) compensation statutes of the several states have no application. Colonna Shipyard, Inc. v. Bland, 150 Va. 349 , 143 S.E. 729 , 1928 Va. LEXIS 318 (1928); Colonna Shipyard v. Dunn, 151 Va. 740 , 145 S.E. 342 , 1928 Va. LEXIS 270 (1928), cert. denied, 279 U.S. 840, 49 S. Ct. 253, 73 L. Ed. 986, 1929 U.S. LEXIS 160 (1929).

The workmen’s (now workers’) compensation statutes of the several states are, under the federal Constitution, invalid and ineffectual to the extent that they undertake to prescribe the rights, remedies, and liabilities, as between employer and employee, when the employee receives a maritime injury or suffers death through a maritime casualty, while engaged in a maritime employment or the performance of a maritime contract. Colonna Shipyard v. Dunn, 151 Va. 740 , 145 S.E. 342 , 1928 Va. LEXIS 270 (1928), cert. denied, 279 U.S. 840, 49 S. Ct. 253, 73 L. Ed. 986, 1929 U.S. LEXIS 160 (1929).

Injury sustained while working on vessel on high land. —

Where the employment related to work to be done on a completed vessel, which was on high land, and the injury was there sustained, the tort was nonmaritime, and came within this Act, the federal law being inapplicable. Colonna's Shipyard, Inc. v. Lowe, 22 F.2d 843, 1927 U.S. Dist. LEXIS 1610 (D. Va. 1927).

Emergency situation. —

Claimant’s testimony, along with doctor’s records, supported the commission’s finding that claimant’s treatment and surgery were required because of an emergency. John W. Daniel & Co. v. Hyler, 1994 Va. App. LEXIS 210 (Va. Ct. App. Apr. 5, 1994).

Back injury, resulting from squatting, absent other evidence, not compensable. —

An injury, such as claimant’s back injury, that results from merely squatting, absent evidence that the conditions of the workplace or that some significant work-related exertion caused the injury, is not compensable. Conley v. Celanese, 1994 Va. App. LEXIS 457 (Va. Ct. App. July 12, 1994).

Twisting in chair. —

Injuries from simple acts such as walking, bending, turning, or, in the instant case, twisting in a chair at work, do not arise out of the employment absent some condition of the employment which contributes to the injury. Beatty v. Narricot Indus., Inc., 1997 Va. App. LEXIS 281 (Va. Ct. App. Apr. 29, 1997).

Where disability has two causes, one related to employment and one unrelated, benefits are allowed. Hechts v. Randolph, 1995 Va. App. LEXIS 106 (Va. Ct. App. Feb. 7, 1995).

The principle is well established that where a disability has two causes: one related to the employment and one unrelated to the employment, full benefits will be allowed. Ferguson v. Limitorque Corp., 2000 Va. App. LEXIS 341 (Va. Ct. App. May 9, 2000).

B.Accident.

To establish a prima facie claim for compensation for an injury by accident, claimant must prove, by a preponderance of evidence: (1) an identifiable incident; (2) that occurred at some reasonably definite time; (3) with an obvious, sudden mechanical or structural change in the body; and (4) a causal connection between the incident and the bodily change. H.N. Funkhouser & Co. v. Kirby, No. 0999-91-4 (Ct. of Appeals Oct. 22, 1991); Southside Va. Training Ctr. v. Jones, No. 2898-98-2 (Ct. of Appeals Jan. 11, 2000).

Injury must result from accident. —

It is clear that the Virginia Workmen’s (now Workers’) Compensation Act, like the English workmen’s compensation law, provides compensation only for “injury by accident” (or occupational disease), and not for every “personal injury” an employee may sustain. The Virginia Act makes the occurrence of an accident a condition precedent to compensation. Clinchfield Carbocoal Corp. v. Kiser, 139 Va. 451 , 124 S.E. 271 , 1924 Va. LEXIS 122 (1924); Honaker & Feeney v. Hartley, 140 Va. 1 , 124 S.E. 220 , 1924 Va. LEXIS 152 (1924).

To establish an “injury by accident,” a claimant must prove (1) that the injury appeared suddenly at a particular time and place and upon a particular occasion, (2) that it was caused by an identifiable incident or sudden precipitating event, and (3) that it resulted in an obvious mechanical or structural change in the human body. Southern Express v. Green, 257 Va. 181 , 509 S.E.2d 836, 1999 Va. LEXIS 9 (1999); Avis Rent a Car, Inc. v. Calvin, 2000 Va. App. LEXIS 745 (Va. Ct. App. Nov. 21, 2000).

Courts are liberal in construing the word “accident.” A.N. Campbell & Co. v. Messenger, 171 Va. 374 , 199 S.E. 511 , 1938 Va. LEXIS 287 (1938); Hopson v. Hungerford Coal Co., 187 Va. 299 , 46 S.E.2d 392, 1948 Va. LEXIS 223 (1948).

The words “injury by accident” must be liberally construed in favor of the workman to carry out the humane and beneficent purposes of the Act. Aistrop v. Blue Diamond Coal Co., 181 Va. 287 , 24 S.E.2d 546, 1943 Va. LEXIS 179 (1943) (see Lynchburg Foundry Co. v. Irvin, 178 Va. 265 , 16 S.E.2d 646 (1941)).

Which should be defined in a popular sense rather than a technical sense. Lynchburg Foundry Co. v. Irvin, 178 Va. 265 , 16 S.E.2d 646, 1941 Va. LEXIS 162 (1941).

It does not have same meaning as words used in accident insurance policies. —

The term “injury by accident” used in Workmen’s (now Workers’) Compensation Act does not have the same meaning as the words “bodily injury, or death sustained by external, violent and accidental means,” generally used in accident insurance policies. Big Jack Overall Co. v. Bray, 161 Va. 446 , 171 S.E. 686 , 1933 Va. LEXIS 335 (1933).

Injuries not “injuries by accident.” —

Injuries resulting from repetitive trauma, continuing mental or physical stress, or other cumulative events, as well as injuries sustained at an unknown time, are not “injuries by accident” within the meaning of this section. Morris v. Morris, 238 Va. 578 , 385 S.E.2d 858 (1989); Riley v. Eastern State Hosp., No. 1961-89-1 (Ct. of Appeals Nov. 13, 1990).

Virginia Workers’ Compensation Commission did not err in concluding that a claimant failed to prove that he suffered a compensable injury where the claimant’s testimony showed that he repeated the same combination of movements to rotate and move 14 smart boards back and forth from sides of a room. Daggett v. Old Dominion Univ., 2018 Va. App. LEXIS 243 (Va. Ct. App. Sept. 25, 2018).

Terms “accident” and “injury” are not synonymous. The term “accident” refers to the incident or precipitating event (the cause) that occurred at work which resulted in an “injury” (the effect). Haigh v. Matsushita Elec. Corp. of Am., 676 F. Supp. 1332, 1987 U.S. Dist. LEXIS 12113 (E.D. Va. 1987).

“Accident” defined. —

An accident is an event happening without any human agency, or, if happening through human agency, an event which, under the circumstances, is unusual and not expected by the person to whom it happens. It is an event which creates an effect which is not the natural or probable consequence of the means employed and is not intended, designed, or reasonably anticipated. It is a befalling; an event that takes place without one’s foresight or expectation; an undesigned, sudden, and unexpected event; a mishap resulting in injury to a person or thing. Lynchburg Foundry Co. v. Irvin, 178 Va. 265 , 16 S.E.2d 646, 1941 Va. LEXIS 162 (1941); Derby v. Swift & Co., 188 Va. 336 , 49 S.E.2d 417, 1948 Va. LEXIS 168 (1948); VEPCO v. Quann, 197 Va. 9 , 87 S.E.2d 624, 1955 Va. LEXIS 188 (1955); Reserve Life Ins. Co. v. Hosey, 208 Va. 568 , 159 S.E.2d 633, 1968 Va. LEXIS 149 (1968).

To constitute an injury by accident it is not necessary that there must be a “fall, slip or other fortuitous circumstance” nor an extraordinary occurrence in or about the work engaged in. Derby v. Swift & Co., 188 Va. 336 , 49 S.E.2d 417, 1948 Va. LEXIS 168 (1948); VEPCO v. Quann, 197 Va. 9 , 87 S.E.2d 624, 1955 Va. LEXIS 188 (1955); Reserve Life Ins. Co. v. Hosey, 208 Va. 568 , 159 S.E.2d 633, 1968 Va. LEXIS 149 (1968).

Where the effect was not the natural and probable consequence of the means employed, and was not intended or designed, the injury resulting was produced by accidental means. Hall's Bakery v. Kendrick, 176 Va. 346 , 11 S.E.2d 582, 1940 Va. LEXIS 258 (1940); Reserve Life Ins. Co. v. Hosey, 208 Va. 568 , 159 S.E.2d 633, 1968 Va. LEXIS 149 (1968).

“Mishap,” “fortuitous happening,” “untoward event.” —

If the incident which gives rise to the injurious results complained of can be classed properly as a “mishap,” or “fortuitous” happening — an “untoward event, which is not expected or designed” — it is an accident within the meaning of the Workmen’s (now Workers’) Compensation Act. Tyree v. Commonwealth, 164 Va. 218 , 179 S.E. 297 (1935), applying the rule where a workman, while loading a truck, saw a stone, too large to be loaded, lying near the pile that he was loading, with a piece of dynamite attached to it by a sliver of shale, and believing the dynamite to be dead because of the presence of water on the rock, attempted to knock off the shale with a sprawl fork, but struck the dynamite which exploded, seriously injuring him. See also Hurd v. Hesse & Hurt, 161 Va. 800 , 172 S.E. 289 , 1934 Va. LEXIS 303 (1934).

“Accident” may refer to result as well as cause. —

The “by accident” portion of the requirement of this section may be satisfied by showing that an attack, which happens while employee was engaged in work activity, while perhaps not accidental as to cause, was accidental as to result. D.W. Mallory & Co. v. Phillips, 219 Va. 845 , 252 S.E.2d 319, 1979 Va. LEXIS 180 (1979).

Unexplained accident. —

A claimant who suffers an unexplained accident on the job and cannot recall how the accident occurred is not entitled to the presumption that the injury arose out of his employment. 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. This burden was not met where claimant has no recollection of the events leading up to his injury or the accident itself; no one saw the accident occur and no one was in the vicinity when the claimant was injured; and evidence presented did not establish the nature of the claimant’s fall or how he was injured and did not rule out the possibility that his injuries resulted from a noncompensable accident. Grand Piano & Furn. Co. v. Gray, 1997 Va. App. LEXIS 791 (Va. Ct. App. Apr. 29, 1997).

Workers’ Compensation Commission did not err in denying the employee’s claim for benefits because the employee’s accident did not arise out of her employment only as neither her testimony nor the medical evidence established a causal connection between her employment and her injuries because the employee stated that she did not remember the cause of her accident, and she did not present any medical evidence affirmatively establishing a cause. Burney-Divens v. Cmty. Corr. Admin., 2016 Va. App. LEXIS 145 (Va. Ct. App. May 3, 2016).

Same injury need not happen to others. —

Whether an injury is the result of an accident does not depend on whether the same injury might happen to others. Reserve Life Ins. Co. v. Hosey, 208 Va. 568 , 159 S.E.2d 633, 1968 Va. LEXIS 149 (1968).

The causative incident need not be instantaneous in order to have occurred “suddenly” and at a particular time so as to give rise to a compensable claim. Goodyear Tire & Rubber Co. v. Harris, 35 Va. App. 162, 543 S.E.2d 619, 2001 Va. App. LEXIS 148 (2001).

Accident must be unexpected and specific in time. —

Two concepts are generally recognized and discussed when interpreting the “by accident” concept in Virginia. These concepts are a required degree of “unexpectedness” in the accident or injury, and a requirement of time specificity as to the occurrence of the accident or incident giving rise to the injury. Haigh v. Matsushita Elec. Corp. of Am., 676 F. Supp. 1332, 1987 U.S. Dist. LEXIS 12113 (E.D. Va. 1987).

“Sudden” occurrence need not be unexpected. —

Although a claimant must prove a “sudden” precipitating event that caused the injury, it is not necessary that there should be an extraordinary occurrence in or about the work engaged in; “sudden” is not used here to connote an unexpected consequence but to refer to a precipitating event that is one that immediately causes an injury, as distinguished from an injury that appears or occurs gradually. New River Castings Co. v. Woolwine, 2000 Va. App. LEXIS 802 (Va. Ct. App. Dec. 12, 2000).

Injury must be shown to have occurred at some definite time and place. —

The injury, to be regarded as “by accident,” must be received at a particular time and in a particular place and by a particular accident. And the accident must be something the date of which can be fixed. It is not enough that the injury shall make its appearance suddenly at a particular time and upon a particular occasion. In other words the “incident,” the act done or condition encountered, must be shown to have occurred at some reasonably definite time. Aistrop v. Blue Diamond Coal Co., 181 Va. 287 , 24 S.E.2d 546, 1943 Va. LEXIS 179 (1943); Badische Corp. v. Starks, 221 Va. 910 , 275 S.E.2d 605, 1981 Va. LEXIS 227 (1981).

Where an employee cannot identify his injury with a movement made or action taken at a particular time at work and arising out of and in the course of employment, he cannot recover compensation. Badische Corp. v. Starks, 221 Va. 910 , 275 S.E.2d 605, 1981 Va. LEXIS 227 (1981).

Where employee had suffered pain in her back and leg for two years, and where she suffered such pain in increasing intensity on two consecutive days but could not attribute it to any identifiable movement, incident, or event on either day, she failed to meet her burden of proof; thus, there was no evidence to support an award of compensation. Badische Corp. v. Starks, 221 Va. 910 , 275 S.E.2d 605, 1981 Va. LEXIS 227 (1981).

Workers’ Compensation Commission erred in finding that a police officer suffered a compensable, discrete injury by accident arising out of employment because the Commission assumed, but failed to find, that the officer’s testimony established an identifiable incident with sufficient temporal precision inasmuch as the assumption that the officer sustained a non-cumulative injury during the last four hours of training was justified based on his own testimony, and there was no specific finding to that effect. City of Charlottesville v. Sclafani, 70 Va. App. 613, 830 S.E.2d 52, 2019 Va. App. LEXIS 171 (2019).

Identifiable incident must be shown. —

In order to show that he has suffered an “injury by accident” arising out of ordinary exertion, a claimant must prove an “identifiable incident that occurs at some reasonably definite time,” which is the cause of “an obvious sudden mechanical or structural change in the body.” Lane Co. v. Saunders, 229 Va. 196 , 326 S.E.2d 702, 1985 Va. LEXIS 192 (1985); Kraft Dairy Group, Inc. v. Bernardini, 229 Va. 253 , 329 S.E.2d 46, 1985 Va. LEXIS 200 (1985); Bradley v. Philip Morris, U.S.A., 1 Va. App. 141, 336 S.E.2d 515, 1985 Va. App. LEXIS 75 (1985); Woody v. Mark Winkler Mgt., Inc., 1 Va. App. 147, 336 S.E.2d 518, 1985 Va. App. LEXIS 76 (1985); Pendleton v. Flippo Constr. Co., 1 Va. App. 381, 339 S.E.2d 210, 1986 Va. App. LEXIS 211 (1986).

The “injury by accident” formulation has three components: (1) an identifiable incident; (2) a sudden mechanical or structural change in the body; and (3) a causal connection between the incident and the bodily change. A claimant must satisfy each part of the “injury by accident” test. Bradley v. Philip Morris, U.S.A., 1 Va. App. 141, 336 S.E.2d 515, 1985 Va. App. LEXIS 75 (1985).

In order to carry his burden of proving an injury by accident a claimant must prove that the cause of his injury was an identifiable incident or sudden precipitating event and that it resulted in an obvious sudden mechanical change in the body. Thus, where the full commission, in reversing the deputy commissioner, found that claimant’s injury did not meet the requirement of an identifiable incident or sudden precipitating event but instead resulted from repetitive trauma or cumulative events credible evidence supported this finding; thus it would not be disturbed on appeal. Wilhelm v. Rockydale Quarries Corp., 1993 Va. App. LEXIS 571 (Va. Ct. App. Nov. 30, 1993).

Fire fighter’s injury was the result of an identifiable incident that occurred at a reasonably definite time where his rescue of a man with a broken leg that took 45 minutes to accomplish was an identifiable incident, the fire fighter’s subsequent disc herniation was a sudden mechanical or structural change in the body, and there was a causal connection between the incident and the bodily change. Van Buren v. Augusta Cnty., 66 Va. App. 441, 787 S.E.2d 532, 2016 Va. App. LEXIS 196 (2016).

Under some circumstances, a claimant need not be able to pinpoint the exact moment of injury in order for it to be compensable as an “injury by accident” under the Workers’ Compensation Act. Riverside Reg'l Jail Auth. v. Dugger, 68 Va. App. 32, 802 S.E.2d 184, 2017 Va. App. LEXIS 177 (2017).

Identifiable incident occurred when claimant stepped on a used fastener in the service bays that penetrated claimant’s shoe and the bottom of his foot, which resulted in a puncture wound; this caused an obvious and sudden mechanical or structural change in claimant’s body because the puncture wound changed the anatomy of claimant’s foot, and thus claimant proved the first and third components of an injury by accident. Farrish of Fairfax v. Faszcza, 2020 Va. App. LEXIS 173 (Va. Ct. App. June 16, 2020).

Thus injury resulting from cumulative effect of many unidentifiable factors is not compensable. —

An injury of gradual growth, not the result of some particular piece of work or condition encountered on a definite occasion, but caused by the cumulative effect of many acts done or many exposures to conditions prevalent in the work, no one of which can be identified as the cause of the harm, is definitely excluded from compensation. Aistrop v. Blue Diamond Coal Co., 181 Va. 287 , 24 S.E.2d 546, 1943 Va. LEXIS 179 (1943).

A gradually incurred injury is not an “injury by accident” within the meaning of the Workers’ Compensation Act. Middlekauff v. Allstate Ins. Co., 247 Va. 150 , 439 S.E.2d 394, 10 Va. Law Rep. 785, 1994 Va. LEXIS 10 (1994).

Repetitive trauma. —

Injuries resulting from repetitive trauma or continuing mental stress are not “injuries by accident.” Yon v. Investors Home Mtg. Group, No. 1817-89-2 (Ct. of Appeals Oct. 16, 1990).

The medical evidence failed to establish an identifiable incident which caused an obvious sudden mechanical or structural change in claimant’s body. Even though claimant’s pain was related to the work she performed by the cumulative exertion of her work activities and was the cause of her current condition since it is well settled that injuries resulting from repetitive trauma or other cumulative events are not “injuries by accident” within the meaning of this section. United Coupon Mfg. Corp. v. Lupo, No. 0956-89-4 (Ct. of Appeals March 13, 1990).

Claimant must identify injury with movement made or action taken at a particular time at work. Bradley v. Philip Morris, U.S.A., 1 Va. App. 141, 336 S.E.2d 515, 1985 Va. App. LEXIS 75 (1985).

Objective showing of incident or event required. —

A claimant must make an objective showing of an identifiable incident or sudden precipitating event to which an injury may be related causally. Bradley v. Philip Morris, U.S.A., 1 Va. App. 141, 336 S.E.2d 515, 1985 Va. App. LEXIS 75 (1985).

Inhalation of poisonous gases may be accident. —

Disability or death from inhaling poisonous gases is compensable as an injury resulting from an “accident,” provided the other circumstances are such as to bring the matter within the scope of the workmen’s (now workers’) compensation laws. Aistrop v. Blue Diamond Coal Co., 181 Va. 287 , 24 S.E.2d 546, 1943 Va. LEXIS 179 (1943).

If it occurred at a particular time and on a particular occasion. —

Where the disability or death of the employee is due to the inhalation of poisonous gases at a particular time and on a particular occasion which can be fixed with reasonable certainty, the event is an “injury by accident.” Aistrop v. Blue Diamond Coal Co., 181 Va. 287 , 24 S.E.2d 546, 1943 Va. LEXIS 179 (1943).

A claimant sufficiently established the occurrence of an “accident” where the claimant was required to work with a particular glue in an enclosed space over the course of a day and, that evening, experienced breathing problems that resulted in his being taken to the hospital. The claimant’s intense exposure to the special glue over the course of a single day constituted an identifiable incident even though his symptoms did not manifest themselves instantly. Tremelon v. Commercial Constr. Corp., 2000 Va. App. LEXIS 801 (Va. Ct. App. Dec. 12, 2000).

But injury by gradual inhalation over long period may not be compensable. —

If the death of an employee was due to the gradual inhalation of poisonous gases over a considerable period, a common-law action for damages is the appropriate remedy. Blue Diamond Coal Co. v. Aistrop, 183 Va. 23 , 31 S.E.2d 297, 1944 Va. LEXIS 126 (1944).

Injury from unusual or unusually strenuous work. —

The requirement that the claimant prove an identifiable incident that occurs at some reasonably definite time applies also to an employee who claims injury as a result of work that is unusual to him or unusually strenuous, repetitive or stressful. Woody v. Mark Winkler Mgt., Inc., 1 Va. App. 147, 336 S.E.2d 518, 1985 Va. App. LEXIS 76 (1985).

Conditions of employment exposing employee to unusual hazards. —

If the injury or death results from, or is hastened by, conditions of employment exposing the employee to hazards to a degree beyond that of the public at large, the injury or death is construed to be accidental within the meaning of this section. Byrd v. Stonega Coke & Coal Co., 182 Va. 212 , 28 S.E.2d 725, 1944 Va. LEXIS 170, limited, Carter v. Hercules Powder Co., 182 Va. 282 , 28 S.E.2d 736, 1944 Va. LEXIS 177 (1944).

Employee’s employment exposed him to hazards over and above those to which the public is exposed where he was working within the confines of a non-air-conditioned truck, repeatedly getting into and out of a truck, emptying from 350 to 400 containers into it, and performing in temperatures which had reached almost 90 degrees. Imperial Trash Serv. v. Dotson, 18 Va. App. 600, 445 S.E.2d 716, 11 Va. Law Rep. 9, 1994 Va. App. LEXIS 436 (1994).

Accident aggravating existing disease. —

An accident to an employee, which sets in motion his undeveloped and dangerous physical condition with mortal consequences, is properly classable as the proximate cause of the fatality. Justice v. Panther Coal Co., Inc., 173 Va. 1 , 2 S.E.2d 333, 1939 Va. LEXIS 170 (1939); Rogers v. Williams, 196 Va. 39 , 82 S.E.2d 601, 1954 Va. LEXIS 198 (1954).

Claimants are entitled to compensation if an accidental injury so influenced the progress of an existing disease as to cause the employee’s death, as where death resulted from latent tuberculosis which had been aggravated and “caused to flare up” as a result of a compensable trauma. Justice v. Panther Coal Co., Inc., 173 Va. 1 , 2 S.E.2d 333, 1939 Va. LEXIS 170 (1939).

Causal connection is established when it is shown that an employee has received a compensable injury which materially aggravates or accelerates a preexisting latent disease which becomes the direct and immediate cause of death or disability. Liberty Mut. Ins. Co. v. Money, 174 Va. 50 , 4 S.E.2d 739, 1939 Va. LEXIS 140 (1939); Ellis v. Commonwealth, 182 Va. 293 , 28 S.E.2d 730, 1944 Va. LEXIS 178 (1944); Rogers v. Williams, 196 Va. 39 , 82 S.E.2d 601, 1954 Va. LEXIS 198 (1954).

When an injury sustained in an industrial accident accelerates or aggravates a preexisting condition, . . . disability resulting therefrom is compensable under the Workers’ Compensation Act. Olsten of Richmond v. Leftwich, 230 Va. 317 , 336 S.E.2d 893, 1985 Va. LEXIS 283 (1985).

Presence of a preexisting physical condition is immaterial if the injury is proximately caused by an accident arising out of and in the course of the employment. The fact that the accident in and of itself would not have been sufficient to cause the injury in the absence of a preexisting disease is no defense, for the employer takes the employee as he finds him. If the accident accelerates or aggravates a preexisting condition, the injured party is entitled to compensation. On the other hand, an injury due solely to the natural progress of the preexisting disease is not compensable. Pendleton v. Flippo Constr. Co., 1 Va. App. 381, 339 S.E.2d 210, 1986 Va. App. LEXIS 211 (1986).

Exacerbation due to negligent emergency medical treatment. —

An employee who suffered a ruptured aneurysm at work and who alleged that her injury was the aggravation, exacerbation and/or acceleration of the aneurysm due to her employer’s negligence in providing emergency medical care alleged an “accident” under the workers’ compensation act. Combs v. VEPCO, 259 Va. 503 , 525 S.E.2d 278, 2000 Va. LEXIS 38 (2000).

Usual exertion may produce accidental injury. —

When usual exertion results in actually breaking, herniating, or letting go with an obvious sudden mechanical or structural change in the body, whether external or internal, the injury is accidental. VEPCO v. Quann, 197 Va. 9 , 87 S.E.2d 624, 1955 Va. LEXIS 188 (1955).

But not when combined with preexisting disease. —

Mere exertion, which is not greater than that ordinarily incident to employment but which combines with preexisting disease to produce disability is not compensable as an “accidental injury.” Rust Eng. Co. v. Ramsey, 194 Va. 975 , 76 S.E.2d 195, 1953 Va. LEXIS 166 (1953).

Chronic ailment rendering claimant susceptible to injury. —

If death is brought about by an injury due to some mishap, or accident, happening during the course of his employment, the fact that deceased had a chronic ailment which rendered him more susceptible to such injury than an ordinary person would be, will not defeat the right to compensation. Liberty Mut. Ins. Co. v. Money, 174 Va. 50 , 4 S.E.2d 739, 1939 Va. LEXIS 140 (1939).

Injury resulting from cumulative trauma caused by physical exertions inherent in employee’s normal work is not an “injury by accident” compensable under the Workers’ Compensation Act. Kraft Dairy Group, Inc. v. Bernardini, 229 Va. 253 , 329 S.E.2d 46, 1985 Va. LEXIS 200 (1985).

Carpal tunnel syndrome caused by traumatic injury. —

Carpal tunnel syndrome may qualify as an “injury by accident” under this section or as an “occupational disease” under § 65.2-401 , depending upon its pathology or how it is incurred. Ogden Aviation Servs. v. Saghy, 32 Va. App. 89, 526 S.E.2d 756, 2000 Va. App. LEXIS 253 (2000).

A claimant who testified that he felt the sudden onset of pain extending from the fingers of his right hand to his right shoulder while connecting a fuel hose to an aircraft in extremely cold weather and that he had previously experienced no numbness or other problems with his right hand and who presented medical evidence establishing a causal connection between the injury at work and his carpal tunnel syndrome was entitled to compensation. Ogden Aviation Servs. v. Saghy, 32 Va. App. 89, 526 S.E.2d 756, 2000 Va. App. LEXIS 253 (2000).

Evidence showed sudden mechanical change and identifiable incident. —

Credible evidence supported the Commission’s decision that claimant, who injured her knee while cleaning a doughnut-making machine, suffered a sudden mechanical change in the body, i.e., sudden pain upon the locking of her knee and that it occurred during an identifiable incident, while backing out of the machine on her hands and knees. H.N. Funkhouser & Co. v. Kirby, No. 0999-91-4 (Ct. of Appeals Oct. 22, 1991).

Claimant’s back injury was compensable, where the injury resulted from his effort to lift a tire onto a conveyor belt and claimant was able to trace an obvious mechanical change in his body to an identifiable incident. Goodyear Tire & Rubber Co. v. Jones, No. 0957-90-3 (Ct. of Appeals Oct. 22, 1991).

Claimant suffered a compensable injury to the claimant’s right shoulder because the employer, by stipulating that several of the claimant’s injuries sustained in a slip and fall accident at work were compensable, conceded that the claimant suffered at least one sudden mechanical or structural change to the claimant’s body. thereafter, the claimant could prove an injury was compensable by causally connecting it to the accident, even if the claimant could not demonstrate it was connected to the mechanical or structural change. Alexandria City Pub. Schs. v. Handel, 70 Va. App. 349, 827 S.E.2d 384, 2019 Va. App. LEXIS 114 (2019), vacated, 299 Va. 191 , 848 S.E.2d 816, 2020 Va. LEXIS 115 (2020), different results reached on reh'g, No. 1582-18-4, 2021 Va. App. LEXIS 78 (Va. Ct. App. May 11, 2021).

“Sudden” structural or mechanical change proven. —

Award of temporary total disability benefits to the employee in a workers’ compensation action was proper because the record contained sufficient evidence from which the Workers’ Compensation Commission could have found that the employee suffered a sudden structural or mechanical change in his body, specifically, neck and lower spine injuries. Family Dollar Stores, Inc. v. Presgraves, 2010 Va. App. LEXIS 491 (Va. Ct. App. Dec. 21, 2010).

Sufficient evidence of accident. —

The evidence was sufficient to support the commission’ finding that the claimant had been injured in an accident where the claimant experienced pain in both knees while he was on his knees for forty-five minutes pulling fabric loose from inside a machine, and where, as soon as he removed himself from the machine, the claimant reported the incident and the pain to his supervisor. Goodyear Tire & Rubber Co. v. Harris, 35 Va. App. 162, 543 S.E.2d 619, 2001 Va. App. LEXIS 148 (2001).

Because an employee suffered an increase in symptoms and was diagnosed with sciatica after a motor vehicle accident in a company van, there was credible evidence to support a finding that the employee proved the elements of an “injury by accident.” Inner Finish Sys. v. Queen, 2005 Va. App. LEXIS 525 (Va. Ct. App. Dec. 20, 2005).

Workers’ compensation claimant sustained an injury by accident as: (1) the claimant worked three to four hours when the claimant noticed “a lot of dust and stuff in (the claimant’s) nostrils,” and the claimant began “coughing the stuff up pretty much,” (2) the claimant continued coughing and left work early the next day, and went to a physician at the first available opportunity, and (3) the claimant’s exposure to plaster dust was “bounded by rigid temporal precision.” Hoffman v. Carter, 50 Va. App. 199, 648 S.E.2d 318, 2007 Va. App. LEXIS 298 (2007).

Virginia Workers’ Compensation Commission did not err in relying upon the opinions of two doctors who treated the claimant to conclude that the claimant’s shoulder injury was caused by the claimant’s fall at work because the evidence did not show that the claimant failed to reveal the claimant’s past shoulder problems to the doctors. In addition, there was credible evidence to support the Commission’s finding that the claimant’s shoulder injury was caused by the fall and was not related to the preexisting condition. Hyatt Regency Crystal City & Hyatt Corp. v. Spencer, 2011 Va. App. LEXIS 23 (Va. Ct. App. Jan. 25, 2011).

Claimant was entitled to medical benefits and temporary total disability benefits because the evidence that the claimant felt a pop in the claimant’s lower back and had an immediate and lasting sensation of pressure while lifting crates at work along with the opinion of the claimant’s treating orthopedic surgeon supported the finding that the claimant suffered an injury by accident arising out of and in the course of the claimant’s employment. Davis & Green, Inc. v. Lowery, 2014 Va. App. LEXIS 60 (Va. Ct. App. Feb. 25, 2014).

Workers’ Compensation Commission did not err in finding that a correctional officer’s knee injury was compensable because her injury was the result of an identifiable accident occurring at a reasonably definite time; the officer did not need to point to one exact instant when the injury occurred because the injury occurred during a four-hour defensive training class and thus, was sufficiently bounded by rigid temporal precision. Riverside Reg'l Jail Auth. v. Dugger, 68 Va. App. 32, 802 S.E.2d 184, 2017 Va. App. LEXIS 177 (2017).

Workers’ Compensation Commission did not err in finding that a correctional officer’s knee injury was compensable because her injury was the result of an identifiable accident occurring at a reasonably definite time; the officer’s injury was a structural change to her body that occurred while she was engaged in her defensive training class, which was clearly work activity, and the movements during defensive training were not repetitive in nature. Riverside Reg'l Jail Auth. v. Dugger, 68 Va. App. 32, 802 S.E.2d 184, 2017 Va. App. LEXIS 177 (2017).

Virginia Workers’ Compensation Commission did not err by awarding medical benefits to the claimant because he proved that his injury occurred during a reasonable definite time and was a compensable injury by accident as the evidence established that he fractured his wrist on August 18, 2017, during an afternoon training session that consisted of four hours of punching drills; his wrist was not swollen at the beginning of the day’s training and he first noticed swelling in his wrist within 60 to 90 minutes after he had finished the punching drills. DMV/Commonwealth v. Bandy, 2019 Va. App. LEXIS 100 (Va. Ct. App. Apr. 30, 2019).

Facts not showing accidental injury. —

While claimant was engaged in painting furniture for his employer, with a small spray gun, from which the spray was released by pressure from the thumb on a button, he noticed that the end of his thumb was a little sore. A bone felon developed and a physician said that the trouble either came from a bruise or an infected abrasion. There was nothing to indicate that it came from an abrasion, and claimant himself stated that it came from a bruise. Therefore, there was no accident as that term is defined by the Workmen’s (now Workers’) Compensation Act. Hurd v. Hesse & Hurt, 161 Va. 800 , 172 S.E. 289 , 1934 Va. LEXIS 303 (1934).

Where the evidence submitted by claimant did not show that there was an “obvious sudden mechanical or structural change” in his body, or that there was any causal connection between his work-induced exertion and the physical change which he did experience, and he presented no medical opinion to show that his injury was work-connected, he failed to sustain his burden of proving injury “by accident.” Tomko v. Michael's Plastering Co., 210 Va. 697 , 173 S.E.2d 833, 1970 Va. LEXIS 186 (1970).

Finding of the Commission that injury of employee, who suffered an acute lumbosacral strain, involved one gradual progression of events during the day, despite employee’s contention that in picking up a shovel at the end of the day he suffered a new compensable injury or a compensable aggravation of his morning injury, and that the employee had not sustained the burden of proving that he had suffered an injury by accident that arose out of his employment would be upheld. Pendleton v. Flippo Constr. Co., 1 Va. App. 381, 339 S.E.2d 210, 1986 Va. App. LEXIS 211 (1986).

Where a worker’s preexisting asthma was exacerbated by general environmental triggers, there was not an injury by accident and the claimed workplace exposures did not qualify as compensable injuries by accident. Deard v. Riverside Reg'l Med. Ctr., 2003 Va. App. LEXIS 429 (Va. Ct. App. Aug. 12, 2003).

Claimant’s workers’ compensation claim relating to injury to his knee was properly denied as he failed to present evidence that he sustained injury by accident pursuant to § 65.2-101 . Given the spectrum of potential non-work-related causes of the claimant’s knee injury in evidence and the absence of any medical evidence supporting the claimant’s testimony that his knee problems were caused by the work accident, reasonable minds could conclude that the claimant had failed to satisfy his burden of proof on the issue of causation. Myers v. Madison Wood Preservers, 2012 Va. App. LEXIS 217 (Va. Ct. App. July 3, 2012).

Workers’ Compensation Commission erred in finding that a claimant had an “injury by accident” to her right shoulder because there was no credible evidence that she “suffered an actual mechanical or structural change” in her shoulder during her workplace accident since her symptoms of limited motion and “squeaking” did not manifest until more than a year after her accident, and, even assuming, without deciding, that her new shoulder problems constituted mechanical or structural changes, it could not be concluded that they occurred suddenly during her workplace accident, and absent any showing of a close temporal relationship to her fall, her symptoms could simply reflect an injury resulting from repetitive trauma, continuing mental or physical stress, or other cumulative events rather than an injury by accident. Alexandria City Pub. Sch. v. Handel, 2021 Va. App. LEXIS 78 (Va. Ct. App. May 11, 2021).

Virginia Workers’ Compensation Commission did not err in finding that claimant did not suffer a compensable injury by accident under Va. Code Ann. § 65.2-101 , because his version of events was not credible as the medical records indicated that claimant sustained his injury when he fell down steps; not when he struck his knee on a ladder rung. The emergency room records indicated at least a year-long history of knee pain and buckling before the work-related incident occurred—an inconsistency which claimant could not explain. Mitchell v. Weather Control, Inc., 2021 Va. App. LEXIS 179 (Va. Ct. App. Oct. 5, 2021).

Employer’s actions committed with intent to injure employee. —

Defendant employer’s actions committed with intent to injure employee did not constitute “accidents” under this section and employee’s suit for intentional infliction of emotional distress was not barred by the exclusivity provision of the Virginia Workers’ Compensation Act. McGreevy v. Racal-Dana Instruments, Inc., 690 F. Supp. 468, 1988 U.S. Dist. LEXIS 6655 (E.D. Va. 1988).

C.Arising Out of and in the Course of.

1.Generally.

The “arising out of employment” and “course of employment” tests are different and independent tests and courts must apply them separately to each situation. County of Chesterfield v. Goyne, 26 Bankr. 47, 1982 Bankr. LEXIS 5318 (Bankr. E.D. Va. 1982).

Employee injured on the employer’s premises is entitled to compensation if the injury occurs as the result of an activity reasonably expected to be carried on by the employee during the course of his work, be it personal or directly work related; accordingly, plaintiff would be barred from recovery only if the activity resulting in the injury was not an activity reasonably expected of an employee under the conditions of the employment. Jones v. Colonial Williamsburg Found., 8 Va. App. 432, 382 S.E.2d 300, 6 Va. Law Rep. 104, 1989 Va. App. LEXIS 91 (1989) (see also 10 Va. App. 521, 392 S.E.2d 848 (1990)).

Virginia has adopted the “actual risk test,” which requires only that the employment expose the workman to the particular danger from which he was injured, notwithstanding the exposure of the public generally to like risks. Lucas v. Lucas, 212 Va. 561 , 186 S.E.2d 63, 1972 Va. LEXIS 208 (1972); Olsten of Richmond v. Leftwich, 230 Va. 317 , 336 S.E.2d 893, 1985 Va. LEXIS 283 (1985).

In Virginia, the “actual risk” test determines whether an injury arises out of employment. Under this test, an injury arises out of employment if the injury follows as a natural incident of the work and could have been contemplated by one familiar with the whole situation. Francisco v. O’Sullivan Indus., No. 0469-91-3 (Ct. of Appeals Oct. 22, 1991).

Under the actual risk test, a claimant’s injury arises out of the employment if the manner in which the employer requires the work to be performed is causally related to the resulting injury. Southside Virginia Training Center v. Ellis, 33 Va. App. 824, 537 S.E.2d 35, 2000 Va. App. LEXIS 757 (2000).

In determining whether a work-related injury is compensable and, under this test, the causative danger must be peculiar to the work, incidental to the character of the business and not independent of the master-servant relationship. The test excludes injuries which the employee would have been equally exposed to apart from the employment. Dan River, Inc. v. Giggetts, 34 Va. App. 297, 541 S.E.2d 294, 2001 Va. App. LEXIS 61 (2001).

The mere happening of an accident at the workplace, not caused by any work-related risk or significant work related exertion, is not compensable, and a claimant must establish that the conditions of the workplace or some significant work related exertion caused the injury, such that the arising out of test excludes an injury which comes from a hazard to which the employee would have been equally exposed apart from the employment. Helfer v. Va. Dep't of Rehabilitative Servs., 2003 Va. App. LEXIS 224 (Va. Ct. App. Apr. 15, 2003).

Accident must arise both “out of” and “in the course of” employment to be compensable. —

Under this section, an accident resulting in injury or death of an employee must arise out of and in the course of the employment, before compensation can be awarded. Kent v. Va.-Carolina Chemical Co., 143 Va. 62 , 129 S.E. 330 , 1925 Va. LEXIS 246 (1925); Griffith v. Raven Red Ash Coal Co., 179 Va. 790 , 20 S.E.2d 530, 1942 Va. LEXIS 275 (1942); Grimes v. Janney-Marshall Co., 183 Va. 317 , 32 S.E.2d 76, 1944 Va. LEXIS 156 (1944); Grand Union Co. v. Bynum, 226 Va. 140 , 307 S.E.2d 456, 1983 Va. LEXIS 279 (1983).

An injury suffered by an employee while engaged in his master’s business within the scope of his employment proximately resulting from the negligence of fellow employees is, as to the employee, an “accident” arising out of and in the course of his employment. Brown v. Reed, 209 Va. 562 , 165 S.E.2d 394, 1969 Va. LEXIS 143 (1969).

Terms “arising out of” and “in the course of” are used conjunctively, and both conditions must concur before compensation will be awarded. Dreyfus & Co. v. Meade, 142 Va. 567 , 129 S.E. 336 , 1925 Va. LEXIS 360 (1925); Sullivan v. Suffolk Peanut Co., 171 Va. 439 , 199 S.E. 504 , 1938 Va. LEXIS 296 (1938); A.N. Campbell & Co. v. Messenger, 171 Va. 374 , 199 S.E. 511 , 1938 Va. LEXIS 287 (1938); Reserve Life Ins. Co. v. Hosey, 208 Va. 568 , 159 S.E.2d 633, 1968 Va. LEXIS 149 (1968); Lucas v. Lucas, 212 Va. 561 , 186 S.E.2d 63, 1972 Va. LEXIS 208 (1972); Baggett Transp. Co. v. Dillon, 219 Va. 633 , 248 S.E.2d 819, 1978 Va. LEXIS 224 (1978); Fouts v. Anderson, 219 Va. 666 , 250 S.E.2d 746, 1979 Va. LEXIS 157 (1979).

“Arising out of” and “in the course of” are used conjunctively and are not synonymous. Both conditions must be satisfied before compensation can be awarded. Graybeal v. Board of Supvrs., 216 Va. 77 , 216 S.E.2d 52, 1975 Va. LEXIS 251 (1975); VPI & State Univ. v. Wood, 5 Va. App. 72, 360 S.E.2d 376, 4 Va. Law Rep. 621, 1987 Va. App. LEXIS 271 (1987).

These terms are not synonymous. Bradshaw v. Aronovitch, 170 Va. 329 , 196 S.E. 684 , 1938 Va. LEXIS 191 (1938); Southern Motor Lines Co. v. Alvis, 200 Va. 168 , 104 S.E.2d 735, 1958 Va. LEXIS 172 (1958); Conner v. Bragg, 203 Va. 204 , 123 S.E.2d 393, 1962 Va. LEXIS 129 (1962).

The phrases “arising out of” and “in the course of” the employment are not synonymous, and the claimant must establish both conditions by a preponderance of the evidence before compensation will be awarded. R & T Invs., Ltd. v. Johns, 228 Va. 249 , 321 S.E.2d 287, 1984 Va. LEXIS 196 (1984); Metcalf v. A.M. Express Moving Sys., 230 Va. 464 , 339 S.E.2d 177, 1986 Va. LEXIS 147 (1986); Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 437 S.E.2d 727, 10 Va. Law Rep. 613, 1993 Va. App. LEXIS 580 (1993), limited, Bernard v. Carlson Cos. - TGIF, 60 Va. App. 400, 728 S.E.2d 508, 2012 Va. App. LEXIS 236 (2012).

“Arising out of” and “in the course of” not totally independent concepts. —

Although “arising out of” and “in the course of” are separate and distinct concepts, the two are not totally independent; frequently proof of one will incidentally tend to establish the other. VPI & State Univ. v. Wood, 5 Va. App. 72, 360 S.E.2d 376, 4 Va. Law Rep. 621, 1987 Va. App. LEXIS 271 (1987).

Each case is determined on its particular facts. —

Whether an injury to an employee in an industrial business arose “out of and in the course of the employment” of the injured employee may be very difficult to determine under some circumstances, and it is practically impossible to formulate any one definition that will include every injury embraced in these words, and will exclude all injuries not embraced therein, and little help toward the correct determination of the question in a particular case is derived from the consideration of other cases involving different circumstances. Honaker & Feeney v. Hartley, 140 Va. 1 , 124 S.E. 220 , 1924 Va. LEXIS 152 (1924).

Whether an injury is incident to or connected with a particular business, that is, whether it arises out of and in the course of the employment, depends upon the peculiar circumstances of each case. No exact rule can be formulated by which every case can be decided. Railway Express Agency v. Lewis, 156 Va. 800 , 159 S.E. 188 , 1931 Va. LEXIS 232 (1931); Sullivan v. Suffolk Peanut Co., 171 Va. 439 , 199 S.E. 504 , 1938 Va. LEXIS 296 (1938).

Test is general character of undertaking. —

The test is whether the general character of the undertaking in which the deceased was engaged at the time of the accident arose out of and in the course of his employment. Kent v. Va.-Carolina Chemical Co., 143 Va. 62 , 129 S.E. 330 , 1925 Va. LEXIS 246 (1925).

Not the same test as whether servant acted within scope of employment. —

The test for determining whether an accidental injury arose out of and in the course of the employment, within the meaning of this section, was not the same as the test for determining whether a servant acted within the scope of his employment under the doctrine of respondeat superior. Sayles v. Piccadilly Cafeterias, Inc., 242 Va. 328 , 410 S.E.2d 632, 8 Va. Law Rep. 1254, 1991 Va. LEXIS 147 (1991).

The phrase “out of and in the course of his employment,” broadly defined, covers those accidents which befall an employee while he is discharging some duty he is authorized or directed to perform for the furtherance, directly or indirectly, of his employer’s business. Cohen v. Cohen's Dept. Store, 171 Va. 106 , 198 S.E. 476 , 1938 Va. LEXIS 261 (1938).

The phrase “arising out of and in the course of the employment” covers those accidents which cause injury to an employee while he is discharging some duty he is authorized to perform in furtherance of his employer’s business, either directly or indirectly. Lucas v. Lucas, 212 Va. 561 , 186 S.E.2d 63, 1972 Va. LEXIS 208 (1972).

Is to be liberally construed. —

The words “arising out of and in the course of the employment” are to be liberally construed. Bradshaw v. Aronovitch, 170 Va. 329 , 196 S.E. 684 , 1938 Va. LEXIS 191 (1938); Cohen v. Cohen's Dept. Store, 171 Va. 106 , 198 S.E. 476 , 1938 Va. LEXIS 261 (1938); Norfolk & Wash. Steamboat Co. v. Holladay, 174 Va. 152 , 5 S.E.2d 486, 1939 Va. LEXIS 149 (1939); Lynchburg Foundry Co. v. Irvin, 178 Va. 265 , 16 S.E.2d 646, 1941 Va. LEXIS 162 (1941); County of Chesterfield v. Goyne, 26 Bankr. 47, 1982 Bankr. LEXIS 5318 (Bankr. E.D. Va. 1982).

The phrase “arising out of” the employment should receive a liberal construction in order to effectuate the humane and beneficent purposes of the Act. Southern Motor Lines Co. v. Alvis, 200 Va. 168 , 104 S.E.2d 735, 1958 Va. LEXIS 172 (1958); City of Richmond v. Johnson, 202 Va. 33 , 115 S.E.2d 910, 1960 Va. LEXIS 187 (1960); Reserve Life Ins. Co. v. Hosey, 208 Va. 568 , 159 S.E.2d 633, 1968 Va. LEXIS 149 (1968); Baggett Transp. Co. v. Dillon, 219 Va. 633 , 248 S.E.2d 819, 1978 Va. LEXIS 224 (1978).

The words of the statute “arising out of and in the course of the employment” should be liberally construed to carry out the humane and beneficent purpose of the Workmen’s (now Workers’) Compensation Act; the expressions are used conjunctively and are not synonymous; both conditions must be present before compensation can be awarded; the words “arising out of” have been construed to refer to the origin or cause of the injury, and the words “in the course of” refer to the time, place and circumstances under which the accident occurred; and an accident 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 incident thereto. Brown v. Reed, 209 Va. 562 , 165 S.E.2d 394, 1969 Va. LEXIS 143 (1969).

The words “arising out of and in the course of employment” are to be liberally construed to carry out the humane and beneficent purpose of the Workmen’s (now Workers’) Compensation Act. Lucas v. Lucas, 212 Va. 561 , 186 S.E.2d 63, 1972 Va. LEXIS 208 (1972).

Voluntary act of employee causing injury. —

If the voluntary act of an employee which causes an injury is sufficiently related to what the employee is required to do in fulfilling his contract of service, or is one in which someone in a like capacity may or must do in the interest of his employer’s business, the fact that the employee was not actually required to perform the act will not impair his right to recover compensation. Lucas v. Lucas, 212 Va. 561 , 186 S.E.2d 63, 1972 Va. LEXIS 208 (1972).

To bar an employee from the protection of workmen’s (now workers’) compensation benefits because he voluntarily acted in his employer’s interest would be to discourage constructive initiative, which is not a desirable result. Lucas v. Lucas, 212 Va. 561 , 186 S.E.2d 63, 1972 Va. LEXIS 208 (1972).

Virginia has long recognized the personal comfort doctrine, which recognizes the human need for periodic rest and refreshment; thus occasional breaks and excursions for food, drink, rest and restroom visitation are deemed to be in the course of employment; such activities benefit the employer by enhancing feasibility and desirability of employment, good physical and mental conditioning of his employees, and the cultivation of good employment relationships. Ablola v. Holland Rd. Auto Center, Ltd., 11 Va. App. 181, 397 S.E.2d 541, 7 Va. Law Rep. 648, 1990 Va. App. LEXIS 179 (1990).

Virginia has adopted the personal comfort doctrine, under which an employee who seeks to satisfy his personal comfort, such as seeking to quench his thirst at a place provided by the employer, is within the employment. Kraf Constr. Servs., Inc. v. Ingram, 17 Va. App. 295, 437 S.E.2d 424, 10 Va. Law Rep. 539, 1993 Va. App. LEXIS 548 (1993).

Application of personal comfort doctrine to traveling employee. —

If the employer provides the employee a satisfactory place to satisfy his personal comfort, the employee must use that place or risk the loss of compensation; however, when the employee is traveling and no such place to satisfy the employee’s personal comfort is provided, a different rule applies, and such rule is whether the activity of quenching one’s thirst is incidental to the travel or employment or a “frolic” of one’s own. Kraf Constr. Servs., Inc. v. Ingram, 17 Va. App. 295, 437 S.E.2d 424, 10 Va. Law Rep. 539, 1993 Va. App. LEXIS 548 (1993).

Injury while engaged in an activity of a personal nature. —

The fact that an employee is engaged in an activity of a personal nature, in itself, is not a sufficient basis for denying compensation to an employee injured on the employer’s premises. Jones v. Colonial Williamsburg Found., 8 Va. App. 432, 382 S.E.2d 300, 6 Va. Law Rep. 104, 1989 Va. App. LEXIS 91 (1989) (see also 10 Va. App. 521, 392 S.E.2d 848 (1990)).

Activity which was personal in nature was compensable. —

Even though employee’s activity of throwing away trash at the time of injury was personal in nature and even though she had not reported for work, the activity on the premises which precipitated the injury was so incidental to the employment as to be expected of the employee during the course of employment. Jones v. Colonial Williamsburg Found., 8 Va. App. 432, 382 S.E.2d 300, 6 Va. Law Rep. 104, 1989 Va. App. LEXIS 91 (1989).

Derivative injury. —

Credible evidence in the record supported the Virginia Workers’ Compensation Commission’s finding that the claimant’s back and neck injuries were compensable consequences that arose during treatment in 2018 rather than original injuries sustained at the time of her compensable industrial accident in 2017 because the claimant described the onset of the pain she experienced during her exercises as running across her shoulders and neck, on the right side, and then down her spine into the lower part of her back, she said that the pain was “really bad in the lower part” and her back “started going out on [her]” after that, and not until she experienced these more extreme sensations in discrete parts of her back and neck did she seek medical treatment specifically for those body parts. Masonite Corp. v. Dean, 2020 Va. App. LEXIS 279 (Va. Ct. App. Nov. 10, 2020).

Speculation. —

Although the Workers’ Compensation Commission can draw inferences from the facts before it, the inference of a connection between the conditions of employment and the knee injury in this case fell into the realm of speculation; there was no defect with respect to the stairs on which the claimant fell, and the weight the claimant bore was not particularly heavy, but the Commission rested its decision on an inference that the claimant’s carrying of strollers established a causal connection, but this was speculative, and the evidence thus failed to establish that the accident arose out of the claimant’s employment. United Airlines, Inc. v. Taylor, 2016 Va. App. LEXIS 72 (Va. Ct. App. Mar. 15, 2016).

Evidence was sufficient to find that employee who suffered from cryptococcal meningitis caused by massive exposure to a fungus found in dried pigeon droppings in the course of employment, which resulted in incurable imbecility, rendered him permanently unemployable; the record contained ample evidence of irreversible and severe limitations and reductions of the nonvocational quality of his life, eliminating his ability to engage in many usual cognitive processes. Mister Kleen Maintenance Co. v. Clark, 17 Va. App. 474, 438 S.E.2d 304, 10 Va. Law Rep. 652, 1993 Va. App. LEXIS 634 (1993).

The commission found that claimant failed to prove that his disability and resulting medical treatment were caused by an injury by accident occurring at a specific time and place. The commission noted that, at most, the evidence established a non-compensable gradual development of symptoms. These findings were supported by claimant’s testimony, as well as the histories contained in the medical records, both of which suggested a gradual increase in symptoms over a period of at least three months. Krenisky v. Professional Coatings N. Am., Inc., 1997 Va. App. LEXIS 163 (Va. Ct. App. Mar. 25, 1997).

Injury undetected because of neuropathy. —

On the date of the injury, claimant credibly testified to driving directly home after work, and he confirmed that he did not walk over non-work areas where these used fasteners would have been lying around; he testified that he had seen used fasteners on the floor just about every day in the service bays where he worked, and because these used fasteners created a hazardous condition in the workplace as claimant performed his duties, and this hazardous condition caused his injury, it arose out of his employment. Farrish of Fairfax v. Faszcza, 2020 Va. App. LEXIS 173 (Va. Ct. App. June 16, 2020).

Evidence sufficient. —

Where a worker’s testimony and a doctor’s medical records and opinions proved that the worker sustained an injury by accident during her employment that became more severe when the worker bent over later in the evening, the workers’ compensation commission’s decision was supported by credible evidence. CJW Med. Ctr. & Assur. Co. v. Payne, 2003 Va. App. LEXIS 210 (Va. Ct. App. Apr. 8, 2003).

Evidence was sufficient to establish that a fatal accident arose out of and in the course of employment, where: (1) the decedent had been told to repair a lift; (2) he was found with the necessary tools; and (3) his body was in a position that would have allowed him to perform the repair had he not been killed. These facts led to the conclusion that he was attempting to adjust the lift when the accident occurred. Va. Linen Serv. v. Wise, 2005 Va. App. LEXIS 224 (Va. Ct. App. June 7, 2005).

There was sufficient evidence that a claimant’s injuries from a fall were attributable to a risk of employment and thus compensable. The workers’ compensation commission made specific findings based on direct and circumstantial evidence and the logical inferences drawn from that evidence, finding that the claimant was in an awkward position attempting to get out of a front-end loader while also attempting to lean in and check the brakes. City of Waynesboro v. Griffin, 51 Va. App. 308, 657 S.E.2d 782, 2008 Va. App. LEXIS 102 (2008).

Claimant was properly denied workers’ compensation benefits because he failed to show that a tendon injury, which occurred as he stepped into a truck while at work, arose out of the course of his employment under § 65.2-101 because there was no medical or other record evidence establishing that a spasm or stepping into the truck caused the ruptured tendon. Haley v. Springs Global U.S., Inc., 54 Va. App. 607, 681 S.E.2d 62, 2009 Va. App. LEXIS 369 (2009).

Evidence insufficient. —

Claimant was properly denied workers’ compensation benefits where she failed to prove that she sustained a compensable injury arising in and out of her employment; evidence that the claimant was exposed only to tobacco smells, not smoke, and was also exposed to other allergens or environmental irritants on the day in question failed to support the claimant’s allegation that her exposure to tobacco smells while riding in the employer’s vehicle caused an aggravation of her pre-existing asthma condition. Fauntleroy v. Surry County Sch. Bd., 2003 Va. App. LEXIS 625 (Va. Ct. App. Dec. 9, 2003).

Where the claimant had no memory of an accident in which his tractor/trailer ran off the road and overturned, he could not prove his injury arose out of his employment. The Virginia Workers’ Compensation Commission was correct in denying benefits. Hill v. Southern Tank Transp., Inc., 44 Va. App. 725, 607 S.E.2d 730, 2005 Va. App. LEXIS 28 (2005).

Because the Workers’ Compensation Commission utilized an increased risk, rather than an actual risk test, hinging its award purely upon findings relating the physical characteristics of the employer’s premises to a propensity of the location itself to receive a lightning strike, and because the employee failed in her burden of proving causation, an award of benefits to said employee was erroneous. Rivanna Water & Sewer Auth. v. LaFleur, 2007 Va. App. LEXIS 458 (Va. Ct. App. Dec. 18, 2007).

Workers’ Compensation Commission properly awarded an employee temporary total disability and medical benefits for an injury to his right knee because his injury occurred at a discreet time when he stood up from kneeling and digging, his work duties required him to work in an unusual and awkward position, credible evidence supported the Commission’s causation determination and its finding that the employee’s marketing was reasonable, in light of his education and experience, as well as the nature of his work restrictions. Dixie Constr. Co. v. Stokes, 2020 Va. App. LEXIS 71 (Va. Ct. App. Mar. 17, 2020).

2.Arising Out of.

“Arising out of” refers to the time, place and circumstances under which the accident takes place. By the use of these words, it was not the intention of the legislature to make the employer an insurer against all accidental injuries which might happen to the employee while in the course of the employment, but only for such injuries from or growing out of the risks peculiar to the nature of the work, in the scope of the workmen’s employment or incidental to such employment, and accidents to which the employee is exposed in a special degree by reason of such employment. Risks to which all persons similarly situated are equally exposed and not traceable in some special degree to the particular employment are excluded. Dreyfus & Co. v. Meade, 142 Va. 567 , 129 S.E. 336 , 1925 Va. LEXIS 360 (1925); Crane v. Richmond Memorial Hospital, 222 Va. 283 , 278 S.E.2d 877, 1981 Va. LEXIS 302 (1981).

“Arising out of” refers to origin or cause of injury. Bradshaw v. Aronovitch, 170 Va. 329 , 196 S.E. 684 , 1938 Va. LEXIS 191 (1938); Southern Motor Lines Co. v. Alvis, 200 Va. 168 , 104 S.E.2d 735, 1958 Va. LEXIS 172 (1958); Conner v. Bragg, 203 Va. 204 , 123 S.E.2d 393, 1962 Va. LEXIS 129 (1962); Reserve Life Ins. Co. v. Hosey, 208 Va. 568 , 159 S.E.2d 633, 1968 Va. LEXIS 149 (1968); Baggett Transp. Co. v. Dillon, 219 Va. 633 , 248 S.E.2d 819, 1978 Va. LEXIS 224 (1978); Fouts v. Anderson, 219 Va. 666 , 250 S.E.2d 746, 1979 Va. LEXIS 157 (1979); County of Chesterfield v. Goyne, 26 Bankr. 47, 1982 Bankr. LEXIS 5318 (Bankr. E.D. Va. 1982); R & T Invs., Ltd. v. Johns, 228 Va. 249 , 321 S.E.2d 287, 1984 Va. LEXIS 196 (1984); Winegar v. ITT, 1 Va. App. 260, 337 S.E.2d 760, 1985 Va. App. LEXIS 96 (1985); Hercules, Inc. v. Stump, 2 Va. App. 77, 341 S.E.2d 394, 1986 Va. App. LEXIS 244 (1986); VPI & State Univ. v. Wood, 5 Va. App. 72, 360 S.E.2d 376, 4 Va. Law Rep. 621, 1987 Va. App. LEXIS 271 (1987).

The words “arising out of” refer to the origin or cause of the accident and are descriptive of its character. Dreyfus & Co. v. Meade, 142 Va. 567 , 129 S.E. 336 , 1925 Va. LEXIS 360 (1925); Grand Union Co. v. Bynum, 226 Va. 140 , 307 S.E.2d 456, 1983 Va. LEXIS 279 (1983).

An accident arises out of the employment when the origin or cause of the injury relates to the employment. There must be a causal connection between the employee’s injury and the conditions under which the work is required to be performed. Metcalf v. A.M. Express Moving Sys., 230 Va. 464 , 339 S.E.2d 177, 1986 Va. LEXIS 147 (1986).

An accident arising in the course of the employment is one which occurs within the period of employment, at a place where the employee may reasonably be expected to be, and while he is reasonably fulfilling the duties of his employment or is doing something which is reasonably incidental thereto. Metcalf v. A.M. Express Moving Sys., 230 Va. 464 , 339 S.E.2d 177, 1986 Va. LEXIS 147 (1986).

Claimant in this instance was not specifically required to look for the truck which struck him while descending stairs, but was clearly responsible for “maintaining a fleet of 82 trucks, and taking care of and supervising the drivers.” Where claimant testified that he fell because he was “trying to do two work-related things at once, look out the window for the driver and walk down the stairs, the way in which claimant performed this aspect of his job increased his risk of falling on this occasion and directly contributed to cause his fall. His injury occurred because of the performance of his job duties in a particular manner.” Accordingly, the commission’s decision that the accident arose from claimant’s employment was affirmed, but because the commission did not address employer’s contention that the evidence was insufficient to prove a causal relationship between the accident and alleged injury, remand was required for resolution of that issue. Commercial Courier Express, Inc. v. Cairns, 1997 Va. App. LEXIS 159 (Va. Ct. App. Mar. 25, 1997).

And requires causal connection between work conditions and injury. —

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. But 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 does not arise “out of” the employment. Norfolk & Wash. Steamboat Co. v. Holladay, 174 Va. 152 , 5 S.E.2d 486, 1939 Va. LEXIS 149 (1939).

The words “arising out of” mean there must be a reasonable causal connection between the employee’s work and the resultant injury or death. A risk is incidental to the employment when it belongs to or is connected with what the employee has to do in fulfilling his contract of service. Such a risk may be incidental to the employment when it is either an ordinary risk directly connected with the employment or an extraordinary risk which is only indirectly connected therewith, depending upon the special nature of the employment. Southern Motor Lines Co. v. Alvis, 200 Va. 168 , 104 S.E.2d 735, 1958 Va. LEXIS 172 (1958).

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. Under this test, if 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 it 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 workman would have been equally exposed apart from the employment. The causative danger must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. Baggett Transp. Co. v. Dillon, 219 Va. 633 , 248 S.E.2d 819, 1978 Va. LEXIS 224 (1978).

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. Reserve Life Ins. Co. v. Hosey, 208 Va. 568 , 159 S.E.2d 633 (1968); Brown v. Reed, 209 Va. 562 , 165 S.E.2d 394 (1969); Lucas v. Lucas, 212 Va. 561 , 186 S.E.2d 63 (1972); Fouts v. Anderson, 219 Va. 666 , 250 S.E.2d 746 (1979); County of Chesterfield v. Goyne, 26 Bankr. 47 (Bankr. E.D. Va. 1982); Richmond King, Inc. v. Poling, No. 0816-85 (Ct. of Appeals Jan. 8, 1986).

A showing of causal connection is sufficient to establish that an injury arises out of the employment. Reserve Life Ins. Co. v. Hosey, 208 Va. 568 , 159 S.E.2d 633, 1968 Va. LEXIS 149 (1968).

The “arising out of” requirement refers to causation, only incidentally related to considerations of time and space, and must be satisfied by a showing of causal connection between work and injury. Graybeal v. Board of Supvrs., 216 Va. 77 , 216 S.E.2d 52, 1975 Va. LEXIS 251 (1975).

Based upon claimant’s denial of any injury in her reports of the November 2, 1994 incident to her coworkers and supervisors and her failure to report any specific injury or trauma to her initial medical providers, the commission was entitled to conclude that claimant had not proved that her injuries were caused by the November 2, 1994, work-related incident. Bayouth v. Pizza Hut, Inc., 1997 Va. App. LEXIS 162 (Va. Ct. App. Mar. 25, 1997).

“Arises out of” unless deviation to point of frolic. —

So long as employee had not so deviated from the employment as to be deemed “on a frolic of his own,” employee’s accident is considered to arise out of his employment. Kraf Constr. Servs., Inc. v. Ingram, 17 Va. App. 295, 437 S.E.2d 424, 10 Va. Law Rep. 539, 1993 Va. App. LEXIS 548 (1993).

Injury after deviation chosen by employer had ended. —

In taking an employee to the destination he requested after work, an employer was fulfilling his agreement to provide transportation to and from work, and the injuries sustained by the employee in accident while being driven by the employer arose out of and in the course of his employment even though, after work, the employer and employee had stopped at a friend’s house to socialize and consume alcoholic beverages before resuming the trip back from work; this did not involve an employee who so materially deviated from the employment-related purposes of his trip as to constitute a frolic of his own, in that it was the employer who had chosen to deviate from the route back, and that deviation had ended when the employer and employee resumed their trip to the destination chosen by the employee. Vaughan's Landscaping & Maint. v. Dodson, 262 Va. 270 , 546 S.E.2d 437, 2001 Va. LEXIS 64 (2001).

Claimant must show work-related exertion caused injury. —

In order to prove the “arising out of” prong, claimant must show that the conditions of the workplace or that some significant work-related exertion caused the injury. Hayes v. Reynolds Metals Co., 1992 Va. App. LEXIS 326 (Va. Ct. App. May 19, 1992).

Claimant did not engage in any significant exertion, her lifting of empty plastic water basin did not involve any awkward movement or position, and no condition or hazard peculiar to her workplace caused her injury; she therefore failed to prove as a matter of law that her injury arose out of her employment. Huffman v. Carilion Roanoke Mem. Hosp., 1999 Va. App. LEXIS 523 (Va. Ct. App. Sept. 14, 1999).

Injuries did not arise out of employment. —

An injury to the claimant’s ankle did not arise out of her employment where, at the time of the injury, the claimant was standing with both feet on the floor, slightly bent at the waist with her arms outstretched in preparation for lifting a patient, but that she had not yet lifted the patient or exerted any effort in preparation to do so. Bickell v. Lake Taylor Hospital, 1998 Va. App. LEXIS 586 (Va. Ct. App. Nov. 24, 1998).

A claimant’s injury to her wrist allegedly caused by answering the telephone did not arise out of her employment where the evidence established that her simple act of picking up the telephone receiver did not involve any significant exertion or awkward position and that no condition or hazard peculiar to her workplace caused her injury aside from the usual act of answering the telephone. The simple act of answering the telephone under these circumstances did not constitute an actual risk of the employment. Farnia v. Prime Receivables, LLC, 2000 Va. App. LEXIS 710 (Va. Ct. App. Nov. 7, 2000).

Claimant who drove a package pickup and delivery truck and was struck by lightning as she entered her truck after getting a package was properly denied benefits where she had proved that she sustained an injury by accident in the course of her employment, but she did not meet her burden of showing that the injuries sustained arose out of her employment; the court found that she did not prove that the employment activity exposed her to the injurious risk to a greater degree than one would be ordinarily exposed. Lucas v. Fed. Express Corp., 41 Va. App. 130, 583 S.E.2d 56, 2003 Va. App. LEXIS 381 (2003).

Contention made by a decedent employee’s estate that the evidence failed to prove that the decedent’s injuries arose out of his employment in herding cattle was rejected, as said evidence: (1) failed to conclusively establish that the vehicle the decedent was driving had any connection to the decedent’s injuries; (2) failed to conclusively show that the cattle being herded caused the injuries; and (3) failed to show any medical reason for said injuries in which an inference could be drawn concerning causation. Estate of Helton v. Elk Garden Cattle Co., 2005 Va. App. LEXIS 136 (Va. Ct. App. Apr. 5, 2005).

Evidence did not support the Virginia Workers’ Compensation Commission’s conclusion under § 65.2-101 that a workers’ compensation claimant’s injury, occurring when she fell as she entered her workplace, arose out of her employment as there was no evidence that the claimant tripped on a rolled up rug, as the Commission concluded; instead, the claimant testified only that she had seen a rug rolled up on prior occasions. County of Washington Soc. Servs. v. Rouse, 2007 Va. App. LEXIS 409 (Va. Ct. App. Nov. 13, 2007).

Dismissal of a decedent’s estate administrator’s action, seeking recovery of damages for personal injury and resulting death after a co-worker assaulted the decedent by using a defibrillator on the decedent, resulting in death due to cardiac arrest and electrocution, was error, as the injury did not arise out of the employment, such that under §§ 65.2-101 and 65.2-307 , it was not within the exclusive remedy coverage of the Virginia Worker’s Compensation Act; the co-worker’s assault was purely personal on the decedent, and the employer’s workplace requirements had no causal connection with the risk of injury by assault. Hilton v. Martin, 275 Va. 176 , 654 S.E.2d 572, 2008 Va. LEXIS 18 (2008).

Denial of temporary disability benefits to the claimant in a workers’ compensation action was appropriate because, although he argued that his injury arose out of his employment, asserting that the conditions of the patrol car parked on a 30-degree incline, the cramped interior of the patrol car, and the full uniform and gear, which weigh 25 to 30 pounds, caused him to injure his left knee when he exited the patrol car, none of the admitted medical reports mentioned any of those conditions. Maas v. Loudoun County, 2011 Va. App. LEXIS 120 (Va. Ct. App. Apr. 5, 2011).

Virginia Workers’ Compensation Commission did not err in denying an employee benefits for injuries he sustained as a result of a spider bite he received while cleaning his work area in a storage area because the employee failed to prove by a preponderance of the evidence that his injury arose out of his employment; the employee, a forklift battery exchanger, was bitten by a spider while cleaning under the battery rack station, not while he was in the storage area, and since nothing in the record indicated the proximity of the battery rack station to the storage area, the employee did not demonstrate the necessary “critical link” between the conditions of the workplace and the spider bite. Wilson v. Ace Hardware Corp., 2011 Va. App. LEXIS 158 (Va. Ct. App. May 10, 2011).

Virginia Workers’ Compensation Commission did not err in finding that the injuries of a workers’ compensation benefits claimant did not arise out of her employment under § 65.2-101 because the Commission considered claimant’s entire medical record related to her fall, as well as the testimony of the witnesses, including claimant’s recorded statement to employer’s representative; claimant’s recorded statement to the employer’s representative was simply additional evidence of claimant’s inability to provide a consistent explanation for how she fell. Rodrigues v. Arlington County Sch., 2012 Va. App. LEXIS 141 (Va. Ct. App. May 1, 2012).

Virginia Workers’ Compensation Commission did not err by denying a claim for benefits because credible evidence supported the finding of the Commission that a claimant’s injury, which was sustained while the claimant was taking an agility test for field work, did not arise in the course of his employment as he was applying for field work on his own initiative and for his own advancement. Whitt v. Halliburton Energy Servs., 2012 Va. App. LEXIS 156 (Va. Ct. App. May 15, 2012).

Commission properly found that a claimant’s knee injury did not arise out of her employment as required by § 65.2-101 because the injury occurred while the claimant was walking in a rush at a school; while the record showed that the injury occurred during the claimant’s employment, it did not establish that her injury arose from her employment. Further, nothing in the record suggested that an emergency situation was created on this particular day by the claimant’s being delayed for a few minutes from being with the autistic student in the teacher’s classroom. Gobashi v. Fairfax County Pub. Sch., 2012 Va. App. LEXIS 389 (Va. Ct. App. Dec. 4, 2012).

Claimant did not prove that the weight of the 30 to 40 pound tray and/or the way it was held contributed to her misstep on a flight of stairs and that her injuries arose out of her employment where she testified that: (1) because the tray prevented her from seeing her feet, she had learned to count her steps so that she knew where she was on the staircase; (2) she stepped on the tenth step with the same placement of her foot as she had on the previous steps; and (3) she did not step on a foreign object or slip on anything. Dianna v. Colonial Williamsburg Co., 2013 Va. App. LEXIS 317 (Va. Ct. App. Nov. 5, 2013).

Virginia Workers’ Compensation Commission did not err by denying the claimant workers’ compensation benefits for injuries he sustained when he fell from the bed of a pickup truck while delivering airplane parts for his employer because he failed to establish that his accident arose from the conditions of his employment, as he failed to offer an explanation for the cause of his fall. The claimant could not remember any details concerning his fall, his co-worker’s testimony failed to explain the cause of the claimant’s fall, and the record failed to establish that he fell due to any work-related duties or environmental conditions. Hersl v. United Airlines, Inc., 2014 Va. App. LEXIS 351 (Va. Ct. App. Oct. 21, 2014).

Workers’ compensation claimant’s injury did not arise out of her employment under the actual risk test as a doorway threshold was not defective and the claimant was not at a heightened risk because of her employment as although there was a slight rise in the threshold, the rise was not uneven or irregular, the claimant had crossed the threshold before, and she believed she had raised her foot sufficiently high to have cleared the threshold; further, the claimant was not distracted as although she was having a discussion with her supervisors while crossing the threshold, she did not testify that this conversation contributed to her fall. Vick v. Hampton Rds. Transit, 2015 Va. App. LEXIS 86 (Va. Ct. App. Mar. 24, 2015).

Virginia Workers’ Compensation Commission properly denied a police officer workers’ compensation benefits for an injury he sustained when he slipped on a stairway because the circumstantial evidence did not establish that a defect in the stairway contributed to the officer’s injury; the homeowner’s statements could not be construed as proof establishing the existence of a defect, and the officer failed to present any other evidence affirmatively establishing a defect caused him to slip. Echevarria v. City of Chesapeake, 2016 Va. App. LEXIS 269 (Va. Ct. App. Oct. 18, 2016).

Workers’ Compensation Commission’s decision that a claimant had not proven by a preponderance of the evidence that his fall arose out of his employment was affirmed where his interrogatory answer that he tripped himself, his description of the incident to health care providers after the fall, his recorded statement to the insurance claim supervisor, and his claim forms supported the factual finding that he simply and inexplicably fell while ascending the non-defective steps. Mojares v. Rk Chevrolet, 2016 Va. App. LEXIS 318 (Va. Ct. App. Nov. 22, 2016).

Virginia Workers’ Compensation Commission did not err in denying the claimant’s benefits claim as the claimant’s employment did not expose him to a hazard or risk that resulted in his injury because the claimant, while kneeling, reached approximately two feet into the ground and unclipped a transmitter from a meter and, while rising, he twisted to his right and felt a “pop” in his back; the claimant acknowledged that he was not in an awkward position at the time of his injury and that the relatively flat area surrounding the meter did not require him to exert any physical effort to kneel; and there were no contributing environmental factors surrounding claimant’s normal act of rising from a squatting position. Nelson v. Town of Christiansburg, 2017 Va. App. LEXIS 248 (Va. Ct. App. Oct. 3, 2017).

Virginia Workers’ Compensation Commission did not err in denying an employee benefits because the employee failed to establish that his injuries were caused by an actual risk of his employment; credible evidence supported the Commission’s determination that the employee was injured when he merely stood from a bent position after placing an angle iron on a tarp, and as the injuries were not caused by some work condition or activity, they were not compensable. Shrewsberry v. Martinsville Mach. Works, Inc., 2018 Va. App. LEXIS 56 (Va. Ct. App. Mar. 6, 2018).

Appellant’s injury was not caused by a work related risk or significant work related exertion and thus did not arise out of his employment, for purposes of § 65.2-101 ; he did not exert any heavy force when he pulled the plastic wrap slowly and he was not in an awkward position peculiar to his work when the injury occurred. Bowers v. Amazon.com, 2019 Va. App. LEXIS 297 (Va. Ct. App. Dec. 17, 2019).

Claimant failed to prove by a preponderance of the evidence that her injuries arose out of her employment. The evidence presented failed to prove by a preponderance that the uneven surface of a sidewalk caused the claimant to fall. Choinski v. Va. State Univ., 2020 Va. App. LEXIS 81 (Va. Ct. App. Mar. 31, 2020).

Record supported the Virginia Workers’ Compensation Commission’s ruling that the claimant did not prove that his injury arose out of his employment because the facts in the record surrounding how he exited the van and what work-related factors might have contributed to his injury were virtually nonexistent. The claimant testified that the manner in which he exited the van was normal, and the record did not indicate the height of the step required to exit the van or what he was carrying. Reynolds v. Falletta Enters., 2021 Va. App. LEXIS 10 (Va. Ct. App. Jan. 26, 2021).

Accident at workplace not caused by work-related risk not compensable. —

The mere happening of an accident at the workplace, not caused by any work-related risk or significant work-related exertion, is not compensable. Hayes v. Reynolds Metals Co., 1992 Va. App. LEXIS 326 (Va. Ct. App. May 19, 1992).

Causal relationship may exist despite exposure of general public to same hazard. —

An accident arises out of the employment if there is a causal connection between the claimant’s injury and the conditions under which the employer requires the work to be performed. The mere fact that the hazard is one to which the general public likewise is exposed is not, however, conclusive against the existence of such causal relationship. R & T Invs., Ltd. v. Johns, 228 Va. 249 , 321 S.E.2d 287, 1984 Va. LEXIS 196 (1984).

Causation is an essential element which must be proven by a claimant in order to receive an award of compensation for an injury by accident under the Virginia Workers’ Compensation Act. Amp, Inc. v. Ruebush, 10 Va. App. 270, 391 S.E.2d 879, 6 Va. Law Rep. 2321, 1990 Va. App. LEXIS 85 (1990).

Causation established by medical expert witness. —

Credible evidence supported the Virginia Workers’ Compensation Commission’s decision that a claimant’s back injury was causally related to the claimant’s accident that occurred at work because the expert opinion of the treating orthopedic surgeon established a causal connection between the accident and the follow-up medical treatment and surgery. Davis & Green, Inc. v. Lowery, 2014 Va. App. LEXIS 60 (Va. Ct. App. Feb. 25, 2014).

Causation. —

Virginia Workers’ Compensation Commission properly found that a claimant’s knee injury was caused by the October 28, 2009, work accident based on: (1) the claimant’s immediate complaints of knee pain and irregularities revealed by the examination after the accident; (2) the initial treating physicians’ notations of an acute knee injury; (3) a doctor’s review of the claimant’s new and old x-rays and his opinion that the claimant suffered from a patellar fracture resulting from the work-related fall that had not properly healed; and (4) the independent medical examiner’s agreement that the original x-rays showed irregularities and acknowledgment of the possibility of a patellar fracture. Giant Food LLC & Indem. Ins. Co. of N. Am. v. Wu, 2013 Va. App. LEXIS 69 (Va. Ct. App. Mar. 5, 2013).

Workers’ Compensation Commission did not err in entering a supplemental award for medical benefits because the timing of an employee’s hearing loss coincided with her work-related accident and the testimony of the employee and her physicians provided credible evidence from which the Commission could determine that the employee’s hearing loss was causally related to her work-related accident. Sykes Enters. v. Cox, 2014 Va. App. LEXIS 73 (Va. Ct. App. Mar. 11, 2014).

Workers’ compensation commission did not err in finding that the claimant had failed to establish that her injury arose out of her employment, as the claimant was never able to explain why she began to fall and never testified that she began to fall because of a wet kitchen floor, and the commission was entitled to infer that the cause of her loss of balance was simply not explained by the record. Sanchez-Castro v. Arlington County Sch., 2014 Va. App. LEXIS 353 (Va. Ct. App. Oct. 14, 2014).

Photographs showed that the fastener’s location in claimant’s shoe was consistent with the puncture wound in his foot, and claimant’s duties required him to visit the service bays daily, where fasteners and other debris were on the floor; because credible evidence showed a causal connection between the incident, stepping on the fastener, and the bodily change, the puncture wound in claimant’s foot, claimant satisfied the final component of injury by accident, causation. Farrish of Fairfax v. Faszcza, 2020 Va. App. LEXIS 173 (Va. Ct. App. June 16, 2020).

Virginia Workers’ Compensation Commission did not err in finding that the claimant’s seizures were not compensable as they were not causally related to a workplace injury because the medical diagnostic tests related to the claimant’s seizures did not establish any causal connection between his workplace injury and his seizures; and no unequivocal medical opinion established a causal link between his workplace injury and his seizures. Sibai v. Sterling Jewelers, 2020 Va. App. LEXIS 316 (Va. Ct. App. Dec. 29, 2020).

Because the Virginia Workers’ Compensation Commission found that the claimant’s seizures were not compensable as they were not causally related to his workplace injury, the claimant was not entitled to temporary total disability benefits in connection with the left shoulder injury he sustained when he fell down the stairs during a seizure. Sibai v. Sterling Jewelers, 2020 Va. App. LEXIS 316 (Va. Ct. App. Dec. 29, 2020).

Credible evidence supported the Workers’ Compensation Commission’s findings that claimant sustained a compensable neck injury; causation was shown, as the treating physicians’ records contained notes that claimant’s neck was injured in her workplace injury fall. Although claimant might have had a prior diagnosis of neck problems, there was no evidence she had previously received treatment for a neck condition. Richmond Pub. Sch. v. Coy, 2021 Va. App. LEXIS 163 (Va. Ct. App. Aug. 31, 2021).

Being greeted by clap on back. —

Injury to police officer from being clapped on back was caused by personal greeting of one officer to another and did not arise from an actual risk connected with employment, and therefore claimant failed to prove that his injury arose out of his employment. Johnson v. County of Henrico Police, 2000 Va. App. LEXIS 18 (Va. Ct. App. Jan. 18, 2000).

Being struck by lightning that passed through telephone switchboard. —

Employee who claimed that she was struck by lightning that passed through a telephone switchboard she was required to use to perform her job was not eligible for disability compensation and medical benefits under the Virginia Workers’ Compensation Act because her job did not increase the risk that she would be struck. Va. Empl. Comm'n v. Hale, 43 Va. App. 379, 598 S.E.2d 327, 2004 Va. App. LEXIS 304 (2004).

Injury received while bending and picking up. —

Injuries resulting from simple acts of bending or turning, absent a contributing factor from the workplace, are not compensable. In this case, the claimant merely bent over to pick up a virtually weightless object. He was not in a confined space or awkward position. Therefore, the injury did not occur out of the employment. Colosimo v. Virginia Truck Ctr., Inc., 1997 Va. App. LEXIS 127 (Va. Ct. App. Mar. 18, 1997).

An employee whose back went out as he was standing up after bending over to place a tray on a cart during the course of his employment was not entitled to compensation for his back injury since the action of bending was neither unusual, awkward, nor something that the employee was required to do on a repetitive basis and because merely bending over is a risk to which the general public is equally exposed. Southside Virginia Training Center v. Ellis, 33 Va. App. 824, 537 S.E.2d 35, 2000 Va. App. LEXIS 757 (2000).

Where a workers’ compensation claimant who was employed as a security officer testified that the claimant suffered a back injury when the claimant bent over to clean a hubcap on a car during an employer-sponsored fundraising car wash, credible evidence supported the finding of the Virginia Workers’ Compensation Commission that the claimant’s injury was caused merely by bending over and not by work-related exertion or by working in an awkward position, and that the injury, therefore, did not arise out of the claimant’s employment. Crews v. Gateway 2000, 2003 Va. App. LEXIS 84 (Va. Ct. App. Feb. 19, 2003).

Res judicata bars relitigation of causation in industrial accident. —

The issue of causation in cases involving an industrial accident, however, is not an issue subject to change and should, therefore, ordinarily be barred from relitigation by the doctrine of res judicata once a final judgment has been entered. Amp, Inc. v. Ruebush, 10 Va. App. 270, 391 S.E.2d 879, 6 Va. Law Rep. 2321, 1990 Va. App. LEXIS 85 (1990).

Standard of proof. —

To recover benefits, the claimant must establish by a preponderance of the evidence that he suffered an injury by accident “arising out of and in the course of his employment,” and that the conditions of the workplace caused the injury. Falls Church Constr. Corp. v. Valle, 21 Va. App. 351, 464 S.E.2d 517, 1995 Va. App. LEXIS 898 (1995).

Workers’ compensation claimant failed to meet her burden of proof that her fall from a platform while changing a gas price number sign was causally related to her job as a cashier; her unqualified admission that she did not know how or why she fell from the platform, coupled with her slender factual description of the conditions at the time of the fall, left the commission unpersuaded as to the causal connection between her injury and the work that she was employed to perform. Sutton v. Speedy's Petroleum, Inc., 2008 Va. App. LEXIS 50 (Va. Ct. App. Jan. 29, 2008).

In a case in which an employee was returning from smoking a cigarette during her morning break in her employer’s parking lot and she hit a ball hitch attached to a pickup truck, causing her to fall to the ground, she unsuccessfully appealed the Virginia Workers’ Compensation Commission’s denial of her claim for benefits for injuries. While it was undisputed that the employee’s injury occurred in the course of her employment, she failed to prove by a preponderance of the evidence that her injury arose out of her employment. Angelo v. Stihl, Inc., 2009 Va. App. LEXIS 476 (Va. Ct. App. Oct. 27, 2009).

Injuries arose out of employment. —

Credible evidence proved that, at the time worker was injured in automobile accident, his travel on the highway directly linking Richmond where his headquarters were located and Milford place where he was to complete an assignment was travel which he was authorized and obligated to perform; therefore, the hazards of highway travel became necessary incidents of his employment, and showed that his injuries arose out of employment. Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 437 S.E.2d 727, 10 Va. Law Rep. 613, 1993 Va. App. LEXIS 580 (1993), limited, Bernard v. Carlson Cos. - TGIF, 60 Va. App. 400, 728 S.E.2d 508, 2012 Va. App. LEXIS 236 (2012).

Credible evidence proved that employee’s employment duties required his presence on the highway and that his injuries thereon arose out of his employment; the accident occurred while employee was on a mission for his employer that required his presence on the road where he was subject to risks associated with the highway. He was traveling to the Fredericksburg office by the most direct route, and there was no deviation from his mission. Moreover, employee’s description of the accident provides credible evidence to support the commission’s conclusion that employee’s injuries were caused by a risk of the street occasioned by his employment. His testimony established that an oncoming vehicle veered into his lane of travel, causing him to lose control of his vehicle. Independent Life & Accident Ins. Co. v. Johnson, 1994 Va. App. LEXIS 520 (Va. Ct. App. Aug. 2, 1994).

Because correctional officer’s job responsibilities caused him to watch the tower guards rather than the steps, how he performed his job provided the “critical link” between the conditions of the workplace and the injury, and therefore, his injury arose out of his employment. Marion Correctional Treatment Ctr. v. Henderson, 20 Va. App. 477, 458 S.E.2d 301, 1995 Va. App. LEXIS 502 (1995).

Claimant proved that the sudden “zig-zag” movement he made to avoid a collision with the cleaning people was incidental to his work, therefore, his knee injury arose out of his employment. Teagle & Little, Inc. v. Balchunis, 1995 Va. App. LEXIS 955 (Va. Ct. App. July 25, 1995).

The employee 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 the employee performed were either required by his employment or were reasonably incidental thereto. As such, his injury arose in the course of his employment. Therefore, the commission’s determination that the employee’s injury by accident arose out of and in the course of his employment was supported by credible evidence. Stratford & Monticello Square Apts. v. Sharp, 1996 Va. App. LEXIS 226 (Va. Ct. App. Apr. 2, 1996).

Where claimant’s work involved operating knitting machines, and in order to reload the yarn on the bottom-most creels of a machine, claimant was required to perform a deep knee-bend to reach their location two inches above the floor, and where the operation of the knitting machines required claimant to perform these deep knee-bends approximately 200 times each twelve hour shift, the commission did not err when it concluded that claimant’s injury, a torn medial meniscus, arose out of her employment. Furthermore, the injury was not a cumulative trauma caused by a repetitive motion. Bassett-Walker, Inc. v. Wyatt, 26 Va. App. 87, 493 S.E.2d 384, 1997 Va. App. LEXIS 713 (1997).

Although salesman’s diabetic condition may have caused his automobile accident, the requirement that he routinely travel by automobile to meet with customers subjected him to the risk of injury by accident and increased the dangerous effects of the injury that he received, and thus his injury arose out of his employment. Royster Clark, Inc. v. Bays, 1999 Va. App. LEXIS 674 (Va. Ct. App. Dec. 14, 1999).

An employee who suffered a ruptured aneurysm over her lunch break while participating in an aerobics class sponsored by the employer and who alleged that her injury was the aggravation, exacerbation and/or acceleration of the aneurysm due to her employer’s negligence in providing emergency medical care alleged an injury arising out of her employment. Combs v. VEPCO, 259 Va. 503 , 525 S.E.2d 278, 2000 Va. LEXIS 38 (2000).

Back injury suffered by a convenience store manager when straightening up after having been in an awkward, kneeling position for five minutes attempting to clear a paper jam in a computer printer was a compensable injury arising out of and in the course of the manager’s employment. Fas Mart, Inc. v. Fox, 2001 Va. App. LEXIS 658 (Va. Ct. App. Dec. 4, 2001).

Where a workers’ compensation claimant’s back injury occurred while the claimant, a shuttle bus driver, was leaning over a passenger in a wheelchair in order to unbuckle the straps that secured the wheelchair, the Virginia Workers’ Compensation Commission properly found that the back injury arose out of the claimant’s employment within the meaning of § 65.2-101 of the Virginia Workers’ Compensation Act, as the record indicated that the injury occurred while the claimant was performing a task necessary to the job and claimant was in an awkward position attributable to the passenger’s unique circumstances. Jaunt, Inc. v. Clement, 2003 Va. App. LEXIS 20 (Va. Ct. App. Jan. 21, 2003).

Where an employee suffered an injury to her knee, because her foot did not naturally follow the turn of her upper body due to a two-inch thick rubber mat she was standing on which produced some unmeasured degree of friction between itself and the employee’s foot, the injury to her knee arose out of the scope of her employment; further, the employee explained that she had never had any problems with her knees, legs, or feet, and that she wore the same tennis shoes she ordinarily wore on the job when the injury occurred. Teleflex Auto. Mfg. Corp. v. Honaker, 2004 Va. App. LEXIS 170 (Va. Ct. App. Apr. 13, 2004).

Where a kennel employee was struck by cars while crossing a highway in an attempt to retrieve an escaped dog, it was not error to find that the injury arose out of the employee’s employment, because: (1) it was reasonable to find that it was among the employee’s duties to attempt to retrieve loosed animals, even if the animal left the premises and crossed the highway since supervisors had instructed employees to participate in animal retrieval tasks that required crossing the highway on a previous occasion; and (2) the incident was not unexplained. Town & Country Animal Hosp. v. Deardorff, 2008 Va. App. LEXIS 278 (Va. Ct. App. June 10, 2008).

Virginia Workers’ Compensation Commission did not err in finding that a workers’ compensation claimant’s injury arose out of her employment because the Commission properly applied the “actual risk test” and could properly infer from the facts that but for the claimant’s job duties and the physical obstacles confronting her, she could have avoided injury since the claimant’s performance of her job increased the risk of injury by diverting attention from the danger of an approaching vehicle; the court of appeals could not find that nothing in the claimant’s work environment contributed to her injury. Green Hand Nursery, Inc. v. Loveless, 55 Va. App. 134, 684 S.E.2d 818, 2009 Va. App. LEXIS 498 (2009).

Finding in favor of the employee in a workers’ compensation action was appropriate because the employee’s moving the cases of beer was an activity “arising out of” her employment. Additionally, even if the activity was not required by the employer, it was not prohibited by the employer and was in furtherance of the employer’s interest. Food Lion, LLC v. Otey, 2011 Va. App. LEXIS 181 (Va. Ct. App. May 24, 2011).

Worker’s Compensation Commission properly concluded that an employee’s injuries arose out of his employment under § 65.2-101 as the evidence established more than simply an injury that came from a hazard to which the employee would have been equally exposed apart from the employment. Specifically, the evidence showed that the claimant was required to load heavy merchandise in vehicles for as many as 30 customers each day, that the specific manner in which the customers’ vehicles were positioned for loading required the employee to give directions to customers while they backed their cars up to the curbside loading area, and that the employee was struck by the vehicle of the very same customer who purchased the television that the employee was preparing to load. Sears Roebuck & Co. v. Martin, 2011 Va. App. LEXIS 162 (Va. Ct. App. May 10, 2011).

Award of workers’ compensation benefits to the employee, a nurse, was appropriate because the test was not whether the actual call on her cell phone while she was driving was from the employer, but whether the injury could fairly be traced to the employment as a contributing proximate cause. Her injuries arose out of employment. Wythe County Cmty. Hosp. v. Turpin, 2011 Va. App. LEXIS 299 (Va. Ct. App. Oct. 4, 2011).

Virginia Workers’ Compensation Commission (Commission) properly found that the claimant’s injury arose out of her employment under § 65.2-101 where the claimant fell because her purse was caught on a hook located on a merchandise shelf in a grocery store aisle; the Commission’s finding that the hook was peculiar to the claimant’s grocery store workplace and was not common to the neighborhood was entitled to deference under subsection A of § 65.2-706 . Giant Food LLC & Indem. Ins. Co. of N. Am. v. Wu, 2013 Va. App. LEXIS 69 (Va. Ct. App. Mar. 5, 2013).

While a workers’ compensation claimant had no recollection of the accident or its cause, circumstantial evidence proved that his accident and injury arose out of his employment as: (1) logging was a dangerous enterprise; (2) before the accident, the grabbers on a skidder were not working properly; (3) the claimant had been operating the skidder earlier in the morning; and (4) when a co-worker approached the machine after the accident, he saw that the claimant was unconscious, slumped over the steering wheel, and that a tree had penetrated the back window opening of the skidder. Va. Tree Harvesters, Inc. v. Shelton, 62 Va. App. 524, 749 S.E.2d 556, 2013 Va. App. LEXIS 325 (2013).

Credible evidence supported the Workers’ Compensation Commission’s finding that the metal stripping that was in a doorway was defective and caused the claimant’s workplace accident and subsequent injuries; the Commission, which awarded medical benefits to the claimant, did not err when it determined that the claimant’s injuries arose out of her employment as required by this section. VCU Health Sys. Authority-Wc & Vcu Health Sys. Auth. v. Booth, 2014 Va. App. LEXIS 340 (Va. Ct. App. Oct. 14, 2014).

Claimant’s description of her accident met the “arising out of” standard under this section where, while working at a drive-thru window, she bent, jerked, and twisted to catch a bag of french fries in order to advance the employer’s business. Gene Forbes Enters. v. Cooper, 2015 Va. App. LEXIS 195 (Va. Ct. App. June 9, 2015).

Credible evidence supported the Workers’ Compensation Commission’s findings that an employee’s injuries arose out of an actual risk of his employment because when he was injured he was clearing the employer’s property, and the process was an act of manual labor that required the use of a company-owned forklift; the clearing was on the employer’s property, from where he operated his business, required manual labor, involved the use of company machinery, and was done for a business purpose. McCluster v. Baltazar, 2017 Va. App. LEXIS 308 (Va. Ct. App. Dec. 5, 2017).

Workers’ Compensation Commission properly affirmed a deputy commissioner’s award to an employee for temporary total disability benefits for injury to her left knee and ankle after she slipped on a grassy slope while walking from an abutting parking lot to the school where she worked because the treating physician opined that the fall aggravated her underlying knee condition “and/or” caused the need for the knee surgery, and the record contained more than ample credible evidence to support the finding that the employee’s accident caused an injury to her left knee and that the employer did not communicate to the employee that she was not supposed to take the course she took between the parking lot and the employer’s property. Quest for Excellence Learning v. Newsom, 2021 Va. App. LEXIS 124 (Va. Ct. App. July 20, 2021).

Workers’ Compensation Commission did not err in finding that claimant’s injuries arose out of his employment; while closing the shop as part of his regular duties and stepping under the quickly closing bay door, his left foot dragged on an incline and he tripped and fell. In moving quickly to avoid being locked out, claimant’s movement was awkward. The slope was substantial enough to contribute to his fall, and the Commission did not err in finding that stepping sideways over the elevation was a work-related risk. Magic City Ford Lincoln Isuzu Trucks v. Kerr, 2021 Va. App. LEXIS 160 (Va. Ct. App. Aug. 31, 2021).

Injury arose out of peculiar conditions of employment. —

Virginia Workers’ Compensation Commission applied the appropriate standard of causation to the case, finding the injury arose out of and in the course of the peculiar conditions of the employee’s employment. The Commission’s finding that the employee’s work, in the heat, standing on the road, without food or water, resulted in the heatstroke and heart attack, was based on credible evidence. Kjellstrom & Lee, Inc. v. Saunders, 42 Va. App. 673, 594 S.E.2d 281, 2004 Va. App. LEXIS 126 (2004).

Workers’ Compensation Commission erred in denying a workers’ compensation claimant’s claim for benefits as the claimant proved by a preponderance of the evidence that his injury arose out of his employment under § 65.2-101 , in that, in the unique circumstances of the case, the claimant’s action in sliding down from a raised chair for his feet to reach the ground to accomplish his job-related tasks was not an action that he would have been equally exposed to apart from the conditions of his employment. The undisputed evidence showed that the claimant had to contort his body to slide down from the raised chair before his feet would reach the ground eight inches below each time that the doorbell to the infirmary rang. Dovell v. Coffeewood Corr. Center, 2012 Va. App. LEXIS 17 (Va. Ct. App. Jan. 24, 2012).

Virginia Workers’ Compensation Commission did not err in finding that the claimant suffered a compensable injury that arose out of her employment because the claimant’s employment required her to maneuver around a water stack after closing out the register for the day; as she was doing so, her left foot caught the corner of the water stack, resulting in the injury; and the Commission was entitled to conclude that the water stack, around which the claimant was required to maneuver as a part of her employment, was a workplace hazard peculiar to the claimant’s workplace and not common to the neighborhood. Dollar Tree Stores, Inc. v. Wilson, 64 Va. App. 103, 765 S.E.2d 151, 2014 Va. App. LEXIS 395 (2014).

Claimant was entitled to workers’ compensation benefits for injuries resulting from a spider bite which the claimant sustained at work because the claimant’s injury arose out of the claimant’s employment as credible evidence demonstrated a causative danger that was peculiar to the claimant’s workplace and both a physical and temporal proximity between a peculiar or unusual workplace condition-construction work in a boiler room below the claimant’s office suite causing a proliferation of spiders in the office suite-and the claimant’s injury. James Madison Univ. v. Housden, 2020 Va. App. LEXIS 63 (Va. Ct. App. Mar. 10, 2020).

Claimant’s injury arose out of her employment and was compensable under the Workers’ Compensation Act as she was injured when she was placing an elderly woman from the residential facility where she worked into a car; the manner in which the claimant was required to perform the task was sufficiently awkward; and the injury to the claimant’s back was caused by exertion on an occasion that was peculiar to her employment. CJ Designs Inc. v. Williams, 2021 Va. App. LEXIS 97 (Va. Ct. App. June 15, 2021).

Heat stroke arose out of employment. —

Virginia Workers’ Compensation Commission did not err in finding that the claimant’s heat stroke arose out his employment working as a temporary laborer for the employer who had contracted him to work on the trash collection company’s trash truck; competent evidence showed that the heat stroke occurred because the claimant worked a long day which was hot and humid, that he walked alongside the truck or rode on it for most of the day in conditions that provided no shade, and that the long garbage collection route did not offer any shade, either. Labor Finders of Va., Inc. v. Baldivieso, 2005 Va. App. LEXIS 51 (Va. Ct. App. Feb. 8, 2005).

Presence of ice. —

Claimant failed to present sufficient evidence from which the Workers’ Compensation Commission could infer that ice was present on a walk-in freezer floor on which she slipped. Because the claimant did not provide sufficient evidence concerning her fall or the condition of the walk-in freezer floor, the Commission did not err in concluding that the claimant’s injury did not arise out of her employment. Lewis v. Covenant Holdings Grp., LLC, 2018 Va. App. LEXIS 153 (Va. Ct. App. June 5, 2018).

Professional football players. —

Professional football player’s injuries were includable in the definition of “injury” because the player’s conditions of employment exposed him to hazards beyond that of the public at large. Pro-Football, Inc. v. Uhlenhake, 37 Va. App. 407, 558 S.E.2d 571, 2002 Va. App. LEXIS 46 (2002), aff'd in part, 265 Va. 1 , 574 S.E.2d 288, 2003 Va. LEXIS 17 (2003).

Claims arising from occupational diseases pursued more than once. —

Unlike claims based on injury by accident, claims arising from an occupational disease may be pursued more than once when based on different medical evidence establishing the disease. Amp, Inc. v. Ruebush, 10 Va. App. 270, 391 S.E.2d 879, 6 Va. Law Rep. 2321, 1990 Va. App. LEXIS 85 (1990).

To be compensable, injury must grow out of risks particular to the nature of the work. Risks to which all persons similarly situated are equally exposed and not traceable to some special degree to the particular employment are excluded. Hercules, Inc. v. Stump, 2 Va. App. 77, 341 S.E.2d 394, 1986 Va. App. LEXIS 244 (1986).

Meter reader failed to prove as a matter of law that his back injury arose out of his employment, where he did not engage in any significant exertion, his simple act of picking up a three-pound handheld computer and turning to exit truck did not involve any awkward position, and no condition or hazard peculiar to his workplace caused his injury. Crawford v. Virginia Elec. & Power, 1999 Va. App. LEXIS 555 (Va. Ct. App. Oct. 5, 1999).

The injury does not have to result from an unusual or defective condition; rather, it must be caused by conditions which are particularly related to or associated with the work or work environment. Hercules, Inc. v. Stump, 2 Va. App. 77, 341 S.E.2d 394, 1986 Va. App. LEXIS 244 (1986).

Risk not shared by general public required under “actual risk” test. —

To be compensated under the “actual risk” test, the claimant’s injury must arise from a risk not shared by the general public. Hill City Trucking, Inc. v. Christian, 5 Va. App. 106, 360 S.E.2d 867, 4 Va. Law Rep. 688, 1987 Va. App. LEXIS 223 (1987), different results reached on reh'g, 7 Va. App. 78, 371 S.E.2d 575, 5 Va. Law Rep. 271, 1988 Va. App. LEXIS 95 (1988).

Under the “actual risk” test, if 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 it 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 worker would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. Hill City Trucking, Inc. v. Christian, 5 Va. App. 106, 360 S.E.2d 867, 4 Va. Law Rep. 688, 1987 Va. App. LEXIS 223 (1987), different results reached on reh'g, 7 Va. App. 78, 371 S.E.2d 575, 5 Va. Law Rep. 271, 1988 Va. App. LEXIS 95 (1988).

An injury does not arise out of the employment when it cannot fairly be traced to the employment as a contributing proximate cause and comes from a hazard to which the workmen would have been equally exposed apart from the employment; the causative danger must be peculiar to the work and not common to the neighborhood. Southside Virginia Training Center v. Ellis, 33 Va. App. 824, 537 S.E.2d 35, 2000 Va. App. LEXIS 757 (2000).

Under the actual risk test, the employee must establish that he was at greater risk of injury as a result of his employment than the general public and must prove a causal connection between the manner in which the employer required the work to be performed and the resulting injury. STG, Inc. v. Tooks, 2001 Va. App. LEXIS 329 (Va. Ct. App. June 12, 2001).

If there is a causal relationship between the injury and the workers’ compensation claimant’s work responsibilities, the risk may indeed be “common to the neighborhood,” and a denial of benefits because the risk is “common to the neighborhood” presupposes the risk is not peculiar to the claimant’s work; the former is simply an alternative way of requiring causation between the injury and the claimant’s work, and if the injury can fairly be traced to the employment as a contributing proximate cause, it matters not that the danger is common to the neighborhood. Green Hand Nursery, Inc. v. Loveless, 55 Va. App. 134, 684 S.E.2d 818, 2009 Va. App. LEXIS 498 (2009).

“Positional risk” doctrine not adopted in Virginia. —

Virginia has refused to embrace the “positional risk” doctrine under which an injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he was injured. Hill City Trucking, Inc. v. Christian, 5 Va. App. 106, 360 S.E.2d 867, 4 Va. Law Rep. 688, 1987 Va. App. LEXIS 223 (1987), different results reached on reh'g, 7 Va. App. 78, 371 S.E.2d 575, 5 Va. Law Rep. 271, 1988 Va. App. LEXIS 95 (1988).

Presumption injury “arose out of” employment limited in death cases. —

The presumption that an injury “arose out of” employment was limited in its application to death cases. Pinkerton's, Inc. v. Helmes, 242 Va. 378 , 410 S.E.2d 646, 8 Va. Law Rep. 1314, 1991 Va. LEXIS 150 (1991).

In this case, the cause of employee’s accident was unknown. As the commission noted, plaintiffs could not point to any evidence which indicated that his fall was caused by a risk of his employment. Therefore, only if plaintiffs were entitled to a presumption that employee’s injuries arose out of his employment would they be entitled to workers’ compensation benefits; the presumption does not apply to a case such as this one, where employee was not found dead at the scene of the accident, but rather died approximately one month later. Warlitner v. McDonald’s McCopco No. 05161/McDonald’s Corp., No. 2958-96-1 (Ct. of Appeals Mar. 25, 1997).

Where a decedent was killed in a motorcycle accident, the presumption that his death arose out of his employment for purposes of § 65.2-101 did not apply where the decedent’s widow testified equivocally that the decedent was riding his motorcycle on a work errand after Sunday dinner but there was no evidence to corroborate the assertion that the decedent was delivering paper work to his bookkeeper, and further, the decedent’s body was found on a public highway that was not at or near his work place. Clifton v. Clifton Cable Contr., LLC, 54 Va. App. 532, 680 S.E.2d 348, 2009 Va. App. LEXIS 361 (2009).

Recreational activity arises out of employment if accepted and normal activity. —

An injury sustained as a result of recreational activity arises out of employment only when the activity is an accepted and normal activity within the employment. Mullins v. Westmoreland Coal Co., 10 Va. App. 304, 391 S.E.2d 609, 6 Va. Law Rep. 2356, 1990 Va. App. LEXIS 84 (1990).

Previously experienced back pain was immaterial. —

Where claimant experienced a sudden onset of pain in her back as a result of pulling a cart, the fact that she had previously experienced back pain was immaterial in light of the fact that there was sufficient evidence to show that she sustained an injury at a specific time, arising out of a specific incident, which proximately caused her disability. Canon Va., Inc. v. Pendleton, No. 0602-90-1 (Ct. of Appeals Oct. 2, 1990).

3.In the Course of.

“In the course of” refers to time, place, and circumstances under which injury occurred. Bradshaw v. Aronovitch, 170 Va. 329 , 196 S.E. 684 , 1938 Va. LEXIS 191 (1938); Dreyfus & Co. v. Meade, 142 Va. 567 , 129 S.E. 336 , 1925 Va. LEXIS 360 (1925); Southern Motor Lines Co. v. Alvis, 200 Va. 168 , 104 S.E.2d 735, 1958 Va. LEXIS 172 (1958); Conner v. Bragg, 203 Va. 204 , 123 S.E.2d 393, 1962 Va. LEXIS 129 (1962); Baggett Transp. Co. v. Dillon, 219 Va. 633 , 248 S.E.2d 819, 1978 Va. LEXIS 224 (1978); Fouts v. Anderson, 219 Va. 666 , 250 S.E.2d 746, 1979 Va. LEXIS 157 (1979); Grand Union Co. v. Bynum, 226 Va. 140 , 307 S.E.2d 456, 1983 Va. LEXIS 279 (1983); R & T Invs., Ltd. v. Johns, 228 Va. 249 , 321 S.E.2d 287, 1984 Va. LEXIS 196 (1984); VPI & State Univ. v. Wood, 5 Va. App. 72, 360 S.E.2d 376, 4 Va. Law Rep. 621, 1987 Va. App. LEXIS 271 (1987).

Person who claimed benefits under the Workers’ Compensation Act had to prove an injury by accident arising out of and in the course of the employment; “in the course of” referred to the time, place, and circumstances under which the accident occurred. Boys & Girls Club of Va. v. Marshall, 37 Va. App. 83, 554 S.E.2d 104, 2001 Va. App. LEXIS 590 (2001).

Evidence proved that worker’s injury occurred “in the course of the employment” because at the time the accident occurred, he was returning to Richmond from the photography assignment, that assignment was an integral part of his employment duties, and he was injured on a highway that was the shortest and most direct route between his employer’s headquarters and the place where he performed his assigned duties. Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 437 S.E.2d 727, 10 Va. Law Rep. 613, 1993 Va. App. LEXIS 580 (1993), limited, Bernard v. Carlson Cos. - TGIF, 60 Va. App. 400, 728 S.E.2d 508, 2012 Va. App. LEXIS 236 (2012).

Injury in course of employment shown. —

An employee who suffered a ruptured aneurysm over her lunch break while participating in an aerobics class sponsored by the employer and who alleged that her injury was the aggravation, exacerbation and/or acceleration of the aneurysm due to her employer’s negligence in providing emergency medical care alleged an injury suffered in the course of her employment. Combs v. VEPCO, 259 Va. 503 , 525 S.E.2d 278, 2000 Va. LEXIS 38 (2000).

Award to the employee of compensation benefits related to a fall at work was appropriate because it could have been found that her fall was caused in part by a combination of the “higher than a regular step” distance from the dumpster level to the loading dock, the configuration of the loading dock, and her distraction by the child for whom she was searching. Further, the employee was not on a frolic and detour when she was injured, she testified that she injured her left shoulder, and her medical history and treatment after the emergency room visit also supported the finding that she injured her left shoulder. Paul's Bakery, Inc. v. Murphy, 2010 Va. App. LEXIS 345 (Va. Ct. App. Aug. 24, 2010).

It was not error to find an employee’s injury arose out of the employee’s employment, and was compensable, because the unusual height of a platform from which the employee stepped was a risk peculiar to the employee’s employment and contributed to the employee’s injury, as the step’s unusual height caused the employee to step down off the platform in an awkward manner and injure the employee’s knee. GP Big Island, LLC v. Creasey, 2014 Va. App. LEXIS 382 (Va. Ct. App. Nov. 18, 2014).

Credible evidence supported the findings that an employee’s injuries were in the course of his employment because the accident occurred on the employer’s property at a place where the employee was authorized and required to be; because a clearing was for the mutual benefit of the employer and employee, required the use of company property, and occurred while the parties were acting in their employer-employee capacity, the employee’s actions were a responsibility of or incidental to employment. McCluster v. Baltazar, 2017 Va. App. LEXIS 308 (Va. Ct. App. Dec. 5, 2017).

Employee’s escorting coworker did not occur in course of employment. —

Where no evidence in the record reflected that employee’s presence on the street was part of the duties required by his job or that his employer derived any benefit from his accompaniment of coworker, and where the record revealed that employee was neither required to nor directed to escort coworker, and was not performing any service related to his work as an associate attorney at the time of his injury, the Commission did not err in finding that employee’s injury did not occur in the course of his employment. Hawks v. Hazel & Thomas, P.C., No. 0833-92-4 (Ct. of Appeals Dec. 1, 1992).

An accident occurs “in the course of the employment” when it takes place within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling duties of his employment or engaged in doing something incidental thereto. Bradshaw v. Aronovitch, 170 Va. 329 , 196 S.E. 684 , 1938 Va. LEXIS 191 (1938); Norfolk & Wash. Steamboat Co. v. Holladay, 174 Va. 152 , 5 S.E.2d 486, 1939 Va. LEXIS 149 (1939); Southern Motor Lines Co. v. Alvis, 200 Va. 168 , 104 S.E.2d 735, 1958 Va. LEXIS 172 (1958); Conner v. Bragg, 203 Va. 204 , 123 S.E.2d 393, 1962 Va. LEXIS 129 (1962); R & T Invs., Ltd. v. Johns, 228 Va. 249 , 321 S.E.2d 287, 1984 Va. LEXIS 196 (1984); Briley v. Farm Fresh, Inc., 240 Va. 194 , 396 S.E.2d 835, 1990 Va. LEXIS 119 (1990).

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 fulfilling the duties of his employment or is doing something which is reasonably incidental thereto. Lucas v. Lucas, 212 Va. 561 , 186 S.E.2d 63, 1972 Va. LEXIS 208 (1972); Baggett Transp. Co. v. Dillon, 219 Va. 633 , 248 S.E.2d 819, 1978 Va. LEXIS 224 (1978).

The “course of” requirement refers to continuity of time, space and circumstances, only incidentally related to causation. This requirement must be satisfied by a showing of 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. Board of Supvrs., 216 Va. 77 , 216 S.E.2d 52, 1975 Va. LEXIS 251 (1975).

The “course of employment” requirement refers to continuity of time, space, and circumstances, only incidentally related to causation. County of Chesterfield v. Goyne, 26 Bankr. 47, 1982 Bankr. LEXIS 5318 (Bankr. E.D. Va. 1982).

Accident in public parking lot not in course of employment. —

Worker’s Compensation Commission properly ruled that a worker was not entitled to medical benefits for a fall suffered in a parking lot, as the store which employed the worker did not exercise any control over the public parking lot, and thus the accident did not occur in the course of the worker’s employment. Newberry v. Peebles Dep't Store & Am. & Foreign Ins. Co., 2005 Va. App. LEXIS 398 (Va. Ct. App. Oct. 11, 2005).

When risk incidental to employment. —

A risk is incidental to the employment when it belongs to or is connected with what the employee has to do in fulfilling his contract of service. Reserve Life Ins. Co. v. Hosey, 208 Va. 568 , 159 S.E.2d 633, 1968 Va. LEXIS 149 (1968).

Where causative danger is peculiar to the work and incidental to character of the business the injury is compensable. Southern Motor Lines Co. v. Alvis, 200 Va. 168 , 104 S.E.2d 735, 1958 Va. LEXIS 172 (1958).

The causative risk must be peculiar to the work and incidental to the character of the business and not independent of the relation of master and servant. Fouts v. Anderson, 219 Va. 666 , 250 S.E.2d 746, 1979 Va. LEXIS 157 (1979).

The causative danger need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. Conner v. Bragg, 203 Va. 204 , 123 S.E.2d 393, 1962 Va. LEXIS 129 (1962).

But not where employee incurs danger not required by his position. —

When an employee incurs dangers of his own choosing which are altogether outside of any reasonable requirement of his position, the risk arising from such action is not incident to and does not arise out of the employment. Conner v. Bragg, 203 Va. 204 , 123 S.E.2d 393, 1962 Va. LEXIS 129 (1962).

Required duty or voluntary act of employee. —

As the Virginia Workers’ Compensation Commission’s order was silent on whether the claimant’s act of climbing a ladder to remove a smoke detector battery occurred in the course of claimant’s employment because it was one of claimant’s required job duties, or because it was a voluntary act that was reasonably incidental to the performance of her required job duties, it could not be said that the agreed order adjudicated ladder climbing as a required condition of the claimant’s pre-injury job; thus, the Commission did not err when it did not preclude the employer from arguing that claimant’s pre-injury job tasks excluded climbing ladders. Hayes v. Nobility Invs., LLC, 2019 Va. App. LEXIS 103 (Va. Ct. App. Apr. 30, 2019).

Since claimant’s voluntary act of turning her body slightly to the right to reach for an orange during a break involved no awkward position, extraordinary or unusual exertion, or other hazardous circumstances peculiar to her workplace, her claim could not sustain under the statute. Peck v. Tultex Corp., 1996 Va. App. LEXIS 102 (Va. Ct. App. Feb. 13, 1996).

Act essential to personal comfort and convenience of employee. —

An injury sustained by an employee while engaged in the performance of an act essential to his personal comfort and convenience, but ultimately for the benefit of the employer, is compensable as arising out of and in the course of employment. Southern Motor Lines Co. v. Alvis, 200 Va. 168 , 104 S.E.2d 735, 1958 Va. LEXIS 172 (1958).

Where employment creates necessity for travel. —

If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk. Butler v. Nolde Bros., 189 Va. 932 , 55 S.E.2d 36, 1949 Va. LEXIS 229 (1949).

When an employee is required to travel away from the employer’s premises to perform his work and the employer furnishes transportation to the employee, the course of one’s employment is usually expanded to include travel to and from the work site and the activities reasonably incidental thereto. Kraf Constr. Servs., Inc. v. Ingram, 17 Va. App. 295, 437 S.E.2d 424, 10 Va. Law Rep. 539, 1993 Va. App. LEXIS 548 (1993).

Course of employment travel injury shown. —

Where employee’s testimony and that of his supervisor established that, at the time of the accident, employee was traveling to Fredericksburg for the employer’s sales meeting where he was expected to turn in the premium money he had collected that week; this meeting and the duties attached to it were integral parts of his employment; and he was injured on a highway that was the most direct route between his home base and the employer’s office in Fredericksburg, the place where he was to perform his assigned duties, at the time of the accident, he was on his employer’s mission and thus, credible evidence proved that employee’s injury occurred in the course of his employment. Independent Life & Accident Ins. Co. v. Johnson, 1994 Va. App. LEXIS 520 (Va. Ct. App. Aug. 2, 1994).

Where a master is liable for some negligent act of a servant done about the master’s business he is also liable to the servant in damages for an injury then suffered by him, for such an injury would have arisen out of and in the course of his employment. Taylor v. Robertson Chevrolet Co., 177 Va. 289 , 13 S.E.2d 326, 1941 Va. LEXIS 216 (1941).

Multiple employers. —

Commission did not err in finding that, at the time he was injured, claimant was not employed by trucking company where he worked as a dispatcher, but by sole proprietorship which he operated and which leased truck to trucking company. Clinchfield Coal Co. v. Coleman, 1999 Va. App. LEXIS 662 (Va. Ct. App. Dec. 7, 1999).

Mere inability to recall the events surrounding an accident was not sufficient cause for application of the presumption that the accident “arose in the course of employment.” Pinkerton's, Inc. v. Helmes, 242 Va. 378 , 410 S.E.2d 646, 8 Va. Law Rep. 1314, 1991 Va. LEXIS 150 (1991).

D.Time and Place of Accident.

Injury must occur at place where employee is reasonably expected to be. —

In order for an injury to be compensable, it must have occurred at a place where from the nature of his work the employee was reasonably expected to be. Norfolk & Wash. Steamboat Co. v. Holladay, 174 Va. 152 , 5 S.E.2d 486, 1939 Va. LEXIS 149 (1939).

Where the plaintiff was injured at a place where she was reasonably expected to be while engaged in an activity reasonably incidental to her employment by defendant, her injury was covered under this section. Briley v. Farm Fresh, Inc., 240 Va. 194 , 396 S.E.2d 835, 1990 Va. LEXIS 119 (1990).

At or reasonably near premises where he is to work. —

A workman who receives an injury while at a place on, or reasonably near, the premises where he is to work, or at a place to which his employment requires him to go while doing something incident to or connected with his employment, or which is reasonably necessary for, and preparatory to, the beginning of his work, or while doing something reasonably connected with his employment, or incident thereto, after his actual labors in his employment are completed for the day, or for any particular period, may be allowed compensation for such injury. Cohen v. Cohen's Dept. Store, 171 Va. 106 , 198 S.E. 476 , 1938 Va. LEXIS 261 (1938).

There is no such thing as “instantaneous exit” immediately after an employee punches a time clock. Manifestly an employee has a reasonable time after quitting work in which to absent himself from the premises of his employer. Brown v. Reed, 209 Va. 562 , 165 S.E.2d 394, 1969 Va. LEXIS 143 (1969).

There occurs no “instantaneous exit” from a place of employment immediately upon termination of work. Briley v. Farm Fresh, Inc., 240 Va. 194 , 396 S.E.2d 835, 1990 Va. LEXIS 119 (1990).

An employee has a reasonable time after concluding work to absent herself from the employer’s premises. Briley v. Farm Fresh, Inc., 240 Va. 194 , 396 S.E.2d 835, 1990 Va. LEXIS 119 (1990).

Identifiable incident on sudden precipitating event. —

Workers’ compensation claimant did not meet his burden of proving that the cause of his injury was an identifiable incident or sudden precipitating event and that it resulted in an obvious sudden mechanical or structural change in the body because he stated various dates to various people about when and how his injury occurred. Hash v. Motivation Coal Co., 2003 Va. App. LEXIS 86 (Va. Ct. App. Feb. 25, 2003).

Employment includes reasonable margin of time and space. —

Employment includes not only the actual doing of the work, but a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done. If the employee be injured while passing, with the express or implied consent of the employer, to and from his work by a way over the employer’s premises, or over those of another in such proximity and relation as to be in practical effect a part of the employer’s premises, the injury is one arising out of and in the course of the employment as much as though it had happened while the employee was engaged in his work at the place of its performance. In other words, the employment may begin in point of time before the work is entered upon and in point of space before the place where the work is to be done is reached. Brown v. Reed, 209 Va. 562 , 165 S.E.2d 394, 1969 Va. LEXIS 143 (1969).

The fact that the accident occurred shortly after the claimant had left her immediate place of work is not conclusive. A reasonable length of time must be given an employee to separate himself or herself from the place of work. The employment contemplated her entry upon and departure from the place of work as much as it contemplated her working there, and must include a reasonable interval of time for that purpose. Brown v. Reed, 209 Va. 562 , 165 S.E.2d 394, 1969 Va. LEXIS 143 (1969).

Temporal precision established. —

Evidence supported the commission’s factual finding that claimant’s injury occurred during the post-lunch hours of training, and thus the injury was sufficiently bounded with rigid temporal precision to establish a compensable injury; after lunch, during the final training scenario of the day, claimant experienced a “tweak” when picked up by members of the SWAT team, and he had no doubt that it was the incident that led to the arm and shoulder problems he began experiencing after the training. City of Charlottesville v. Sclafani, 2020 Va. App. LEXIS 135 (Va. Ct. App. May 5, 2020), aff'd in part, rev'd, 300 Va. 212 , 862 S.E.2d 101, 2021 Va. LEXIS 93 (2021).

Accident occurring out of working hours. —

The fact that the accident occurred outside of regular working hours is wholly immaterial, as this section by its terms embraces all injuries by accident arising out of and in the course of the employment, whether within or without particular hours. Honaker & Feeney v. Hartley, 140 Va. 1 , 124 S.E. 220 , 1924 Va. LEXIS 152 (1924).

Whether the injury occurred outside of regular working hours is immaterial so long as it arose “out of and in the course of the employment.” The statute does not confine injuries which it embraces to those which arise out of and in the course of employment during regular working hours. Ferrell v. Beddow, 203 Va. 472 , 125 S.E.2d 196, 1962 Va. LEXIS 170 (1962).

Compensation is not confined to injuries occurring only during working hours. Lucas v. Lucas, 212 Va. 561 , 186 S.E.2d 63, 1972 Va. LEXIS 208 (1972).

The fact that the employee’s employment for the day had ended, in itself, was no bar to compensation for his death so long as an employment relationship existed during the trip that exposed decedent to his fatal injury. Lucas v. Lucas, 212 Va. 561 , 186 S.E.2d 63, 1972 Va. LEXIS 208 (1972).

Date of injury. —

Workers’ compensation claimant failed to sustain the claimant’s burden of proving the claimant suffered a compensable injury by accident on February 24, 2007, under § 65.2-101 as the Virginia Workers’ Compensation Commission offered a rationale for its reversal of a deputy commissioner’s finding that a workers’ compensation claimant was credible as the claimant was unable to explain the medical records indicating that the claimant suffered an injury before January 15, 2007; the claimant testified that the claimant did not have back injuries before February 24, 2007. Karban v. Universal Fiber Sys., LLC, 2010 Va. App. LEXIS 274 (Va. Ct. App. July 13, 2010).

Reasonably definite time shown. —

Claimant’s injury occurred at a reasonably definite time, at 4:00 p.m. on August 30, 2016, and thus he satisfied the second component of an injury by accident; he testified that he was in employer’s service bays that day at 4:00 p.m., and the only place he could have encountered used fasteners on the floor was in those bays. The Commission found his testimony credible and requiring him to provide the precise time the used fastener punctured his foot would fault him for having neuropathy and yield a ridiculous and unjust result. Farrish of Fairfax v. Faszcza, 2020 Va. App. LEXIS 173 (Va. Ct. App. June 16, 2020).

Claimant’s injury occurred in the course of his employment; he stepped on the used fastener during work hours at 4:00 p.m. on August 30, 2016, as he followed up on vehicles receiving maintenance in the service bays of employer’s premises, and it was claimant’s job to oversee the technicians and their work, and the technicians worked in the service bays. Farrish of Fairfax v. Faszcza, 2020 Va. App. LEXIS 173 (Va. Ct. App. June 16, 2020).

Claimant could not identify the visit in which he stepped on a used fastener due to his neuropathy, but this inability to identify the moment the injury occurred did not preclude a finding that an identifiable incident occurred. Farrish of Fairfax v. Faszcza, 2020 Va. App. LEXIS 173 (Va. Ct. App. June 16, 2020).

Public road between two portions of employer’s premises. —

One category in which compensation is almost always awarded is that in which the employee travels along or across a public road between two portions of his employer’s premises, whether going or coming, or pursuing his active duties. Brown v. Reed, 209 Va. 562 , 165 S.E.2d 394, 1969 Va. LEXIS 143 (1969).

Parking lot owned or maintained by employer. —

Virginia is among a majority of states that now consider parking lots owned by the employer or maintained by the employer for its employees part of the “premises,” whether within or separated from company premises. Hunton & Williams v. Gilmer, 20 Va. App. 603, 460 S.E.2d 235, 12 Va. Law Rep. 47, 1995 Va. App. LEXIS 629 (1995).

The parking lot rule is one of the exceptions to the rule that bars compensation for injuries not on the employer’s premises. This exception, unlike others, is based on the range of risk of the employment, not the rule of respondeat superior. This is because the employer does not necessarily control the employee during the critical period, nor is the employee being paid wages during this time. Hunton & Williams v. Gilmer, 20 Va. App. 603, 460 S.E.2d 235, 12 Va. Law Rep. 47, 1995 Va. App. LEXIS 629 (1995).

No evidence disclosed control by employer over parking area. —

Where no evidence showed that employees were required to park in parking garage or that employee sustained her injury in an area of the parking lot reserved for her company only, no evidence disclosed any control or authority by employer over the area in which employee parked. Hunton & Williams v. Gilmer, 20 Va. App. 603, 460 S.E.2d 235, 12 Va. Law Rep. 47, 1995 Va. App. LEXIS 629 (1995).

Going to and from parking lot in order to reach and leave her immediate working area was a necessary incident to the claimant’s employment. Brown v. Reed, 209 Va. 562 , 165 S.E.2d 394, 1969 Va. LEXIS 143 (1969).

The claimant parked her automobile on the premises of her employer in a parking area designated and maintained for employees in her classification to use. It is reasonably inferable from the record that the parking area was maintained by the employer for the mutual benefit of the employer and the employees. Brown v. Reed, 209 Va. 562 , 165 S.E.2d 394, 1969 Va. LEXIS 143 (1969).

Where large numbers of employees drive automobiles to their places of employment and provision is made for parking on the employer’s premises, it is clear that the employment itself has created conditions in which the risk of automobile-connected injuries is different in kind and possibly greater in degree than that confronted by the public at large. The risk may be increased by a large number of automobiles, concentrated in a confined space, coming into and going out of the lot at approximately the same times, operated by employees who may be preoccupied with thoughts of work to be begun, or exhausted from work completed and anxious to get to their respective homes or other places of relaxation and refreshment. This would seem to be the kind of hazard from which the Workmen’s (now Workers’) Compensation Act was designed to protect employees. Brown v. Reed, 209 Va. 562 , 165 S.E.2d 394, 1969 Va. LEXIS 143 (1969).

Returning from smoking during on-premises lunch break. —

Injuries sustained by an employee on the employer’s premises when returning to work from a designated meal break arise out of and in the course of the employee’s employment and the same rule applies when the employee is returning from an area where he had gone to smoke cigarettes during a part of his lunch break. Cadmus Magazines v. Williams, 30 Va. App. 129, 515 S.E.2d 797, 1999 Va. App. LEXIS 399 (1999).

Return to workplace to give colleague a ride. —

A hospital employee’s injury did not occur in the course of her employment where the employee had successfully exited the hospital at the conclusion of her workday and successfully traversed the employer’s parking lot to her vehicle but, instead of exiting the premises, returned to the emergency room entrance to give a ride to a colleague where she fell and sustained an injury; the employee’s return to the emergency room was a personal errand and a personal favor and there was no evidence that the employer encouraged ride-sharing or carpooling or anticipated personal favors by its employees or that the employer benefited from such activities. Norfolk Community Hosp. v. Smith, 33 Va. App. 1, 531 S.E.2d 576, 2000 Va. App. LEXIS 535 (2000).

Fact of injury in parking lot alone not conclusive. —

The mere fact that an injury occurs on a parking lot provided by an employer for his employees does not necessarily make it arise out of and in the course of employment. Fouts v. Anderson, 219 Va. 666 , 250 S.E.2d 746, 1979 Va. LEXIS 157 (1979).

Where an employee had completed his workday when he left his employer’s parking lot, and his reentry into the parking lot was not related to or in any way connected with his employment, the employee incurred the risk of injury while he was solely on a mission for his own convenience. Thus, the employee’s injury was not one “arising out of” and did not occur “in the course of” his employment, and was not compensable under the Act. Fouts v. Anderson, 219 Va. 666 , 250 S.E.2d 746, 1979 Va. LEXIS 157 (1979).

Employee of store called out to sidewalk. —

If an employee of a store is called out of the store to the sidewalk upon some direct or indirect business mission connected therewith, or if he is upon the sidewalk for some incidental purpose indirectly connected with his employment and is injured, in either case the injury is compensable. Cohen v. Cohen's Dept. Store, 171 Va. 106 , 198 S.E. 476 , 1938 Va. LEXIS 261 (1938).

Employee gathering area. —

Although claimant was injured during a break, the accident occurred on employer’s premises in an area where employees were permitted to gather during break periods. As such, employer was responsible for the condition and use of the area and the resulting dangerous circumstances inherent in crowding on steps in front of a principal entrance to the workplace. Thus, the causative danger was both incidental to the character of the workplace and dependent on the master-servant relationship. Maida Dev. Co. v. Hayslett, 1995 Va. App. LEXIS 603 (Va. Ct. App. July 25, 1995).

The fact that employer provided a designated location for employees to gather during their breaks did not relieve it of the responsibility to provide safe conditions in other areas of the workplace where employees were known and permitted to congregate. Maida Dev. Co. v. Hayslett, 1995 Va. App. LEXIS 603 (Va. Ct. App. July 25, 1995).

E.Public Streets.

Injuries in public streets generally. —

In order to entitle the claimant to compensation for injuries in the public streets, there must be some special risk incident to the particular employment which imposes some greater danger upon the employee than is imposed upon other persons actually using the streets. The test, however, is not that other persons are exposed to similar risks, but rather that the employment exposes the workman to the particular danger in the street. Dreyfus & Co. v. Meade, 142 Va. 567 , 129 S.E. 336 , 1925 Va. LEXIS 360 (1925); Brosnahan v. Immer & Co., 207 Va. 720 , 152 S.E.2d 254, 1967 Va. LEXIS 128 (1967).

There are many classes of employees whose duties to their employers require their presence upon the public streets, either frequently or continuously, and accidental injuries to them on the streets have been frequently held to be compensable. Among these are salesmen, truck drivers, messengers, solicitors, etc., who by the very nature of their employment are exposed to the hazards of the streets to a greater degree than the general public. Dreyfus & Co. v. Meade, 142 Va. 567 , 129 S.E. 336 , 1925 Va. LEXIS 360 (1925).

An employee whose duties require him to be on the street is covered from hazards incident to street travel, on the principle that such risks are incident to the nature of the employment and employees engaged in that kind of work are necessarily exposed thereto. Norfolk & Wash. Steamboat Co. v. Holladay, 174 Va. 152 , 5 S.E.2d 486, 1939 Va. LEXIS 149 (1939).

If his employment status placed the employee on the highway and an accident occurred, such accidental injury arose out of and in the course of his employment. Lucas v. Lucas, 212 Va. 561 , 186 S.E.2d 63, 1972 Va. LEXIS 208 (1972).

Two-prong test for establishing compensable public street injury. —

To establish being part of the class of employees protected from accidental injuries upon the public streets, claimant must establish by a preponderance of the evidence: (1) that his or her duties to the employer require his or her presence upon the public streets; and (2) that his or her injury arose from an actual risk of that presence upon the streets. Sentara Leigh Hosp. v. Nichols, 13 Va. App. 630, 414 S.E.2d 426, 8 Va. Law Rep. 2030, 1992 Va. App. LEXIS 53 (1992).

Alternative recovery route for establishing compensable public street injury. —

If an employee does not prove that he or she is within a class of employees whose duties require their presence or travel upon the public streets to be entitled to compensation for injuries from an automobile accident, then he or she must prove that the duties of the particular employment in question required the employee’s travel or presence upon the public streets and, thus, exposed the employee to the actual risk of that presence or travel. Sentara Leigh Hosp. v. Nichols, 13 Va. App. 630, 414 S.E.2d 426, 8 Va. Law Rep. 2030, 1992 Va. App. LEXIS 53 (1992).

“Actual risk test” in “street cases”. —

See Brosnahan v. Immer & Co., 207 Va. 720 , 152 S.E.2d 254, 1967 Va. LEXIS 128 (1967).

Under the actual street-risk rule if the employment occasions the employee’s use of the street, the risks of the street are the risks of the employment. Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 437 S.E.2d 727, 10 Va. Law Rep. 613, 1993 Va. App. LEXIS 580 (1993), limited, Bernard v. Carlson Cos. - TGIF, 60 Va. App. 400, 728 S.E.2d 508, 2012 Va. App. LEXIS 236 (2012).

Exposure to greater risk from presence on street need not be shown. —

Under the “actual risk” test, it is not necessary that the employee show that his presence on the street or highway where his injuries are suffered exposes him to an increased hazard peculiar to the work and not common to the public generally. The test is not that other persons are exposed to similar risks, but rather that the employment exposes the worker to the particular danger in the street. Park Oil Co. v. Parham, 1 Va. App. 166, 336 S.E.2d 531, 1985 Va. App. LEXIS 79 (1985).

Fact of accident on public highway alone not conclusive. —

The fact that the accident happens along a public highway, and that the danger is one to which the general public is likewise exposed, is not conclusive against the existence of causal relationship between the conditions under which the work is required to be performed and the resulting injury, unless the danger be one to which the employee, by reason of and in connection with his employment, is not subjected peculiarly or to an abnormal degree. Baggett Transp. Co. v. Dillon, 219 Va. 633 , 248 S.E.2d 819, 1978 Va. LEXIS 224 (1978).

Where employee truck driver died from a gunshot wound inflicted either intentionally or negligently, and there was no indication that the gun was aimed at him because of his work as a truck driver, but the evidence clearly negated any suggestion that the truck was the target of a hijacking attempt or that the assailant tried to tamper in any other way with the vehicle or its cargo, and pointed to the conclusion that the employee’s death was the result of an arbitrary and capricious act by an unknown assailant, the risk was not peculiar to the work. It could not be said that the employee’s occupation as a truck driver subjected him, to an abnormal degree, to being shot accidentally or intentionally alongside a public highway. Baggett Transp. Co. v. Dillon, 219 Va. 633 , 248 S.E.2d 819, 1978 Va. LEXIS 224 (1978).

Deviations or personal missions in public streets. —

An injury is compensable where an employee whose duties require him to operate a truck upon the streets of a city and who is permitted to select what streets he will use, with the consent of his employer, deviates from a direct route to perform a personal mission, completes the mission, starts to the point of delivery designated by his employer, and is injured before reaching his destination or a street in the direct course thereto. In the instant case the employee had accomplished the personal enterprise and was on the street for the sole benefit of his employer. Railway Express Agency v. Lewis, 156 Va. 800 , 159 S.E. 188 , 1931 Va. LEXIS 232 (1931).

Compensation was denied for injuries suffered by claimant in an automobile accident, where the manager of defendant company had instructed truck drivers, including claimant, to travel by a certain route from which claimant had deviated at the time of the accident. Grimes v. Janney-Marshall Co., 183 Va. 317 , 32 S.E.2d 76, 1944 Va. LEXIS 156 (1944).

The passenger representative and tour conductor for a steamboat company, whose duties were to look after the wants and comforts of the passengers and who started on foot to the nearest liquor store to procure whiskey for passengers at their request, was denied compensation for an injury received when run over by a train while he was walking across a trestle, where the shortest route to the liquor store was along a road and not across the trestle. Norfolk & Wash. Steamboat Co. v. Holladay, 174 Va. 152 , 5 S.E.2d 486, 1939 Va. LEXIS 149 (1939).

Where a widow equivocally testified that a decedent was riding his motorcycle on a work errand after Sunday dinner but there was no evidence to corroborate the assertion that the decedent was delivering paper work to his bookkeeper, the widow failed to prove that the decedent’s death, which occurred as a result of an accident on a public highway, arose out of or in course of his employment under § 65.2-101 . Clifton v. Clifton Cable Contr., LLC, 54 Va. App. 532, 680 S.E.2d 348, 2009 Va. App. LEXIS 361 (2009).

Home care nurse in route to patient’s home. —

It may well be that many home care nurses, because of the duties of their employment, are required to travel upon the public streets and, thus, come within the protection of the “street case” principles. Nothing, however, establishes that all home care nurses come within such a class of employees. Consequently, individual claimant has the burden of proving by a preponderance of the evidence that the duties of his or her employment required travel upon the public streets. Sentara Leigh Hosp. v. Nichols, 13 Va. App. 630, 414 S.E.2d 426, 8 Va. Law Rep. 2030, 1992 Va. App. LEXIS 53 (1992).

F.Going to or Returning From Place of Employment.

Generally, injuries received going to or from work are not compensable. —

The general rule is that an employee going to or from his place of work is not engaged in performing any service growing out of and incidental to his employment. Kent v. Va.-Carolina Chemical Co., 143 Va. 62 , 129 S.E. 330 , 1925 Va. LEXIS 246 (1925) (see Monumental Motor Tours v. Eaton, 184 Va. 311 , 35 S.E.2d 105 (1945); LeWhite Constr. Co. v. Dunn, 211 Va. 279 , 176 S.E.2d 809 (1970); GATX Tank Erection Co. v. Gnewuch, 221 Va. 600 , 272 S.E.2d 200 (1980)).

Subject to limited exceptions, injuries sustained by employees having fixed hours and places of employment off the employer’s premises while going to or from work, are not within the “course of employment” and are therefore not compensable under the Workers’ Compensation Act. Grand Union Co. v. Bynum, 226 Va. 140 , 307 S.E.2d 456, 1983 Va. LEXIS 279 (1983).

An employee going to or from the place where his work is to be performed is not engaged in performing any service growing out of and incidental to his employment. Therefore, any injury received while going to or from work generally is not compensable. Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 355 S.E.2d 347, 3 Va. Law Rep. 2220, 1987 Va. App. LEXIS 179 (1987).

When a worker was allowed to use his employer’s van while the worker’s vehicle was being repaired and was injured while using the van to drive to work, he was not entitled to workers’ compensation because: (1) the employer’s agreement that the worker could use the van was gratuitous and not contractual; (2) the worker’s usage of the van was to be for a limited period while the worker’s car was being repaired and was not a custom incidental to the employment contract; and (3) the worker’s use of the van was a favor to the worker which was of no benefit to the employer. Marshall v. Craft Forklift, Inc., 41 Va. App. 777, 589 S.E.2d 456, 2003 Va. App. LEXIS 636 (2003).

But there are certain exceptions to this rule. A.N. Campbell & Co. v. Messenger, 171 Va. 374 , 199 S.E. 511 , 1938 Va. LEXIS 287 (1938).

As to special rule, limited in application to a typical situation such as employees having no fixed hours and places of employment. Grand Union Co. v. Bynum, 226 Va. 140 , 307 S.E.2d 456, 1983 Va. LEXIS 279 (1983).

Exceptions enumerated. —

The cases indicate that there are three exceptions to this general rule, and only three: (1) Where in going to and from work the means of transportation is provided by the employer or the time consumed is paid for or included in the wages; (2) Where the way used is the sole and exclusive way of ingress and egress, with no other way, or where the way of ingress and egress is constructed by the employer; (3) Where the employee on his way to or from work is still charged with some duty or task in connection with his employment. Kent v. Va.-Carolina Chemical Co., 143 Va. 62 , 129 S.E. 330 , 1925 Va. LEXIS 246 (1925); GATX Tank Erection Co. v. Gnewuch, 221 Va. 600 , 272 S.E.2d 200, 1980 Va. LEXIS 280 (1980).

The second exception enumerated does not apply where an employee was killed on his way home from his place of employment fifteen minutes after leaving the place, when pursuing a route of his own choice, there being other available ones. And this is true notwithstanding the fact that the way used was the most practical one and was used constantly over a period of years with the knowledge of the employer. Kent v. Va.-Carolina Chemical Co., 143 Va. 62 , 129 S.E. 330 , 1925 Va. LEXIS 246 (1925).

One of the recognized exceptions to the rule is where the employee is still charged with some task or duty relating to his employment while going to or from his place of work. Ferrell v. Beddow, 203 Va. 472 , 125 S.E.2d 196, 1962 Va. LEXIS 170 (1962).

Most of the decisions applying the first exception enumerated have been based upon agreements, express or implied, that the employer will furnish the worker free transportation to and from his work. LeWhite Constr. Co. v. Dunn, 211 Va. 279 , 176 S.E.2d 809, 1970 Va. LEXIS 247 (1970).

There is an exception to the general rule where the employee on his way to or from work is still charged with some duty or task in connection with his employment. LeWhite Constr. Co. v. Dunn, 211 Va. 279 , 176 S.E.2d 809, 1970 Va. LEXIS 247 (1970).

If an employee sustains an injury while passing, with the express or implied consent of the employer, to or from his work over the employer’s premises, or over those of another in such proximity and relation as to be in practical effect a part of the employer’s premises, the injury is as causally related to the employment as if it had been sustained while the employee was engaged in work at the place of its performance. Stone v. Keister's Mkt. & Grill, 34 Va. App. 174, 538 S.E.2d 364, 2000 Va. App. LEXIS 833 (2000).

Where the payment of six dollars per day is not reimbursement of travel expense, but is additional compensation to attract skilled workers to remote jobsite, the first exception defined in Kent v. Virginia-Carolina Chem. Co., 143 Va. 62 , 129 S.E. 330 (1925), to the general rule that an employee going to and from work is not engaged in any service growing out of an incident to his employment does not apply. GATX Tank Erection Co. v. Gnewuch, 221 Va. 600 , 272 S.E.2d 200, 1980 Va. LEXIS 280 (1980).

“Sole and exclusive” route. —

A road, or segment of one, is the “sole and exclusive” route whenever it is the only way for all employees to get to and from the place of employment. GATX Tank Erection Co. v. Gnewuch, 221 Va. 600 , 272 S.E.2d 200, 1980 Va. LEXIS 280 (1980).

Where an employee is injured as a result of a special hazard, e.g., a railroad crossing existing near the employer’s premises, on the sole and exclusive route, the injury is comprehensible. A special hazard refers to some extraordinary danger at a particular location, but it does not mean that the risk to the employee is different from that to which the general public would be exposed at the same location. GATX Tank Erection Co. v. Gnewuch, 221 Va. 600 , 272 S.E.2d 200, 1980 Va. LEXIS 280 (1980).

Injury occurring on area in which employer had no right of passage. —

Employee’s injury was not compensable under § 65.2-101 where there was no evidence that the employee’s fall, which occurred as she was leaving her employer’s building, occurred on a walkway, a sidewalk, or other area where the employer had right of passage, and instead, the evidence showed that the fall occurred on a grassy area that was not a walkway or other area of ingress and egress where her employer had a right of passage. Gaston v. Black, 2009 Va. App. LEXIS 358 (Va. Ct. App. Aug. 11, 2009).

Where means of transportation is provided by employer. —

Where it was the duty of an employee to take a car furnished him by his employer to a garage on his own premises for the night, and while returning to his home one evening with the car, the employee was killed in a collision with another car, defendant claimed that the employee intended to use the car to take his wife to the theatre that night. But even if the employee intended to use the car for this purpose, the appropriation of the car for his own private ends would not have begun until the employee actually started for the theatre; so long as he was proceeding to his home with the car he was performing a service for his employer in the regular course of his employment. Fleischman Co. v. Marshall, 149 Va. 254 , 141 S.E. 139 , 1928 Va. LEXIS 364 (1928).

An employee while on his way to work is not in the course of his employment. But where the worker is employed to work at a certain place, and as a part of his contract of employment there is an agreement that his employer shall furnish him free transportation to or from his work, the period of service continues during the time of transportation, and if an injury occurs during the course of transportation it is held to have arisen out of and in the course of the employment. Scott v. Willis, 150 Va. 260 , 142 S.E. 400 , 1928 Va. LEXIS 311 (1928).

When the employee is furnished transportation to or from his work by the employer and is accidentally injured during the course of travel, the injury arises out of and in the course of his employment and is compensable under the Act. Lucas v. Biller, 204 Va. 309 , 130 S.E.2d 582, 1963 Va. LEXIS 149 (1963).

A worker going to or from work is covered by the Workmen’s (now Workers’) Compensation Act where the transportation is furnished by custom to the extent that it is incidental to and part of the contract of employment; or when it is the result of a continued practice in the course of the employer’s business which is beneficial to both the employer and the employee. LeWhite Constr. Co. v. Dunn, 211 Va. 279 , 176 S.E.2d 809, 1970 Va. LEXIS 247 (1970).

An award of compensation for injuries to an employee incurred while being transported from his home to work by his employer was upheld as an exception to the “going to or from” rule, the means of transportation being provided by the employer, where the employer and his son customarily operated company-owned trucks in the business and in traveling to and from work, claimant, who was a close friend of the son, and almost daily they would pick up claimant and transport him to and from work. Boyd's Roofing Co. v. Lewis, 1 Va. App. 93, 335 S.E.2d 281, 1985 Va. App. LEXIS 68 (1985).

Car salesman driving demonstrator vehicle to work. —

An exception to the “going and coming” rule applied where the claimant, a car salesman who was involved in an accident while driving a demonstrator vehicle to work, was charged with at least three tasks by his employer in his travel to work: (1) He was required to get the car to the employer’s premises each work day because his use agreement with the employer expressly required him to have the demo available to show to customers during business hours; (2) he was required to display the dealer emblem and sales stickers on the car; and (3) he was required to show the car to any potential buyers, even off the employer’s premises; under these circumstances, the employee was engaged in the performance of duties which benefited his employer as he drove the demo to work on the day of the accident. Templeton Oldsmobile Dodge v. Dyer, 2000 Va. App. LEXIS 290 (Va. Ct. App. Apr. 18, 2000).

Transportation furnished by employer must be beneficial to employer. —

An employee furnished transportation by his employer, absent express or implied agreement or custom incidental to the employment contract, is not covered by the Workmen’s (now Workers’) Compensation Act unless such transportation is beneficial to the employer. LeWhite Constr. Co. v. Dunn, 211 Va. 279 , 176 S.E.2d 809, 1970 Va. LEXIS 247 (1970).

Where free transportation was merely a favor to the employee which provided no benefit to his employer, injuries received by the employee en route were not compensable under the Workmen’s (now Workers’) Compensation Act. LeWhite Constr. Co. v. Dunn, 211 Va. 279 , 176 S.E.2d 809, 1970 Va. LEXIS 247 (1970).

Employer must have duty to transport. —

An employee making use of transportation customarily and gratuitously furnished by the employer, in the absence of an express provision for same, is not acting in the course of his employment unless a duty to transport can be implied from the attendant circumstances in the contract of hiring. This duty may be implied where it is shown that the transportation was provided as incident to procuring the services of an employee whose home is a great distance from the place of work. It may also be implied where the transportation provided by the employer is shown to have been a necessary incident to the employment because it was the only practical means by which the employee could travel to and from the place of work. At any rate, it must be shown that the transportation so furnished was a necessary incident of the employment rather than a mere favor not in furtherance of the employer’s business. Bristow v. Cross, 210 Va. 718 , 173 S.E.2d 815, 1970 Va. LEXIS 191 (1970).

Resumption of transportation from work after stop to socialize. —

Where an employer was fulfilling his agreement to provide an employee with transportation to and from work at the time of the motor vehicle accident in which the employee was injured, the employee’s injuries arose out of and in the course of his employment and he was entitled to benefits; the fact that, in the course of this trip, the employer had chosen to stop at a friend’s house to socialize and that the employer and employee had consumed alcoholic beverages prior to returning to the employer’s vehicle and resuming their return trip from work did not alter this conclusion. Vaughan's Landscaping & Maint. v. Dodson, 262 Va. 270 , 546 S.E.2d 437, 2001 Va. LEXIS 64 (2001).

Public parking area. —

An employee who was struck by a car while crossing the street from her place of work to the parking lot where her car was parked was not entitled to benefits where the parking lot was neither owned nor maintained by her employer, employees were not required to park there but could park any place they chose, the employer did not pay for employees’ parking or designate parking spaces for employees and the lot was not used exclusively by employees. Stone v. Keister's Mkt. & Grill, 34 Va. App. 174, 538 S.E.2d 364, 2000 Va. App. LEXIS 833 (2000).

Mall parking lot. —

Commission properly found that claimant’s slip and fall accident in a mall parking lot did not arise out of or in the course of his employment; there were other entrances he could have used and the lot was shared by employer and others and not owned by employer, and thus the area where claimant parked was not part of employer’s extended premises. Langford v. Dish Network & Indem. Ins. Co. of N. Am., 2020 Va. App. LEXIS 154 (Va. Ct. App. May 19, 2020).

An employee required to go to outside places to work and to return to the employer’s office to report is at all such times acting in the course of his employment, and is entitled to compensation if injured by accident at such time. Taylor v. Robertson Chevrolet Co., 177 Va. 289 , 13 S.E.2d 326, 1941 Va. LEXIS 216 (1941); Kraf Constr. Servs., Inc. v. Ingram, 17 Va. App. 295, 437 S.E.2d 424, 10 Va. Law Rep. 539, 1993 Va. App. LEXIS 548 (1993).

Employee required to attend off-premises meeting. —

Employee who was killed while crossing a street on his way to meet with supervisor for purpose of traveling together to attend an off-premises meeting, was within the scope of his employment where employer required attendance at the meeting. Harbin v. Jamestown Village Joint Venture, 16 Va. App. 190, 428 S.E.2d 754, 9 Va. Law Rep. 1129, 1993 Va. App. LEXIS 79 (1993).

Special errand rule inapplicable. —

A police officer was not on a special errand while traveling to work so as to be entitled to compensation for injuries sustained in a motor vehicle accident where the officer was not under any supervisor’s order to report to work early and had not sought permission to do so from his supervisor but had unilaterally elected to comply with a magistrate’s request to appear at the magistrate’s office an hour before the officer’s scheduled shift began. Slemmons v. Prince William County Police Dep't, 2001 Va. App. LEXIS 238 (Va. Ct. App. May 8, 2001).

“Going and coming” rule inapplicable. —

The instant case did not fall within the parameters of the “going and coming” rule. Employee was traveling a direct route from his home base of business to another business site. He was not merely leaving his home to travel to a regular workplace. By traveling to Fredericksburg on Fridays to deliver the premium money to employer and to attend the sales meeting, he was engaged in performing a service incidental to his employment. Independent Life & Accident Ins. Co. v. Johnson, 1994 Va. App. LEXIS 520 (Va. Ct. App. Aug. 2, 1994).

Going to and from lunch. —

Thus injuries received by the employees off the premises of the employer in going to and from lunch do not arise out of or in the course of their employment. The risk of going to lunch is not a risk incident to the employment, but is rather an incident of life generally. Taylor v. Binswanger & Co., 130 Va. 545 , 107 S.E. 649 , 1921 Va. LEXIS 173 (1921); Dreyfus & Co. v. Meade, 142 Va. 567 , 129 S.E. 336 , 1925 Va. LEXIS 360 (1925) (see also Life Ins. Co. v. Wood, 7 Va. L. Reg. (n.s.) 827 (1922)).

So an accident which occurred to a claimant on the street, either while going for a lunch at an appointed lunch hour or while going out on the street away from the place of employment for a cup of coffee when there was no appointed hour therefor, was not incidental to the claimant’s employment as night watchman in a store. Dreyfus & Co. v. Meade, 142 Va. 567 , 129 S.E. 336 , 1925 Va. LEXIS 360 (1925).

Travel allowance. —

An employee’s injuries incurred in an automobile accident while driving home from work were not covered by an insurance policy which exempted benefits for injuries incurred from or in the course of employment, where the employee was given a travel allowance which was payable from his home when he left in the morning until when he got back at night. Provident Life & Accident Ins. Co. v. Barnard, 236 Va. 41 , 372 S.E.2d 369, 5 Va. Law Rep. 479, 1988 Va. LEXIS 111 (1988).

G.Falls.

Proof that the employee fell on the employer’s premises adds nothing and answers nothing, when the inquiry is, did the injury arise out of the employment. It simply helps prove the “in the course of” prongs of the compensability test. Maida Dev. Co. v. Hayslett, 1995 Va. App. LEXIS 603 (Va. Ct. App. July 25, 1995).

Fall on steps did not arise out of employment. —

Although the commission concluded that a condition of the employment caused a claimant’s injury, nothing in the record supported that conclusion. The commission’s analysis that because the claimant’s heel got caught in the riser of a step, the injury was caused by a condition of her employment was rejected and, because the commission found no defect in the steps and because nothing in the record supported the commission’s holding that the injury occurred as the result of a condition of the employment, the injury did not arise out of the employment and the claimant was not entitled to workers’ compensation benefits. County of Buchanan Sch. Bd. v. Horton, 35 Va. App. 26, 542 S.E.2d 783, 2001 Va. App. LEXIS 96 (2001).

In order for a fall on stairs to be compensable, there must either be a defect in the stairs or the claimant must have fallen as a result of a condition of the employment. County of Buchanan Sch. Bd. v. Horton, 35 Va. App. 26, 542 S.E.2d 783, 2001 Va. App. LEXIS 96 (2001).

The fall must be a risk arising out of the employment. —

Claimant’s injury from a fall while discussing work-related matters with a supervisor occurred in the course of employment, but the record failed to support the Virginia Workers’ Compensation Commission’s finding that the injury resulted from an actual risk arising out of the claimant’s employment. TBC Corp. v. Stephens, 49 Va. App. 650, 644 S.E.2d 84, 2007 Va. App. LEXIS 181 (2007).

Because a worker who fell from a roof while inspecting the roof was put at risk of falling by his job duty, which required him to look for the source of a leak, his injury was by accident arising out of and in the course of the employment. It could reasonably be inferred that his job duty was the reason why he was not looking at his feet when he slipped. G. C. Constr., L.L.C. v. Cruz, 2012 Va. App. LEXIS 62 (Va. Ct. App. Mar. 6, 2012).

Claimant, who tripped and fell while walking through the threshold of a copy room, was not entitled to benefits because the claimant failed to prove that the claimant’s accident arose out of the claimant’s employment in that the claimant’s tripping accident occurred in the course of, but did not arise out of, the claimant’s employment as a social worker for a public school district. Jennings v. Richmond Pub. Schs., 2012 Va. App. LEXIS 212 (Va. Ct. App. June 26, 2012).

Grate stairway. —

Virginia Workers’ Compensation Commission properly found that a claimant proved she sustained an injury by accident arising out of her employment where she was injured on a grate stairway that was not a common work risk. Nottoway Corr. Center/ Va. v. Bradner, 2003 Va. App. LEXIS 283 (Va. Ct. App. May 6, 2003).

Injuries arose out of employment. —

Where slip and fall was caused by wet condition of employer’s premises evidence proved that injury arose out of employment. Chandler v. ARA Food Servs., Inc., 1995 Va. App. LEXIS 346 (Va. Ct. App. Apr. 11, 1995).

Claimant was entitled to receive workers’ compensation benefits for death of employee, claimant’s husband, which “arose out of” employee’s employment with employer while employee worked on a roofing project for it, as a preponderance of the evidence showed employee’s death arose out of head and chest injuries related to fall, and non-expert circumstantial evidence, including fact that people heard ladder being displaced, loose gravel from roof was found around employee, and employee did not complain about employee’s health prior to the fall, supported finding the “arising out of” element of the workers’ compensation claim. K & G Abatement Co. v. Keil, 38 Va. App. 744, 568 S.E.2d 416, 2002 Va. App. LEXIS 494 (2002).

Virginia Workers’ Compensation Commission properly inferred that a claimant’s injuries arose out of his employment, even though the claimant did not recall his actual fall, where: (1) the claimant was near the top of a ladder, (2) his duties required him to stretch half the length of his body away from the ladder to apply tar, (3) he was unable to hold on to the ladder for support because he had a bucket of tar in one hand and a glove to apply the tar on the other, and (4) prior to his fall, he was to one side stretching out half his body from the ladder. Basement Waterproofing & Drainage v. Beland, 43 Va. App. 352, 597 S.E.2d 286, 2004 Va. App. LEXIS 278 (2004).

Where a claimant alleged he aggravated a pre-existing back condition when he fell at his home office, though the treating physicians made no definitive statement as to causation, the Virginia Workers’ Compensation Commission properly considered the claimant’s testimony in determining that his injury was caused by the fall. B & H Constr., Inc. v. Baker, 2006 Va. App. LEXIS 153 (Va. Ct. App. Apr. 25, 2006).

Workers’ compensation claimant’s injury arose out of the claimant’s employment, since the claimant fell on a wheelchair ramp while the claimant was returning to a car after assisting a patient in a wheelchair up the ramp, as: (1) there was a defect in the wheelchair ramp in that a person standing on the sidewalk/curb and looking down at the ramp might perceive the sides of the ramp as being level with the curb; (2) the defect caused the claimant’s fall and the resultant injury; (3) the photographic evidence supported the claimant’s assertion that she was unable to tell, in approaching the ramp from the rear, that the sides of the ramp sloped down to the pavement; and (4) a “rational mind” could find, upon consideration of the totality of the circumstances, that a causal connection existed between the conditions under which the claimant’s work was required to be performed and the claimant’s injury. Nurses 4 You, Inc. v. Ferris, 49 Va. App. 332, 641 S.E.2d 129, 2007 Va. App. LEXIS 59 (2007).

Peculiar to employment. —

Credible evidence established a causal connection between the conditions of a claimant’s employment and her fall and supported the commission’s award of benefits where the commission found that the condition of a loading ramp and the significant angle of the ramp caused or contributed to cause the claimant to fall and fracture her leg; the ramp was steep and had grit or dirt on its surface and these conditions constituted a risk peculiar to the claimant’s employment. Short Stop, Inc. v. Hammond, 2001 Va. App. LEXIS 124 (Va. Ct. App. Mar. 13, 2001).

Application of actual risk test required. —

Virginia Workers’ Compensation Commission erred in failing to apply the actual risk test to determine whether the claimant’s injury, occurring when she tripped over the door threshold as she entered her place of employment, arose out of her employment under § 65.2-101 . The commission should have made findings regarding whether the claimant’s risk of injury was peculiar to her job and not one to which the general public was equally exposed and regarding whether the threshold was defective, requiring an increased decree of attentiveness to negotiate. Dominion Va. Power v. Pulley, 2011 Va. App. LEXIS 191 (Va. Ct. App. June 7, 2011).

Steps. —

The mere fact that the presence of steps explains, at least in part, the fall does not support a finding that the injury arises from the employment. Where the steps are not unusual and no other condition of the employment contributes to the fall, the injury is not compensable. Steps are a risk of everyday life which may, depending on the specific facts of the case, be transformed into a risk peculiar to the workplace. Maida Dev. Co. v. Hayslett, 1995 Va. App. LEXIS 603 (Va. Ct. App. July 25, 1995).

An employee’s claim for injuries sustained as a result of falling on steps in the workplace is compensable if he establishes either that the stairs were defective or that there was a causal connection between the way in which the work was required to be performed and the resulting injury. STG, Inc. v. Tooks, 2001 Va. App. LEXIS 329 (Va. Ct. App. June 12, 2001).

An employee was not entitled to benefits for injuries sustained as a result of falling on steps in the workplace where the employee presented no evidence that the steps were defective or that some condition of the employment caused him to fall. STG, Inc. v. Tooks, 2001 Va. App. LEXIS 329 (Va. Ct. App. June 12, 2001).

The Commission properly rejected a claim for benefits arising out of injuries a claimant sustained when he slipped and fell while descending some steps where the claimant presented no evidence that a condition peculiar to his employment caused him to slip and fall. The claimant simply testified that he slipped and fell, and although his application for benefits alleged various defects in the steps, he neither testified about those conditions nor presented evidence that they caused him to fall. Carroll v. Roland Vaults, Ltd., 2001 Va. App. LEXIS 314 (Va. Ct. App. June 5, 2001).

Fall while stocking shelves. —

Injuries to claimant resulting from fall were compensable, where claimant was standing on a milk crate, increasing the severity of the claimant’s injury over and above that which she would have sustained if she had been at floor level at the time of the fall, claimant was in a vault or refrigerator, enclosed with walls, she was not furnished with an appropriate ladder, had to stand on a milk crate in order to reach the shelving, and at the time this event occurred she had several one-half gallon milk cartons under her arm and was reaching up to place them upon the shelves. Southland Corp. v. Parson, 1 Va. App. 281, 338 S.E.2d 162, 1985 Va. App. LEXIS 100 (1985).

Woodsman falling outside bunkhouse door. —

Where a woodsman was injured when he fell outside the bunkhouse door of his employer’s lumber camp, the employment relationship caused the employee to be at the place he was at the time of the accident and thus exposed him to the hazard or risk of the happening of the accident and the circumstance that the accident and injury occurred outside of regular working hours was wholly immaterial. Lucas v. Lucas, 212 Va. 561 , 186 S.E.2d 63, 1972 Va. LEXIS 208 (1972).

Fall held to result from existing medical problems. —

Where not only did the evidence prove another cause of the accident (an idiopathic fall) in that claimant suffered from hypertension, medication for which caused weakness and dizziness, and an inner ear disorder marked by attacks of dizziness, but the circumstances surrounding the fall negated any inference that the fall arose out of the employment, in that claimant was walking on a level floor free from obstruction, she did not prove that her employment was either the origin or the cause of the fall. Winegar v. ITT, 1 Va. App. 260, 337 S.E.2d 760, 1985 Va. App. LEXIS 96 (1985).

Where the evidence of claimant’s intoxication, which was contained in the hospital records, provided an explanation for his fall, the commission did not err in refusing to apply the unexplained fall presumption and in finding that his fall did not arise out of his employment. Lamberton v. Safeway Stores, Inc., No. 0972-86-2 (Ct. of Appeals May 20, 1987).

Inexplicable fall. —

Where claimant was walking on a flat, level surface in a well-lighted area, the circumstances did not show that the fall resulted from any condition peculiar to the work environment, or any physical condition afflicting claimant; rather, she inexplicably wound up on the floor, injured but conscious. The court concludes that the circumstances of the present case are not such that the only rational inference to be drawn is that the fall arose out of claimant’s employment. Memorial Hosp. v. Hairston, 2 Va. App. 677, 347 S.E.2d 527, 3 Va. Law Rep. 281, 1986 Va. App. LEXIS 320 (1986).

In a workers’ compensation case involving an injury at a construction site, there was ample evidence in the record supporting a finding that the claimant’s injuries arose out of his employment, although the claimant did not remember falling, because the claimant’s fall from height was a result of the work environment, and the fall caused injuries. Liberty Mut. Ins. Corp. v. Herndon, 59 Va. App. 544, 721 S.E.2d 32, 2012 Va. App. LEXIS 36 (2012).

Cause of fall. —

Worker’s testimony and medical records substantiating her continuing complaints of ongoing knee pain, and a doctor’s opinion, supported the Workers’ Compensation Commission finding that a fall was caused, in part, by a compensable knee injury as well as a noncompensable injury. Trellis Cafe Rest. & Grill v. Dano, 2003 Va. App. LEXIS 376 (Va. Ct. App. July 1, 2003).

Returning from breakfast to carry out instructions. —

A woodsman was injured while returning to his employer’s bunkhouse, immediately after eating his breakfast at his employer’s boardinghouse, by slipping on a boardwalk, provided by his employer, near the door of the bunkhouse. The employer’s foreman had temporarily left the work and had instructed the woodsman to keep the time of the men during his absence, and also to notify the men at the bunkhouse, following breakfast, of where they were to work that day. The injury arose out of and in the course of the employment of the injured employee, within the meaning of the Workmen’s (now Workers’) Compensation Act. Honaker & Feeney v. Hartley, 140 Va. 1 , 124 S.E. 220 , 1924 Va. LEXIS 152 (1924).

Falling off workplace steps. —

Condition of the workplace which contributed to claimant’s fall was not merely the unusual nature of the steps per se, but the steps as a gathering place for employees on break. By gathering on the steps, the employees obstructed normal traffic into and out of the building. The inference of the commission that the number of employees gathered on the steps, combined with the necessity for claimant to stand and give way to a limited space, caused her to lose her balance and fall off the unprotected side of the steps is one apparent to the rational mind. Maida Dev. Co. v. Hayslett, 1995 Va. App. LEXIS 603 (Va. Ct. App. July 25, 1995).

H.Heart Disease.

Heart attacks. —

There is no exception to the “injury by accident” test which permits a different analysis in the heart attack cases. The requirement of showing “injury by accident” applies equally to claims resulting from heart attacks. Woody v. Mark Winkler Mgt., Inc., 1 Va. App. 147, 336 S.E.2d 518, 1985 Va. App. LEXIS 76 (1985).

In Virginia, the requirement of showing injury by accident applies equally to claims resulting from heart attacks. Wilhelm v. Rockydale Quarries Corp., 1993 Va. App. LEXIS 571 (Va. Ct. App. Nov. 30, 1993).

Heart attack must “arise out of” employment to be compensable. —

The “arising out of” portion of the requirement of this section is essentially a problem of causation. In solution of this problem, a claimant seeking compensation for a heart attack suffered while at work must prove that the work activity caused or contributed to cause the heart attack. D.W. Mallory & Co. v. Phillips, 219 Va. 845 , 252 S.E.2d 319, 1979 Va. LEXIS 180 (1979).

And burden generally on claimant to prove causal connection. —

Except for the fact that the General Assembly in former § 65.1-47.1 (now § 65.2-402 ) has provided fire fighters and law-enforcement officers a rebuttable presumption that a causal connection exists between work activity and heart disease, where compensation benefits are sought for heart attack suffered by employee while at work, the burden is on the claimant to prove that the accident falls within the statutory definition of compensable injury as injury by accident arising out of employment. D.W. Mallory & Co. v. Phillips, 219 Va. 845 , 252 S.E.2d 319, 1979 Va. LEXIS 180 (1979).

Determination in case of preexisting heart disease. —

In an action for compensation benefits filed by the widow of an employee who suffered a fatal heart attack while at work, where the employee suffered from a preexisting heart disease, the causation problem is complicated by the difficulty in determining whether the heart attack is merely a natural coincidence of the disease or a result of work activity. In this type of situation, common knowledge and experience are inadequate to resolve the problem; indeed, even among medical authorities, substantial disagreement exists concerning the relationship between work activity and a heart attack in a person with a preexisting heart disease. By necessity, therefore, the Commission must look to the medical evidence in the particular case to determine whether the necessary causal connection between work activity and a heart attack has been established. If any credible evidence supports the Commission’s finding that work activity has or has not caused or contributed to cause the heart attack in a particular case, the finding is conclusive and binding upon the Supreme Court. On the other hand, if no credible evidence supports the Commission’s finding, that court is not bound thereby. D.W. Mallory & Co. v. Phillips, 219 Va. 845 , 252 S.E.2d 319, 1979 Va. LEXIS 180 (1979).

Heart attack caused by stress over period of weeks. —

Where claimant’s heart attack was related causally to physical and emotional stresses which had accumulated over a three-week period, it was not an identifiable incident that occurred at some reasonably definite time. Woody v. Mark Winkler Mgt., Inc., 1 Va. App. 147, 336 S.E.2d 518, 1985 Va. App. LEXIS 76 (1985).

Evidence did not establish a causal connection between claimant’s heart attack and the work he was performing at the time it occurred, where claimant, who had a history of chronic heart disease, felt severe pain in his chest while lifting a bag, and was later diagnosed at a hospital as having suffered a heart attack. Aragon Corp. of Am. v. Escobar, No. 1712-89-4 (Ct. of Appeals Oct. 16, 1990).

The denial of dependent benefits to the decedent’s wife in a workers’ compensation action was proper because the death presumption was inapplicable and there was credible evidence to support a finding that the decedent died of a cardiac arrest entirely unrelated to heat exposure. Although the expert medical opinions were in conflict as to whether heat exposure played a role in the decedent’s demise, credible evidence supported the finding that it did not and that the death resulted solely from decedent’s preexisting coronary artery disease. Puller v. Fairfax Sch. Bd., 2011 Va. App. LEXIS 379 (Va. Ct. App. Dec. 6, 2011).

I.Psychological Injury.

Psychiatric treatment not compensable. —

Psychiatric treatment of claimant after she had injured her back in a compensable industrial accident was not compensable, where claimant failed to carry her burden of proving that the psychiatric treatment was causally related to her back injury. Moretto v. Farm Fresh #197, No. 0908-91-1 (Ct. of Appeals Oct. 22, 1991).

Purely psychological disability resulting from disagreements over managerial decisions and conflict with supervisory personnel that cause stressful consequences ordinarily are not compensable. Teasley v. Montgomery Ward & Company, Inc., 14 Va. App. 45, 415 S.E.2d 596, 8 Va. Law Rep. 2327, 1992 Va. App. LEXIS 77 (1992).

Recovery for mental ailments without physical injury. —

The Virginia Supreme Court long ago explicitly held that recovery under the Workers’ Compensation Act may be had as a result of mental ailments unaccompanied by physical injury. Haigh v. Matsushita Elec. Corp. of Am., 676 F. Supp. 1332, 1987 U.S. Dist. LEXIS 12113 (E.D. Va. 1987).

Psychological injury. —

Where a psychological injury is at issue, the fact that the condition manifests itself symptomatically at a time later than that at which the causative incident occurred is of no moment, provided that circumstances show an identifiable incident occurring at a reasonably definite time which causes the emotional injury. Hercules, Inc. v. Gunther, 13 Va. App. 357, 412 S.E.2d 185, 8 Va. Law Rep. 1507, 1991 Va. App. LEXIS 314 (1991).

To be compensable as an injury by accident, a purely psychological injury must be causally related to a physical injury or be causally related to an obvious sudden shock or fright arising in the course of employment. Mitzelfelt v. Mt. Clinton Church of God, 1993 Va. App. LEXIS 643 (Va. Ct. App. Dec. 28, 1993).

Use of the conjunctive “and” expresses the intent of the General Assembly that in order to be compensable, an injury must satisfy both criteria; to be compensable, a psychological injury as with a physical injury, must arise out of the employment while the triggering event of a sudden shock or fright causing the injury must occur in the course of employment. Hess v. Va. State Police, 68 Va. App. 190, 806 S.E.2d 413, 2017 Va. App. LEXIS 280 (2017).

Conflicts with supervisory personnel that cause stressful consequences which result in purely psychological disability are ordinarily not compensable as an injury by accident. Mitzelfelt v. Mt. Clinton Church of God, 1993 Va. App. LEXIS 643 (Va. Ct. App. Dec. 28, 1993).

Psychological disability from work disagreements not compensable. —

Psychological disability resulting from conflicts with supervisory personnel and disagreements over management decisions do not constitute an injury by accident. Teasley v. Montgomery Ward & Company, Inc., 14 Va. App. 45, 415 S.E.2d 596, 8 Va. Law Rep. 2327, 1992 Va. App. LEXIS 77 (1992).

Post traumatic stress disorder. —

Workers’ Compensation Commission award of compensation benefits was upheld where credible evidence supported the commission’s finding that the claimant’s post traumatic stress disorder was causally related to an obvious sudden shock or fright which he sustained in the course of his employment, and that he suffered a compensable “injury by accident” within the meaning of former § 65.1-7. Hercules, Inc. v. Gunther, 13 Va. App. 357, 412 S.E.2d 185, 8 Va. Law Rep. 1507, 1991 Va. App. LEXIS 314 (1991).

Post traumatic stress disorder (PTSD), may be compensable as an “injury by accident” or as an “occupational disease,” depending on how it develops; when based upon a single physical injury or obvious sudden shock or fright, PTSD may be considered an injury by accident, when it is suffered as a result of ongoing stress, it qualifies as a disease. Mottram v. Fairfax County Fire & Rescue, 35 Va. App. 85, 542 S.E.2d 811, 2001 Va. App. LEXIS 102 (2001), aff'd in part and rev'd in part, 263 Va. 365 , 559 S.E.2d 698, 2002 Va. LEXIS 45 (2002).

Whether a Virginia state trooper’s post-traumatic stress disorder resulted from a sudden fright or shock and thus, occurred in the course of employment, was a factual determination made by the Virginia Workers’ Compensation Commission, and since evidence supported that determination, it was not further reviewable on appeal; the trooper’s traumatic experience was not a sudden or unexpected shock or fright for a state trooper who received fatal accident and crash scene reconstruction training. Hess v. Va. State Police, 68 Va. App. 190, 806 S.E.2d 413, 2017 Va. App. LEXIS 280 (2017).

No recovery for emotional distress. —

In accordance with the application of current Virginia law, the Virginia Workers’ Compensation Act precludes plaintiff from recovering for emotional distress in this forum. Haigh v. Matsushita Elec. Corp. of Am., 676 F. Supp. 1332, 1987 U.S. Dist. LEXIS 12113 (E.D. Va. 1987).

Where claimant alleged a gradually incurred injury caused by cumulative events, specifically, she alleged a “pattern of abusive behavior,” continuing over an extended period of time, and she stated that this conduct caused her severe emotional distress, and further, her pleadings did not allege an injury that can be construed as resulting from an obvious sudden mechanical or structural change in her body, therefore, claimant had not alleged such an “injury by accident” within the purview of the Workers’ Compensation Act. Middlekauff v. Allstate Ins. Co., 247 Va. 150 , 439 S.E.2d 394, 10 Va. Law Rep. 785, 1994 Va. LEXIS 10 (1994).

Racial discrimination allegations. —

Claims of race discrimination have never been considered to fall within the generic term “industrial accidents.” Thus, common-law remedies are still available for such claims. Teasley v. Montgomery Ward & Company, Inc., 14 Va. App. 45, 415 S.E.2d 596, 8 Va. Law Rep. 2327, 1992 Va. App. LEXIS 77 (1992).

Injuries as result of harassment and sex discrimination. —

Injuries suffered by employee as a result of alleged harassment and sex discrimination were the result of an accident arising out of and in the course of her employment, and therefore, her exclusive remedy was the Virginia Workers’ Compensation Act. Haddon v. Metropolitan Life Ins. Co., 239 Va. 397 , 389 S.E.2d 712, 6 Va. Law Rep. 1613, 1990 Va. LEXIS 30 (1990), overruled, Middlekauff v. Allstate Ins. Co., 247 Va. 150 , 439 S.E.2d 394, 10 Va. Law Rep. 785, 1994 Va. LEXIS 10 (1994), overruled, Lichtman v. Knouf, 248 Va. 138 , 445 S.E.2d 114, 10 Va. Law Rep. 1554, 1994 Va. LEXIS 99 (1994).

J.Assault/Murder.

Murder may be an accident. A.N. Campbell & Co. v. Messenger, 171 Va. 374 , 199 S.E. 511 , 1938 Va. LEXIS 287 (1938); Hopson v. Hungerford Coal Co., 187 Va. 299 , 46 S.E.2d 392, 1948 Va. LEXIS 223 (1948).

If the assault is personal to the employee and not directed against him as an employee or because of his employment, the injury does not arise out of his employment. Richmond Newspapers, Inc. v. Hazelwood, 249 Va. 369 , 457 S.E.2d 56, 1995 Va. LEXIS 47 (1995).

To be entitled to an award arising from an assault, a claimant must establish that the assault was directed against him as an employee, or because of his employment. Smithfield Packing Co. v. Carlton, 29 Va. App. 176, 510 S.E.2d 740, 1999 Va. App. LEXIS 133 (1999).

A showing that the probability of assault was augmented because of the peculiar character of the claimant’s job supplies the requisite causal connection. Smithfield Packing Co. v. Carlton, 29 Va. App. 176, 510 S.E.2d 740, 1999 Va. App. LEXIS 133 (1999).

Willful assault may be “accident.” —

Although the injury is the result of the willful and intentional assault of either a fellow employee or a third person, this fact does not prevent the injury from being accidental within the meaning of the Act. Continental Life Ins. Co. v. Gough, 161 Va. 755 , 172 S.E. 264 , 1934 Va. LEXIS 298 (1934) (see A.N. Campbell & Co. v. Messenger, 171 Va. 374 , 199 S.E. 511 (1938)).

The term “injury by accident” includes those injuries which result from a willful and intentional assault by a third party on an employee. County of Chesterfield v. Goyne, 26 Bankr. 47, 1982 Bankr. LEXIS 5318 (Bankr. E.D. Va. 1982).

Assault by third party. —

The mere fact that the employee sustains injury from an assault made upon him by a third party does not entitle him to compensation; he must go further and prove that the assault was directed against him as an employee, or because of his employment; that is, that it arose out of as well as in the course of his employment. Continental Life Ins. Co. v. Gough, 161 Va. 755 , 172 S.E. 264 , 1934 Va. LEXIS 298 (1934); A.N. Campbell & Co. v. Messenger, 171 Va. 374 , 199 S.E. 511 , 1938 Va. LEXIS 287 (1938); Hopson v. Hungerford Coal Co., 187 Va. 299 , 46 S.E.2d 392, 1948 Va. LEXIS 223 (1948).

Where at the time of an assault, claimant was performing the duties of his employment in a place he was required to be and was using means of transportation for which the cost was paid by his employer, even if the motive for the assault was to deprive him of this means of transportation, the assault was not personal to the employee, but arose out of the employment. Continental Life Ins. Co. v. Gough, 161 Va. 755 , 172 S.E. 264 , 1934 Va. LEXIS 298 (1934).

An assaulted claimant must show that the assault was aimed at him as an employee in order to recover. To allow recovery absent such evidence would require the adoption of the positional risk doctrine which Virginia has not adopted. Virginia has, instead, adopted the “actual risk” test. Park Oil Co. v. Parham, 1 Va. App. 166, 336 S.E.2d 531, 1985 Va. App. LEXIS 79 (1985).

Fight with coworker. —

While the employee, who suffered a shoulder injury, successfully established that a fight between himself and a co-employee was not personal in nature, but related to employer’s business, the employee failed to prove that he was not responsible for the fight; thus, the employee was not entitled to recover workers’ compensation benefits because his injury did not “arise out of” his employment. Stillwell v. Lewis Tree Serv., 47 Va. App. 471, 624 S.E.2d 681, 2006 Va. App. LEXIS 32 (2006).

Employee killed by contract killer. —

Where employee was not murdered in the course of a robbery but was possibly killed by a contract killer, his death did not arise out of his employment. Goggin v. United Ins. Co., No. 0127-89-2 (Ct. of Appeals Jan. 16, 1990).

Revengeful attack on Commonwealth’s attorney. —

A case which involves neither the usual employer-employee relationship nor a typical industrial accident, but rather involves a Commonwealth’s attorney charged with the duty of exercising his authority in different places, including his home, and at various times, including evening hours, requires a different definition of “in the course of.” Graybeal v. Board of Supvrs., 216 Va. 77 , 216 S.E.2d 52, 1975 Va. LEXIS 251 (1975).

“Arising” means “originating,” where the Commonwealth’s attorney’s nighttime injury from exploding bomb placed on the top of his family car no less arose in the course of his employment than if he had been shot by his revenge-seeking assailant in the courtroom immediately following the murder trial, or if he had been injured by a bomb triggered to explode in his office upon his return from the courtroom. Graybeal v. Board of Supvrs., 216 Va. 77 , 216 S.E.2d 52, 1975 Va. LEXIS 251 (1975).

Where the course from prosecution to desire-for-revenge to injury of a Commonwealth’s attorney was unbroken, constituting a single work-connected incident, the Commission’s denial of compensation was reversed and the case remanded for the award to the claimant of appropriate compensation. Graybeal v. Board of Supvrs., 216 Va. 77 , 216 S.E.2d 52, 1975 Va. LEXIS 251 (1975).

The risk of suffering a physical attack on account of terminating a subordinate’s employment is an ordinary risk incidental to a superior’s employment. County of Chesterfield v. Goyne, 26 Bankr. 47, 1982 Bankr. LEXIS 5318 (Bankr. E.D. Va. 1982).

Where employee is aggressor. —

Compensation is generally denied where a laborer suffers injuries from an assault, when the claimant is himself in fault as the aggressor; this because, in such cases, the proximate cause of the injury is not the employment, but the fault of the claimant. Farmers' Mfg. Co. v. Warfel, 144 Va. 98 , 131 S.E. 240 , 1926 Va. LEXIS 232 (1926).

Stabbing related to work conditions. —

Evidence supported the conclusion that claimant’s injury was caused by her ordering the men out of the store, which exposed her to the risk of bodily harm. In complying with employer’s instructions to move altercations between customers outside of the store, claimant exposed herself to an actual risk of injury, which flowed from her employment as a rational consequence. In other words, her stabbing injury was causally connected to the conditions under which she was required to work. Southland Corp. v. Curtis, 1995 Va. App. LEXIS 114 (Va. Ct. App. Feb. 14, 1995).

Hockey player. —

Where the workers’ compensation claimant, a professional hockey player, was injured in a fight that the claimant was ordered by the claimant’s coach to instigate, the injury arose out of the claimant’s employment pursuant to § 65.2-101 , as expert testimony supported the finding that fighting was an integral part of hockey, and at the time of the injury, the claimant was performing a task that the claimant was employed to perform. Norfolk Admirals v. Jones, 2005 Va. App. LEXIS 443 (Va. Ct. App. Nov. 1, 2005).

Shooting of bartender at restaurant with homosexual clientele. —

Where assailants attacked the restaurant because of its homosexual clientele, and in doing so, shot claimant, who was working as a bartender, claimant’s injury had its origin in a risk connected with his employment, and it flowed from his employment as a rational consequence. Therefore, the commission did not err in finding that claimant proved an injury by accident arising out of his employment. Bull Ring, Inc. v. Keppel, 1995 Va. App. LEXIS 105 (Va. Ct. App. Feb. 7, 1995).

Tractor trailer driver negotiating turn triggering furious attack by motorcyclist. —

Where furious attack on claimant was triggered by claimant’s need to occupy part of two lanes to negotiate a turn in a tractor trailer and the difficulty in seeing a small object such as a motorcycle on the right side, impersonal circumstances directly attributable to the duties of his employment, it clearly satisfied the “arising out of” prong of compensability. Smithfield Packing Co. v. Carlton, 29 Va. App. 176, 510 S.E.2d 740, 1999 Va. App. LEXIS 133 (1999).

Goosing injury did not arise out of employment. —

Where evidence showed clearly that the goosing in pressroom was of a personal nature and not directed against the recipients as employees or in furtherance of the employer’s business, injury, suffered as a result of the goosing, did not arise out of his employment. Richmond Newspapers, Inc. v. Hazelwood, 249 Va. 369 , 457 S.E.2d 56, 1995 Va. LEXIS 47 (1995).

Pressroom goosing. —

Assault was personal to employee where there was evidence that gooser goosed fellow workers because he considered them his friends. Indeed, friendship seems to have been the motivation for the pressroom goosing, as an assistant in the pressroom testified that he did not know “of anybody that had goosed anybody that didn’t consider them a friend.” Richmond Newspapers, Inc. v. Hazelwood, 249 Va. 369 , 457 S.E.2d 56, 1995 Va. LEXIS 47 (1995).

Injury arising from horseplay between employees. —

Employee who was the innocent victim of horseplay by co-employees when they threw ice at him, whereupon he suffered an injury, was entitled to workers’ compensation benefits under § 65.2-101 , as the injury resulted from an accident in the course of and arising out of his employment; as horseplay rather than an assault was involved, no causal connection between the injury and the work required by the employer was required to be shown. Simms v. Ruby Tuesday, Inc., 281 Va. 114 , 704 S.E.2d 359, 2011 Va. LEXIS 17 (2011).

Injury from assault by coemployee. —

In a case in which a former co-worker stabbed the claimant while he was working, the Workers’ Compensation Commission erred in finding that the claimant failed to prove that the injury arose out of a risk of employment because, even though the claimant knew the co-worker, the assault could still have arisen out of his employment as long as random assaults were a risk of the job, and there was no evidence the co-worker’s motives were personal; and the Commission could consider other evidence than motive to satisfy the requirement that the injury arose from a risk of employment where the co-worker’s motive was unknowable. King v. DTH Contract Servs., 69 Va. App. 703, 823 S.E.2d 6, 2019 Va. App. LEXIS 26 (2019).

K.Disobeying Instructions.

Fall from truck while disobeying instructions. —

A helper on a soft drink truck left the truck cab to get a bottle of soft drink from the body of the truck. He was cautioned by the driver to wait until the truck was stopped, but disregarded the suggestion or warning and, in the effort to get the bottle, fell from the truck and was killed. While deceased was permitted to satisfy his thirst with soft drinks from the truck, he had been admonished on previous occasions that it was dangerous for him to try to procure a bottle while the truck was in motion. It was held that the accident arose out of and in the course of employment of the deceased. Bradshaw v. Aronovitch, 170 Va. 329 , 196 S.E. 684 , 1938 Va. LEXIS 191 (1938).

Operating machine in violation of orders. —

The employee was employed as a filling station attendant. A front-end loader purchased by the employer in connection with his separate hauling and grading business was delivered to the station pending its removal to a job site. In violation of orders to leave the machine alone the employee used it to take trash from the filling station to the dump, a task usually performed by one of the employer’s truck drivers and a function for which the loader was not designed. The employee was not familiar with the operation of the machine, lost control of it and was seriously injured when it turned over. But since in operating the machine the employee was in a place where he was not reasonably expected to be and not engaged in the fulfillment of his duties, the Commission erred in finding the injury arose out of and in the course of his employment and the award in his favor was reversed. Conner v. Bragg, 203 Va. 204 , 123 S.E.2d 393, 1962 Va. LEXIS 129 (1962).

The testimony of witnesses, as well as a co-worker’s written statement, constituted credible evidence to support the commission’s factual finding that claimant reached into the machine to remove dirty, wet cotton, while the machine was running, in violation of employer’s safety rules; by deliberately reaching into the machine while it was in operation, claimant violated employer’s known safety rules. Therefore, the commission did not err in ruling that claimant was barred from receiving any benefits under the Workers’ Compensation Act. Ogburn v. Southside Gin, Inc., 1997 Va. App. LEXIS 161 (Va. Ct. App. Mar. 25, 1997).

Ignoring doctor’s orders. —

Employee’s injuries were not compensable where the employee’s injury was the expected result of an activity that violated the doctor’s specific restrictions following an earlier compensable injury; the employee’s choice to ignore the doctor’s orders was not an injury by accident under the Act. Carpet Palace, Inc. v. Salehi, 26 Va. App. 357, 494 S.E.2d 870, 1998 Va. App. LEXIS 22 (1998).

L.Illustrative Cases.

The plaintiff was precluded by the Act’s exclusive remedies provision under § 65.2-307 , from seeking redress in court for her personal injuries which were sustained when her employer fired her and forcibly removed her from the place of employment. Sutter v. First Union Nat'l Bank, 932 F. Supp. 753, 1996 U.S. Dist. LEXIS 10985 (E.D. Va. 1996).

Police officer acted in course of employment. —

In concluding her affairs at the courthouse as the arresting officer in a drunk driving case, police officer acted in the course of her employment. Thore v. Chesterfield County Board of Supervisors, 10 Va. App. 327, 391 S.E.2d 882, 6 Va. Law Rep. 2371, 1990 Va. App. LEXIS 81 (1990).

Injury during bank robbery. —

The claimant was injured in an accident “arising out of” her employment, where, as part of her duties, she was required regularly to handle and carry large sums of money in cash to a bank and was injured during a robbery of that bank which occurred while she was at the bank to deposit cash for her employer. The claimant’s regular presence in a branch bank, an environment that is prone to the violence of robbery, exposed her to a special risk of assault. R & T Invs., Ltd. v. Johns, 228 Va. 249 , 321 S.E.2d 287, 1984 Va. LEXIS 196 (1984).

Truck driver shot during late night robbery failed to show that robbery arose out of his employment. —

Truck driver who was shot after being stopped by robbers late at night while driving for his employer satisfied the third requirement of this section, in course of employment, because he was injured while fulfilling the duties of his employment; but he did not satisfy the second requirement that the injury arise out of his employment since he was unable to offer any evidence indicating that the assault could be traced to his employment as a truck driver and he did not demonstrate that driving the truck was a contributing proximate cause to the assault or that the assault was a hazard to which he would not have been exposed apart from the employment, since the same tragedy could have happened to anyone driving on the interstate highway at 3:00 a.m. Hill City Trucking, Inc. v. Christan, 238 Va. 735 , 385 S.E.2d 377, 6 Va. Law Rep. 840, 1989 Va. LEXIS 156 (1989).

Truck driver who was shot in the course of his employment failed to prove that the unexplained assault upon him arose out of his employment, where the assailant made no attempt to rob him or to steal his truck or its contents. Metcalf v. A.M. Express Moving Sys., 230 Va. 464 , 339 S.E.2d 177, 1986 Va. LEXIS 147 (1986).

Compensable new injury. —

Where the pain from the injury was in a different location than that which he had previously experienced, and an MRI revealed new objective findings, thus, evidence supported the commission’s finding that the accident caused a new injury and was not an aggravation of an old injury. First Team Auto v. Saylor, 1993 Va. App. LEXIS 612 (Va. Ct. App. Dec. 7, 1993).

Decedent did not suffer identifiable compensable injury. —

Where Workers’ Compensation Commission denied benefits after claimant’s husband suffered from sudden cardiac arrest while he was exposed to radar waves at work and died, claimant failed to establish that the husband suffered an identifiable compensable injury because claimant’s alleged identifiable incident, three weeks of exposure for six to eight hours per workday, was an example of repeated exposures over weeks, not a single, definite occasion of exposure. Johnson v. Gen. Dynamics Corp., 2022 Va. App. LEXIS 61 (Va. Ct. App. Mar. 8, 2022).

Where a puddle of water had accumulated in front of steps. —

which required claimant, when he stepped down, to take a longer than normal step, causing his leg to give way and resulting in an acute strain to his lower back, the steps and puddle of water were hazards peculiar to claimant’s work environment at the time, and his injury arose out of a condition of the employment. Klate Holt Co. v. Hamilton, No. 0479-89-1 (Ct. of Appeals April 10, 1990).

Traveling salesman injured in car accident. —

Employee, a wastewater treatment sewer salesman, who was injured in car accident while driving on highway when his car ran off the road was entitled to compensation benefits for his injury was caused by an accident associated with a risk connected with his employment as a traveling salesman; the road conditions were “fine” and there were no cars seen near his vehicle prior to the accident; his automobile veered off the highway without being struck and without him applying his brakes to avoid going into the ditch and hitting the guardrail. Vaden Co. v. Keiser, 1994 Va. App. LEXIS 24 (Va. Ct. App. Jan. 25, 1994).

Truck driver staying in hotel while waiting to pick up cargo. —

A truck driver had delivered a cargo to a city in another state, and on orders from his employer waited there to pick up another cargo. He fell to his death from the window of his hotel room, there being no circumstances to indicate suicide. The Commission properly awarded compensation to his wife and children. The presumption was that the death arose out of and in the course of the employment. Southern Motor Lines Co. v. Alvis, 200 Va. 168 , 104 S.E.2d 735, 1958 Va. LEXIS 172 (1958).

Professional athlete injured in an out-of-state game. —

Injured professional athlete presented sufficient evidence of an injury through team reports prepared by his employer establishing that the athlete injured his knee while at work for the team in a game played in Pittsburgh, a doctor’s report confirming that the incident caused the athlete’s knee injury, and the athlete’s testimony that he injured his knee during the game. Pro-Football Inc. v. Paul, 39 Va. App. 1, 569 S.E.2d 66, 2002 Va. App. LEXIS 540 (2002).

Injury while starting truck in preparation for work held not in course of employment. —

A worker was employed to remove snow from the streets by means of a snow plow attached to a truck owned by him, and for this work was paid by the hour. After eating lunch the worker went out to start his truck, preliminary to beginning the work of removing the snow, and while attempting to start the truck was injured. The accident did not arise in the course of the worker’s employment. Staats v. Town of Vienna, 167 Va. 37 , 187 S.E. 485 , 1936 Va. LEXIS 272 (1936).

Injury received while performing preliminary task assigned after arriving at work early. —

Where plaintiff had arrived at the scene of his employment early and was performing a preliminary task assigned to him, an injury accidentally inflicted upon him by defendant, a fellow employee, was properly held to have arisen out of and in the course of plaintiff’s employment. Ferrell v. Beddow, 203 Va. 472 , 125 S.E.2d 196, 1962 Va. LEXIS 170 (1962).

Employee’s injury sustained at a trash receptacle on employer’s premises was compensable, even though employee had not yet clocked in and the trash receptacle was a few steps out of the way of employee’s normal path to work. Jones v. Colonial Williamsburg Found., 10 Va. App. 521, 392 S.E.2d 848, 6 Va. Law Rep. 2790, 1990 Va. App. LEXIS 121 (1990).

While attending meeting at which employer expected employee to be. —

The employer held meetings once a week and at these meetings a lecturer employed by the employer made certain talks with the object of increasing efficiency. The employee received no extra compensation for the time consumed in attendance at these lectures. It appeared that all employees were notified thereof and were expected to be in attendance thereat. The employee while attending one of these lectures was struck by a falling electric fixture in the rear of the store, while awaiting the arrival of the lecturer. The accident arose out of and in the course of the employee’s employment, and the employee was precluded from bringing the common-law action against her master. Garris v. Peoples Drug Stores, 162 Va. 428 , 174 S.E. 665 , 1934 Va. LEXIS 259 (1934).

Injury occurring while running a business errand for employer. —

Employee’s injury arose out of and in the course of her employment where she was injured when hot steam spewed into her automobile when she was driving to pick up paychecks for her employer. Luskins, Inc. v. Neal, 1993 Va. App. LEXIS 526 (Va. Ct. App. Nov. 9, 1993).

Graduate research assistant’s travel from professional conference site to campsite by bicycle, even though her intended purpose after arrival was employment related, was not reasonably fulfilling the duties of employment or performing functions reasonably incidental to her employment. Accordingly, since her injuries, which were caused by being struck by a hit and run vehicle while riding her bicycle, did not occur in the course of her employment, the Commission’s award was reversed. VPI & State Univ. v. Wood, 5 Va. App. 72, 360 S.E.2d 376, 4 Va. Law Rep. 621, 1987 Va. App. LEXIS 271 (1987).

Injury received while en route to doctor’s office for treatment of compensable injury. —

An employee who suffers a compensable injury may be awarded compensation for additional injuries suffered in an automobile accident occurring while the employee is en route from his place of employment to a doctor’s office for further treatment of the original injury. Brosnahan v. Immer & Co., 207 Va. 720 , 152 S.E.2d 254, 1967 Va. LEXIS 128 (1967) (commented on in 53 Va. L. Rev. 1763 (1967)).

The requirement of former § 65.1-88 (now § 65.2-603 ) that the employer furnish and the employee accept medical attention is read into the employment contract between them. When the employer directs or authorizes the employee to seek medical attention for a work-connected injury and the employee follows such direction or authorization, they are but fulfilling the reciprocal obligations of the Act and their contract. To say that an additional injury, suffered by an employee while fulfilling such an obligation, is not also work-connected has little support in modern legal authority and even less in logic. Brosnahan v. Immer & Co., 207 Va. 720 , 152 S.E.2d 254, 1967 Va. LEXIS 128 (1967) (citing Glassco v. Glassco, 195 Va. 239 , 77 S.E.2d 843 (1953) and commented on in 53 Va. L. Rev. 1763 (1967)).

Home care nurse en route to patient’s home. —

Accident which occurred while claimant, who worked as a home care nurse, was en route from her home to a patient’s home, did not arise out of and in the course of her employment. Sentara Leigh Hospital v. Nichols, 12 Va. App. 841, 407 S.E.2d 334, 8 Va. Law Rep. 224, 1991 Va. App. LEXIS 161 (1991).

Work related risk or work related exertion did not cause injury. —

Where employer sustained an acute lumbosacral strain while working on a shower stall within the scope of his employment as a plumber, the evidence was insufficient to show that the strain arose out of the employment, since the claimant failed to show that the conditions of the workplace or that some significant work related exertion caused the injury. Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 482, 382 S.E.2d 305, 6 Va. Law Rep. 111, 1989 Va. App. LEXIS 100 (1989).

Claimant’s injury resulting from the mere act of squatting was not compensable, where she experienced pain in her knee when she squatted to pick up debris during an assembly-line break after being directed by her supervisor to begin sweeping. Francisco v. O’Sullivan Indus., No. 0469-91-3 (Ct. of Appeals Oct. 22, 1991).

A claimant was entitled to benefits for a back injury where the evidence established that the claimant was working in a crouched position, arranging forty-pound water bottles and that, after completing this activity, the claimant straightened up from the squatting position and felt a burning sensation in his lower back toward his hip area. International Paper Co. v. Dehart, 2000 Va. App. LEXIS 340 (Va. Ct. App. May 9, 2000).

Worker seeking workers’ compensation needed to show that workplace conditions or some significant work related exertion caused the injury; a decision of the Virginia Workers’ Compensation Commission denying compensation was affirmed where a worker was injured while squatting to unlock a drawer. Coates v. Gap, Inc., 2003 Va. App. LEXIS 584 (Va. Ct. App. Nov. 12, 2003).

Injury caused by shoes worn during employment. —

Claimant was employed as a core maker for a manufacturer of metal pipe, and while engaged in his work wore shoes with a metal guard or tip to prevent injury to his toes. At the time of the alleged accident he was stooping to get sand in connection with his work when he felt a painful or pinching sensation in the front of his right foot. He cut off the offending part of the shoe and submitted to medical treatment, but the sore place became progressively worse and because of a hardening of the arteries it became necessary to amputate the foot. The injury arose out of and in the course of the employment of the claimant. Lynchburg Foundry Co. v. Irvin, 178 Va. 265 , 16 S.E.2d 646, 1941 Va. LEXIS 162 (1941).

Worker attempting to cross picket line. —

A worker who had been to lunch during the noon hour, who found himself involved in a strike, who was told that he could not go back to work, and who was injured in an attempt to pass a picket, would have been injured in the course of his employment. A.N. Campbell & Co. v. Messenger, 171 Va. 374 , 199 S.E. 511 , 1938 Va. LEXIS 287 (1938).

Partnership employee performing personal services for one partner. —

Where employee of partnership, who was employed to work at a service station and to do such other work as the partners directed him to do at their homes and elsewhere, was injured while cleaning the cellar floor in the home of one of the partners, the accidental injuries arose out of and in the course of the employment. Arrington v. Murray, 182 Va. 1 , 28 S.E.2d 19, 1943 Va. LEXIS 123 (1943).

Detour too slight to be of moment. —

Claimant’s duties as an automobile salesman had kept him downtown interviewing a prospect until it was nearly time for him to report to his employer’s warehouse for floor duty. Detained in his efforts as a salesman, he telephoned his wife and asked that supper be put a little forward that he might reach the warehouse on time. Claimant’s home was within one block of the warehouse. Immediately after supper, he left his home and near it slipped on the sidewalk, fell and was hurt. The injury arose out of and in the course of claimant’s employment, since his stopping for supper at home was purely incidental and the detour was too slight to be of moment. Taylor v. Robertson Chevrolet Co., 177 Va. 289 , 13 S.E.2d 326, 1941 Va. LEXIS 216 (1941).

Quenching one’s thirst in a conventional manner at a place the employee is expected to be is considered incidental to the employment and, thus, cannot be considered a frolic of the employee’s own. Kraf Constr. Servs., Inc. v. Ingram, 17 Va. App. 295, 437 S.E.2d 424, 10 Va. Law Rep. 539, 1993 Va. App. LEXIS 548 (1993).

While riding to work with employer’s representative. —

Where the employee and other workers met at the home of the employer’s representative, who drove them to work, and this was the customary practice which not only gave the employees free transportation but benefited the employer by assuring their presence on the job, injuries received during the course of transportation were held compensable. LeWhite Constr. Co. v. Dunn, 211 Va. 279 , 176 S.E.2d 809, 1970 Va. LEXIS 247 (1970).

Where the employee’s supervisor, as he had frequently done with other tardy newscarriers, went to the home of a boy who had overslept and drove him to work, the carrier’s injuries received en route were held to be compensable as he came under his supervisor’s control and was about his employer’s business when he accepted the free ride. The benefit derived by the employer from such transportation is obvious. LeWhite Constr. Co. v. Dunn, 211 Va. 279 , 176 S.E.2d 809, 1970 Va. LEXIS 247 (1970).

Where the employee was permitted to ride in employer’s truck for his personal convenience in returning home for the weekend, and was not instructed to do any work at destination, injuries received en route were not compensable. LeWhite Constr. Co. v. Dunn, 211 Va. 279 , 176 S.E.2d 809, 1970 Va. LEXIS 247 (1970).

Fact that entrance into facility required crossing railroad track not sufficient to include crossing in zone of employment. —

Estate of employee who was killed on his way home from work when a train struck his automobile while crossing the right-of-way adjoining his employer’s business was properly denied award, where the claimant’s evidence did not prove that the employer constructed the crossing or acted in a manner sufficient to include the crossing in the zone of employment. The mere fact that the main entrance into a facility requires one to cross a railroad track which is contiguous to the employer’s property is not sufficient to make that crossing a part of the employer’s premises. Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 355 S.E.2d 347, 3 Va. Law Rep. 2220, 1987 Va. App. LEXIS 179 (1987).

Injury received while lifting. —

There was credible evidence to support the Commission’s finding that the claimant established a compensable injury by industrial accident, and that the Commission properly applied the applicable law, where the claimant complained of the weight of the beam at the time of the lifting incident, he complained of back pain to two co-workers who corroborated his statement, he consistently attributed his back injury to the lifting incident, the lifting occurred at work and was part of his job as a mill wright, and his treating physician stated that gradually increasing pain was a very common sequence of events in cases of herniated discs and conclusively related the injury to the lifting incident. McFeely Hardwoods & Lumber v. Miller, 4 Va. App. 334, 358 S.E.2d 178, 4 Va. Law Rep. 1, 1987 Va. App. LEXIS 186 (1987).

Workers’ Compensation Commission’s finding that a claimant sustained an injury by accident under § 65.2-101 was proper. While the claimant had answered on a chiropractic form that she had not experienced a sudden injury and that she had experienced an injury without obvious cause, these statements did not defeat her claim; instead, the Commission was free to interpret this isolated testimony in light of the claimant’s testimony as a whole, including the claimant’s testimony that, while she was lifting a patient onto the toilet, she “felt something pull” in her back at the time. E. Shore Cmty. Servs. Bd. v. Robinson, 2010 Va. App. LEXIS 477 (Va. Ct. App. Dec. 14, 2010).

Injury received while bending and picking up. —

Claimant did not engage in any significant exertion, her action of bending did not involve any awkward position, nor did any condition peculiar to her workplace cause her injury. Although she was performing a work related activity when the injury occurred, no condition of the workplace or additional exertion necessitated by work, aside from the usual act of bending and picking up a not heavy item, caused the injury. Therefore, claimant’s injury did not arise out of her employment. Cox v. Wade’s #43/Cox v. Wade's #43/Wade's Supermarket, Inc., 1994 Va. App. LEXIS 556 (Va. Ct. App. Aug. 23, 1994).

Injury received while twisting in chair. —

Where claimant’s injury was caused solely by twisting in his chair at work, the conditions of the work place had nothing to do with the injury he sustained, and the injury therefore was not compensable. Timmons v. Airborne Freight Corp., 1995 Va. App. LEXIS 450 (Va. Ct. App. May 16, 1995).

Striking elbow on door jamb. —

Claimant, who was preparing to give an injection to a patient suffering an anaphylactic reaction, was walking down the hall while reading the patient’s chart. He reached up to rub his head and because his attention was focused on the chart, he failed to see a door jamb. He struck his elbow on the jamb, causing his knuckle to injure his eye. Resulting injury was compensable because walking while reading a chart was a hazard created by the circumstances of the job. Russell County Medical Ctr. v. Chaney, 1995 Va. App. LEXIS 432 (Va. Ct. App. May 9, 1995).

Employee who was working 30 feet above the ground in a fully extended position as he reached down to attach his lanyard to a safety line and first felt a numbness in his hand suffered an injury by accident, even if the accident would not have been sufficient to cause the injury in the absence of employee’s preexisting condition. Kemp v. Tidewater Kiewit, 7 Va. App. 360, 373 S.E.2d 725, 5 Va. Law Rep. 838, 1988 Va. App. LEXIS 122 (1988).

Plumber’s helper sustained a compensable injury when he twisted his knee while digging a ditch, even though he could not relate the exact date of accident, since he had informed his immediate supervisor shortly after the accident. Kane Plumbing, Inc. v. Small, 7 Va. App. 132, 371 S.E.2d 828, 5 Va. Law Rep. 220, 1988 Va. App. LEXIS 88 (1988).

Claimant’s injury arose out of her employment, where she knocked a bottle of glass cleaner from a window ledge, “turned and stooped quickly” to catch it with a sudden movement, and, as a result, injured her knee. Southside Boys Club, Inc. v. Gordon, No. 0537-90-1 (Ct. of Appeals Sept. 25, 1990).

Accidental discharge of firearm. —

Where a deputy high constable of the City of Richmond was accidentally shot while in the course of employment by a fellow deputy who was cleaning a firearm customarily carried by the deputies, the accident arose out of the employment. City of Richmond v. Johnson, 202 Va. 33 , 115 S.E.2d 910, 1960 Va. LEXIS 187 (1960).

Injury to service station employee by driver who intended only to frighten. —

Where a customer at a service station gunned his vehicle, only aiming to frighten, but caused an injury to an employee, the injury was compensable, the case being analogous to the horseplay cases in which a nonparticipant in the act was injured during the course of his employment. Park Oil Co. v. Parham, 1 Va. App. 166, 336 S.E.2d 531, 1985 Va. App. LEXIS 79 (1985).

Mutual horseplay. —

Where co-workers mutually participated in horseplay the resulting injury is not an “injury by accident” as contemplated by this section. Dublin Garment Co. v. Jones, 2 Va. App. 165, 342 S.E.2d 638, 1986 Va. App. LEXIS 255 (1986).

Unilateral act analogous to horseplay. —

Where the injury arises from the unilateral act of a co-worker upon a nonparticipating claimant, the motivation being in the spirit of a playful act which is analogous to “horseplay,” it is an “injury by accident” insofar as the claimant is concerned. Dublin Garment Co. v. Jones, 2 Va. App. 165, 342 S.E.2d 638, 1986 Va. App. LEXIS 255 (1986).

Claimant’s playing “two on two” basketball was not an accepted and normal activity at the place of employment; therefore, claimant’s injury did not arise out of his employment. Mullins v. Westmoreland Coal Co., 10 Va. App. 304, 391 S.E.2d 609, 6 Va. Law Rep. 2356, 1990 Va. App. LEXIS 84 (1990).

Employee’s activity in working on his personal car, on his employer’s premises and during his hours of employment, during a lull in his work obligations, with his employer’s authorization, fell within the scope of his employment, and that the injury which he suffered in performing that work arose out of and in the course of his employment and is compensable. Ablola v. Holland Rd. Auto Center, Ltd., 11 Va. App. 181, 397 S.E.2d 541, 7 Va. Law Rep. 648, 1990 Va. App. LEXIS 179 (1990).

Severe intoxication. —

An employee may abandon his employment by reaching an advanced state of intoxication which renders the employee incapable of engaging in his duties. This result is not based upon a special statutory defense of intoxication. Rather, a severely intoxicated employee has removed himself from the scope of his employment. Any injuries thereafter suffered are not “in the course of” the employment. The rule does not apply, however, where an intoxicated employee continues actively to perform his duties. American Safety Razor Company v. Hunter, 2 Va. App. 258, 343 S.E.2d 461, 1986 Va. App. LEXIS 266 (1986).

Employer sponsored party. —

On the facts, employer sponsored party was so closely connected and associated with the employment in purpose, time, location, and function that the fatal injury sustained by employee in exiting into parking lot arose out of and in the course of her employment. Kum Ja Kim v. Sportswear, 10 Va. App. 460, 393 S.E.2d 418, 6 Va. Law Rep. 2728, 1990 Va. App. LEXIS 115 (1990).

Aircraft refueler’s neck injury. —

Where claimant’s job involved connecting fuel hoses to commercial aircraft and observing the fuel gauges in the underside of the aircraft’s wing to determine when the aircraft was completely fueled, and on day of injury claimant looked directly overhead in an unusual or awkward position at the gauge of the aircraft he was refueling and heard a pop in his neck, the injury to his neck was caused by exertion on that occasion that was peculiar to his employment and thereby arose out of his employment. Ogden Allied Aviation Servs. v. Shuck, 18 Va. App. 756, 446 S.E.2d 898, 11 Va. Law Rep. 93, 1994 Va. App. LEXIS 533 (1994).

Horse trainer bitten by dog. —

Employee did not sustain an injury by an accident that arose out of her employment where nothing about the nature or character of her work, i.e., the care and training of horses, reasonably could have exposed or subjected her to the danger of being bitten by a co-worker’s pet dog. It simply was not apparent to a rational mind, in the circumstances of this case, that a causal connection existed between the conditions of employee’s required work and her injury. Lipsey v. Case, 248 Va. 59 , 445 S.E.2d 105, 10 Va. Law Rep. 1460, 1994 Va. LEXIS 79 (1994).

Surveyor bitten by dog. —

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. Holmes v. R. Kenneth Weeks Eng'rs, 1995 Va. App. LEXIS 484 (Va. Ct. App. June 6, 1995).

School employee bitten by dog. —

Employee’s injury from dog bite arose out of her employment; although contact with dog was not part of employee’s regular work duties, her contact was in direct response to repeated instructions of her supervisor for her to meet his dog. Prince William County Sch. Bd. v. Fogarty, 1999 Va. App. LEXIS 513 (Va. Ct. App. Aug. 31, 1999).

Produce clerk picking up strawberry. —

In bending over to pick up a strawberry, produce clerk was not in an unusual position or exerting more than usual while performing a job-related task. Ruddick Corp. v. Robertson, 1995 Va. App. LEXIS 506 (Va. Ct. App. June 13, 1995).

Employee returning from random drug screening. —

No evidence in the record proved that a particular risk associated with the claimant’s work caused her injury. There was nothing unusual about the car or its door, and the claimant, who was returning from a routine random drug screening for employer, was not performing any significant work-related activity when she hit her head on the door frame. Nothing about the manner in which she was doing her job or any condition of the workplace caused her injury or constituted a risk of injury to the claimant. Therefore, the commission erred by concluding that the injury was compensable. City of Norfolk v. Vaughan, 1995 Va. App. LEXIS 561 (Va. Ct. App. July 5, 1995).

National Guard member killed returning for second day of inactive duty. —

Dependents of enlisted member of National Guard killed in traffic accident on public highway when returning to base from home for second day of inactive duty training could not recover workers’ compensation death benefits because deceased was not performing any task of employment at time of his death and therefore death did not arise out of and in the course of employment. Carlson v. Department of Military Affairs, 26 Va. App. 600, 496 S.E.2d 107, 1998 Va. App. LEXIS 91 (1998).

Chilblains. —

Employee’s chilblains resulting from a single exposure to cold temperature on a definite occasion during the performance of a specific piece of work was an “identifiable incident,” and therefore, a compensable injury by accident. Southern Express v. Green, 257 Va. 181 , 509 S.E.2d 836, 1999 Va. LEXIS 9 (1999).

Bending down to lace work boots. —

Where evidence showed that claimant did not engage in any significant exertion—his action of bending down to lace his work boots did not involve any awkward position, nor did any condition peculiar to his workplace cause his injury, and although claimant was performing a work-related activity when the injury occurred, no condition of the workplace and additional exertion necessitated by work, aside from the usual act of bending to lace his boots and straightening back up, caused the injury, the appellate court was unable to find that claimant proved as a matter of law that his injury arose out of his employment. Cobb v. Westmoreland Coal Co., 1995 Va. App. LEXIS 120 (Va. Ct. App. Feb. 14, 1995).

Claim failed. —

Where a former employee allegedly was fired in retaliation for reporting illegal pharmacy practices, had the employee pled that the employee’s heart attack was the final result of repetitive stress or cumulative events, as opposed to a discrete event, the employee’s personal injury claim may not have been barred by the Virginia Workers’ Compensation Act, but the employee’s own complaint did not support this argument; also, the employee’s allegation was insufficient to state a claim. Weidman v. Exxon Mobil Corp., 776 F.3d 214, 2015 U.S. App. LEXIS 276 (4th Cir. 2015), cert. denied, 576 U.S. 1036, 135 S. Ct. 2868, 192 L. Ed. 2d 897, 2015 U.S. LEXIS 4167 (2015), dismissed, No. 1:13-cv-501, 2016 U.S. Dist. LEXIS 98059 (E.D. Va. July 26, 2016).

M.Evidence and Procedure.

Burden of proof. —

In order to carry his burden of proving an injury by accident, a claimant must prove that the cause of his injury was an identifiable incident or sudden precipitating event and that it resulted in an obvious sudden mechanical or structural change in the body. Morris v. Morris, 238 Va. 578 , 385 S.E.2d 858, 6 Va. Law Rep. 756, 1989 Va. LEXIS 175 (1989).

Claimant must prove causal connection between accident and disability which he claims resulted therefrom. This proof must go beyond conjecture. If the evidence shows that it is just as probable that the disability resulted from a cause which is not compensable, as it is that it resulted from one which is compensable, the claimant has not sustained the burden of proof. Southall v. Eldridge Reams, Inc., 198 Va. 545 , 95 S.E.2d 145, 1956 Va. LEXIS 240 (1956).

Claimant must prove causal connection between accident and disability, etc. — Workers’ Compensation Commission erred in granting an EMT benefits for head and brain injuries that resulted after he lost consciousness while assisting with a lumbar puncture procedure because the EMT failed to testify that the light-headedness occurred during each of the 6-12 times he had assisted in a lumbar puncture procedure, the medical records relied upon by the Commission, at most, established a correlation between the EMT’s observation of the procedure and his loss of consciousness, the medical records did not establish what caused the episode, and no credible evidence existed in the record to support a finding that the EMT’s injuries were caused by a non-physical or emotional factor. Lynchburg Gen. Hosp. v. Foster, 2018 Va. App. LEXIS 90 (Va. Ct. App. Apr. 10, 2018).

But proof beyond a reasonable doubt is not required. —

While the burden is on the claimant to prove causal connection between the accident and death, proof beyond a reasonable doubt is not required, a preponderance of the evidence being all that is necessary. Rogers v. Williams, 196 Va. 39 , 82 S.E.2d 601, 1954 Va. LEXIS 198 (1954).

Finding of Commission may be based on circumstantial evidence. —

A finding by the Commission that an injury is compensable may be established by circumstantial evidence, and in some cases claims are presumed to be within the meaning of the Act. Sullivan v. Suffolk Peanut Co., 171 Va. 439 , 199 S.E. 504 , 1938 Va. LEXIS 296 (1938).

And court may presume that accident was compensable. —

Where an employee is found dead as the 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 not 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. Sullivan v. Suffolk Peanut Co., 171 Va. 439 , 199 S.E. 504 , 1938 Va. LEXIS 296 (1938); Southern Motor Lines Co. v. Alvis, 200 Va. 168 , 104 S.E.2d 735, 1958 Va. LEXIS 172 (1958).

Presumption held not applicable. Butler v. Nolde Bros., 189 Va. 932 , 55 S.E.2d 36, 1949 Va. LEXIS 229 (1949).

In absence of contrary or conflicting evidence. —

In workmen’s (now workers’) compensation cases, where liability is imposed on the employer on presumptive evidence to the effect that the death arose out of the employment, there must be an absence of contrary or conflicting evidence on the point and the circumstances which form the basis of the presumption must be of such strength that the only rational inference to be drawn is that death arose out of and in the course of the employment. Hopson v. Hungerford Coal Co., 187 Va. 299 , 46 S.E.2d 392, 1948 Va. LEXIS 223 (1948).

But burden of proof is on claimant. —

In cases under the Workmen’s (now Workers’) Compensation Act, the burden of supplying evidence from which the inference can be legitimately drawn that the injury arose out of and in the course of the employment, rests upon the claimant. Sullivan v. Suffolk Peanut Co., 171 Va. 439 , 199 S.E. 504 , 1938 Va. LEXIS 296 (1938).

The burden is upon the claimant to prove by a preponderance of the evidence that the accident arose out of and in the course of his employment. Norfolk & Wash. Steamboat Co. v. Holladay, 174 Va. 152 , 5 S.E.2d 486, 1939 Va. LEXIS 149 (1939); Conner v. Bragg, 203 Va. 204 , 123 S.E.2d 393, 1962 Va. LEXIS 129 (1962); Baggett Transp. Co. v. Dillon, 219 Va. 633 , 248 S.E.2d 819, 1978 Va. LEXIS 224 (1978); Hercules, Inc. v. Stump, 2 Va. App. 77, 341 S.E.2d 394, 1986 Va. App. LEXIS 244 (1986).

The claimant bears the burden of proof in establishing the fact that his injuries resulted from an accident. That his disability may be due to, or aggravated by, accidental injury is not sufficient. There must be more than a possibility or a mere speculation. Humphries v. Newport News Shipbuilding & Dry Dock Co., 183 Va. 466 , 32 S.E.2d 689, 1945 Va. LEXIS 193 (1945).

The claimant has the burden to establish a causal relationship between an industrial accident and injury and when the claimant, who is in a position of being able to explain the occurrence, fails to present evidence which establishes that the injury arose out of the employment the claim for compensation must be denied. Memorial Hosp. v. Hairston, 2 Va. App. 677, 347 S.E.2d 527, 3 Va. Law Rep. 281, 1986 Va. App. LEXIS 320 (1986).

Where the commission reviewed all available medical records and a preponderance of the evidence did not establish that a worker’s numb foot was caused by a work-related accident, the worker did not sustain her burden of proving that the numbness arose out of or in the course of her employment. Milbourne-Bush v. Gateway, Inc., 2003 Va. App. LEXIS 225 (Va. Ct. App. Apr. 15, 2003).

Judicial review regarding injury by accident. —

Unless an appellate court can say as a matter of law that a workers’ compensation claimant sustained the claimant’s burden of proving an “injury by accident,” the findings of the Virginia Workers’ Compensation Commission to the contrary on that issue are binding and conclusive upon the appellate court. Helfer v. Va. Dep't of Rehabilitative Servs., 2003 Va. App. LEXIS 224 (Va. Ct. App. Apr. 15, 2003).

Weight afforded treating physician testimony. —

While the opinion of the treating physician is entitled to great weight, the law does not require that the treating physician’s opinion be accepted over that of others. Quant v. Salvation Army, Inc., 1995 Va. App. LEXIS 583 (Va. Ct. App. July 18, 1995).

Payments and filing of reports did not toll statute of limitations. —

When the first report of accident is filed, and when, there is no evidence of fraud or act by employer reasonably calculated to induce the employee from filing a claim with the commission, voluntary payments of compensation benefits and filing of medical reports and records do not operate to toll the limitation. Barnes v. B T R Dunlop, Inc., 1994 Va. App. LEXIS 512 (Va. Ct. App. July 26, 1994).

Where claimant presented no evidence of any identifiable incident occurring on that day resulting in an obvious sudden mechanical or structural change in his body, the fact-finder could only speculate whether claimant’s hernia arose from a work-related cause, a cause entirely outside the employment, or a combination of causes. Accordingly, the decision of the Commission was reversed, its award is vacated, and final judgment was entered for employer. P & M Constr. Co. v. Heims, No. 0277-85 (Ct. of Appeals Dec. 13, 1985).

When injuries may have resulted from one of two causes, for one of which the employer is responsible and for the other of which it is not responsible, the claimant must fail if his evidence does not show that the damage was produced by the former cause. And he must also fail if it is just as probable that damages were caused by the one as by the other, since claimant is bound to make out his case by the preponderance of evidence. A.N. Campbell & Co. v. Messenger, 171 Va. 374 , 199 S.E. 511 , 1938 Va. LEXIS 287 (1938); Hopson v. Hungerford Coal Co., 187 Va. 299 , 46 S.E.2d 393 (1948).

“Just as probable” rule means merely that “a claimant must prove his case by a preponderance of the evidence.” Smith v. Fieldcrest Mills, Inc., 224 Va. 24 , 294 S.E.2d 805, 1982 Va. LEXIS 267 (1982).

The “just as probable” rule denies compensation for failure of a claimant to sustain the burden of proof where it is just as probable that the disability resulted from a work-related cause as from a non-work-related cause. Shelton v. Ennis Bus. Forms, Inc., 1 Va. App. 53, 334 S.E.2d 297, 1985 Va. App. LEXIS 59 (1985).

Proof of the causal connection between the industrial accident and the disabling condition underlying the employee’s application must go beyond the realm of conjecture. If it is just as likely that the disabling condition resulted from a cause which is not compensable as it is that it resulted from an accident covered by the Workers’ Compensation Act, the employee has failed to establish the requisite causal connection. Possibility is not enough. Evidence that disability “may be due” to an industrial accident is not sufficient. Watts v. Woodrow Wilson Rehabilitation Center, No. 0495-85 (Ct. of Appeals Dec. 10, 1985); Richmond King, Inc. v. Poling, No. 0816-85 (Ct. of Appeals Jan. 8, 1986).

“Two causes” rule refers to the case where a disability has two causes: one related to the employment and one unrelated. Under this rule, full benefits will be allowed when it is shown that the employment is a contributing factor to the disability. Smith v. Fieldcrest Mills, Inc., 224 Va. 24 , 294 S.E.2d 805, 1982 Va. LEXIS 267 (1982).

Under the “two causes” rule if a disability has two causes, one related to employment and one unrelated, benefits are allowed. Shelton v. Ennis Bus. Forms, Inc., 1 Va. App. 53, 334 S.E.2d 297, 1985 Va. App. LEXIS 59 (1985).

Questions of law and fact. —

Whether under a given state of facts and circumstances an employee has suffered an accident, within the meaning of the Workmen’s (now Workers’) Compensation Act, is a mixed question of law and fact, which is properly reviewable by the Supreme Court. Norfolk & Wash. Steamboat Co. v. Holladay, 174 Va. 152 , 5 S.E.2d 486, 1939 Va. LEXIS 149 (1939); Derby v. Swift & Co., 188 Va. 336 , 49 S.E.2d 417, 1948 Va. LEXIS 168 (1948); Baggett Transp. Co. v. Dillon, 219 Va. 633 , 248 S.E.2d 819, 1978 Va. LEXIS 224 (1978).

In action to recover for the wrongful death of an employee in a coal mine, whether decedent died as a result of gradual inhalation of poisonous gas over a period of from eight days or more, or whether his death was caused by the sudden inhalation of a quantity of gas at the particular time and on the particular occasion of his death, was a question of fact for the jury. Blue Diamond Coal Co. v. Aistrop, 183 Va. 23 , 31 S.E.2d 297, 1944 Va. LEXIS 126 (1944) (see also Blue Diamond Coal Co. v. Aistrop, 181 Va. 287 , 24 S.E.2d 546 (1943)).

Medical evidence not conclusive. —

Medical evidence is not necessarily conclusive in a proceeding before the Virginia Workers’ Compensation Commission, but is subject to the Commission’s consideration and weighing. Helfer v. Va. Dep't of Rehabilitative Servs., 2003 Va. App. LEXIS 224 (Va. Ct. App. Apr. 15, 2003).

Medical records did not support claim. —

Virginia Workers’ Compensation Commission did not err in finding that the claimant did not suffer a compensable injury by accident to his left ear, nose, face, or neck because the Commission considered the claimant’s medical records and found that they did not support his testimony about any neck, nose, left ear, or facial injuries as his initial post-accident medical records from the emergency room did not indicate any complaints of such injuries. Sibai v. Sterling Jewelers, 2020 Va. App. LEXIS 316 (Va. Ct. App. Dec. 29, 2020).

Coronary occlusion following accidental injury. —

Where an employee suffered an injury to his back while lifting a board to a scaffold, and five days later suffered a coronary occlusion and died a month thereafter of heart trouble, the finding of the Commission that there was no causal connection between the death and the injury was one of fact, based on credible evidence, and was therefore binding on appeal. Williams v. Fuqua, 199 Va. 709 , 101 S.E.2d 562, 1958 Va. LEXIS 116 (1958).

Denial of compensation not res judicata in subsequent action. —

A denial of an award of compensation, on the ground that the injury did not arise out of and in the course of the employment, is not res judicata in the employee’s subsequent action at law to recover damages of the employer. Griffith v. Raven Red Ash Coal Co., 179 Va. 790 , 20 S.E.2d 530, 1942 Va. LEXIS 275 (1942).

Commission erred in deciding that employee had to prove significant exertion caused injury; employee’s evidence proved that the causative danger had its origin in a risk connected with the employment and flowed from that source as a rational consequence. That the activity was usual, did not require exertion, and was not foreseen or expected, was irrelevant. Grove v. Allied Signal, 15 Va. App. 17, 421 S.E.2d 32, 9 Va. Law Rep. 162, 1992 Va. App. LEXIS 230 (1992).

Where the commission was confronted with the conflicting accounts of how and when claimant’s knee injury was sustained, it was for the commission to decide the weight to be given these accounts and the credibility of the witnesses. The commission may consider medical histories as party admissions and as impeachment of the claimant’s testimony. Bowers v. TRW, Inc., 1996 Va. App. LEXIS 272 (Va. Ct. App. Apr. 16, 1996).

Proffer should have been permitted. —

Deputy commissioner erroneously refused to allow claimant to proffer evidence that purportedly would have shown that employer, at the time of claimant’s injury, was operating his business at the same volume that he had in 1986 and 1987, and thereby within the statutory definition of employer, at which time he regularly employed three or more employees. The claimant had the right to proffer her evidence, or avouch for the record what her evidence would have been because, without a proffer, it could not be ascertained on appeal whether the evidence she sought to introduce was relevant and material. Smith v. Mike Hylton t/a M.H. Stables, 14 Va. App. 354, 416 S.E.2d 712, 8 Va. Law Rep. 2859, 1992 Va. App. LEXIS 128 (1992).

Commission review on record proper. —

Claimant’s third party recovery created a change in the conditions under which he was awarded compensation; it affected his right to compensation and the amount and duration of it. Thus, the Workers’ Compensation Commission properly reviewed such change on record, without additional evidence and without oral argument. Eghbal v. Boston Coach Corp., 23 Va. App. 634, 478 S.E.2d 732, 1996 Va. App. LEXIS 787 (1996).

Appellate review. —

While the fund did not explicitly argue in its written statement that a church was not the claimant’s employer, it was the only logical conclusion one could draw from the fund’s argument, and there was sufficient argument to place the issue before the Workers’ Compensation Commission for determination; thus, it was unreasonable for the Commission to have found that the fund waived its argument that the church was not the claimant’s employer. Uninsured Employer's Fund v. Jeffreys, 2016 Va. App. LEXIS 136 (Va. Ct. App. Apr. 26, 2016).

Sufficiency of evidence. —

Claimant established a compensable injury by accident because the claimant testified that, when the claimant lifted a trunk from a truck at work, the claimant felt a sharp pain in the claimant’s lower back. Furthermore, the inconsistencies in the claimant’s descriptions of the accident were minor. Smith v. Dominion Tech. Solutions, 2015 Va. App. LEXIS 24 (Va. Ct. App. Jan. 27, 2015).

CIRCUIT COURT OPINIONS

Personal acts of other employees. —

Defendants’ demurrers to three women employees’ claims for assault and battery, intentional infliction of emotional distress, and negligent retention, against two male employees and their employer were overruled as the claims were not barred by the exclusive remedy provisions of the Virginia Workers’ Compensation Act, § 65.2-101 et seq., since the men admitted that their purpose was to get the women to succumb to their sexual advances; the assaults and other actions were of a personal nature, directed at the women as women, rather than as employees, and did not arise out of their employment, and the injuries were not compensable injuries by accident within the meaning of the Act. Padilla v. Silver Diner, 63 Va. Cir. 50, 2003 Va. Cir. LEXIS 169 (Virginia Beach June 10, 2003).

Alleged assault by a manager on an employee was directed at the employee as an employee in that the manager was expressing dissatisfaction with quality and work performance of employees. The manager’s actions were in furtherance of the employer’s business to the extent that the actions involved the manager’s management style in addressing what the manager perceived as the shortcomings of employees and the inability of the employee to perform a task as the manager directed. Morgan v. Brophy, 107 Va. Cir. 164, 2021 Va. Cir. LEXIS 93 (Chesapeake Jan. 28, 2021).

Exclusive remedy. —

Employer’s plea in bar to employee’s complaint alleging claims for negligence, negligent misrepresentation, intentional tort, and fraudulent misrepresentation related to the employee’s sickness that occurred after the employer informed the employee the employer’s office building would be fumigated, was granted, as the employee’s claim for injury resulting from chemical exposure was an injury by accident that arose out of and in the course of her employment with the employer; accordingly, the employee’s sole and exclusive remedy was under the Virginia Workers’ Compensation Act, § 65.2-101 et seq., since that Act provided, in § 65.2-307 , that an employee’s sole and exclusive remedy under those circumstances was under the Act. Murhutta v. Planning Sys., 61 Va. Cir. 340, 2003 Va. Cir. LEXIS 53 (Fairfax County Mar. 19, 2003).

Implied contract for hire established. —

Where a pre-existing relationship between a subcontractor and his son created an expectation that the son was to be compensated for the work he did, the son was his father’s statutory employee under an implied contract of hire on the day of injury; thus, he was barred from bringing a personal injury claim against the contractor, as his exclusive remedy was provided by the Virginia Workers’ Compensation Act. Goff v. Robert Hauser Homes, Inc., 63 Va. Cir. 297, 2003 Va. Cir. LEXIS 355 (Charlottesville Oct. 15, 2003).

Assault personal to employee. —

Employee’s claims against a general manager and an employer were not barred by the exclusivity provision because no conditions under which the employer required the employee’s work to be done contributed to the injury; the manager’s decision to take his frustration out on a fellow employee by assaulting her was entirely his own, and prior testimony that the manager chose to vent his frustration at the employee further demonstrated that the assault was directed at the employee personally. Morgan v. Brophy, 94 Va. Cir. 301, 2016 Va. Cir. LEXIS 147 (Chesapeake Sept. 27, 2016).

NOTES FROM THE WORKERS’ COMPENSATION COMMISSION

Income to Be Included:

Employee working to repay monetary debt to employer considered to work under a contract of hire; determination of contract of hire based on whether employee works in exchange for something of value, such as forgiveness of monetary debt. Bostic v. Brenda Smith Farms, Inc., VWC File No. 211-48-59 (June 19, 2003).

Claimant’s average weekly wage should not include allowance for t-shirts provided by employer because claimant did not derive economic benefit from t-shirts, when evidence showed that claimant more often than not wore other, non-employer t-shirts to work. Dodson v. Kloke Transfer, VWC File No. 204-19-67 (June 12, 2003).

Whether or not in the form of money, all compensation received by the worker in addition to his regular wage must be considered in computing his average weekly wage, Examples:.

Overtime —.Smith v. Standard Oil, 22 O.I.C. 244 (1940).

Meals —.Harless v. Rutherford Freight Lines, Inc., 22 O.I.C. 119 (1940).

Meals —.Harless v. Rutherford Freight Lines, Inc., 22 O.I.C. 119 (1940).

Board —.Baker v. Jones, 3 O.I.C. 629 (1921); Smith v. Hotel Burton, 9 O.I.C. 283 (1927).

Expense Account —.Church v. Motor Freight Corp., 18 O.I.C. 3.

Tips —.Hairston v. Commonwealth Club, 18 O.I.C. 271 (1936); Hinshaw v. Richmond Hotels, 20 O.I.C. 345 (1938); Chesapeake Bay Seafood House v. Clements, 14 Va. App. 143, 415 S.E.2d 864, 8 Va. Law Rep. 2470, 1992 Va. App. LEXIS 90 (1992).

Vacation Pay —.Treadway v. Blue Diamond Coal Co., 26 O.I.C. 248 (1944); Cooke v. Lawrence Motor Co., Inc., 45 O.I.C. 44 (1963).

A bonus may be considered in determining average weekly wage where the payment was made pursuant to an employee-employer relationship. Nachod v. Public Storage Space, Inc., 62 O.I.C. 334 (1983); Treadway v. Blue Diamond Coal Co., 26 O.I.C. 248 (1944).

Perquisites:

In determining the value of perquisites, the deputy commissioner was entitled to rely on the claimant’s testimony. Adams v. Commonwealth of Va./Dept of Conservation & Recreation, VWC File 205-98-35 (Jan. 24, 2006).

On June 9, 2005, the Commission rescinded the schedule of perquisites in favor of evidence of the value of perquisites to be submitted on a case by case basis.

Income Not Included:

Retirement Income:

Retirement benefits are not earnings for the purpose of establishing an average weekly wage. They do not represent earnings from employment. If the decedent had been employed at the time of his death, retirement income would not have been includable for purposes of establishing an average weekly wage. Newton v. Fairfax County Police Dept., 77 O.W.C. 183 (1998).

Rental Income:

Claimant’s real estate ownership and rental income do not pertain to earned income under the Act. Vaught v. Gen. Elec. Co., 52 O.I.C. 271 (1970).

Savings and Profit Sharing:

Interest in savings and profit sharing plan not included as part of the average weekly wage. Kistler v. McDonald’s Corporation, 58 O.I.C. 205 (1979) (see also Boyd v. Air Conditioning Supplies, 64 O.I.C. 56 (1985) (profit sharing not included)).

Federal tax law allows and requires an owner-employee of an S-corporation to be paid wages for services rendered to the corporation, which wages are reported on a W-2 tax form. Any remaining net earnings of the corporation are reported on a “K-1” tax form, whether or not such earnings are actually distributed. K-1 earnings should not be included in calculating a claimant’s average weekly wage, because the earnings of an S-corporation depend not only upon the efforts of the owners, but also upon the contribution of other employees and the utilization of capital. Thus, K-1 earnings are an inappropriate measure of an owner-employee’s average weekly wage. The Commission held that a claimant’s W-2 tax form reasonably reflected his wages, while the additional K-1 income reflected the value of his capital investment in the business. Davis v. Davis Auto Service, 78 O.W.C. 25 (1999).

Fringe Benefits:

The value of the claimant’s per diem may be included in the calculation of the claimant’s average weekly wage where it was paid regardless of the actual expenses and the employee was not required to account for how it was spent, unless the evidence shows that actual expenses were equivalent to the allowance. Smith v. McKee Foods Corporation, JCN VA02000010291 (Oct. 15, 2012).

Value of employer’s contributions to Union Health and Welfare Fund should not be included in the employee’s average weekly wage. Hillyard v. Giant Food, Inc., 60 O.I.C. 206 (1981).

The premium for health and hospitalization insurance paid by an employer is neither wages, allowances or payment in lieu of wages and therefore is not included in calculating an employee’s average weekly wage. Gajan v. Bradlick Company, 4 Va. App. 213, 355 S.E.2d 899 (1987); Boggs v. Equitable Construction Co., Inc., 59 O.I.C. 23 (1980), (fringe benefits for medical and life insurance not included); Boggs v. Equitable Construction Company, 60 O.I.C. 45 (1981), (employer paid Blue Cross/Blue Shield and term life insurance payments not included).

A per diem for meals based on hours away from home rather than actual expenses was included in computing the average weekly wage of a flight attendant because it was an economic gain to the employee as part of the employment contract and was paid in lieu of wages. A fringe benefit such as reduced airfare for relative may not be included in the computation of the average weekly wage. Seabrook v. American Airlines, Inc., 68 O.I.C. 3 (1989). (Affirmed by Court of Appeals on 3/20/90).

Computing Average Weekly Wage:

General:

Employee’s average weekly wage correctly based on 52-week pre-injury earnings, despite intention to retire shortly after accident; employee, a circus performer, informed employer of intention to seek other employment at end of current contract period, but suffered workplace injury before contract expired; Commission found that average weekly wage properly based on pre-injury earnings, despite fact she may have decided to retire, as injury, and not voluntary retirement, diminished ability to earn pre-injury wages. Krochkina v. Ringling Bros. Barnum & Bailey Combined, VWC File No. 211-46-02 (Jan. 20, 2004).

The purpose “for calculating the average weekly wage is to approximate the economic loss suffered by an employee or his beneficiaries.” To achieve this purpose, Code § 65.2-101 “gives the Commission discretion in the methods to be used to determine the average weekly wage the employee was earning in the employment in which he was working at the time of the injury.” Nelson v. Adecco Employment Service, 78 O.W.C. 263 (1999).

Where the claimant was employed in three separate jobs by the employer, and received only one paycheck for her aggregated earnings in all or any of the jobs, her average weekly wage is calculated from the sum of all earnings with that employer, despite the fact that she was performing only one of the jobs during the summer when she was injured. Watson v. City of Danville School Board, 78 O.W.C. 94 (1999).

The credible testimony of the claimant is sufficient to establish his average weekly wage where the employer failed to produce payroll records despite a Commission request. Gibson v. Conley and F. Richard Wilton, Jr., Inc., 74 O.W.C. 132 (1995).

The party arguing that actual wages do not accurately reflect average earnings has the burden to present wage data of other workers similarly employed. Honorkiewicz v. Capital Masonry Corporation, 74 O.W.C. 104 (1995).

Even though the parties entered into an agreement regarding average weekly wage and an award was entered, the Commission has jurisdiction to consider whether the average weekly wage should be amended because the claimant was illegally paid at a rate lower than that required by law. The burden is on the claimant to show by clear and convincing evidence that he was paid at less than the legal rate. Curtis v. Allard Trucking Company, 74 O.W.C. 208 (1995).

An employee will not be bound by his allegation of a lower average weekly wage when pay records establish a higher figure. Avrine v. Gulliver’s Movers, Inc., 71 O.W.C. 8 (1992).

The Commission declined to amend the claimant’s average weekly wage based on allegations that the employer violated the Federal Fair Labor Standards Act and did not pay him the overtime that was due. The Commission did leave open a subsequent application by the claimant to amend, if his average weekly wage was increased as a result of a Fair Labor Standards action the claimant was litigating in another forum. O’Neill v. Infrared Testing, Inc., 76 O.W.C. 245 (1997).

Average weekly wage is the average dollar weekly wage. Beauchamp v. Cummins & Hart, 59 O.I.C. 16 (1980).

The average weekly wage is determined on the date of the injury and not on the date of disability. Therefore, the compensation rate for subsequent periods of disability would remain constant without regard to any post-accident wage increase received by the employee. Green v. Nottoway Correctional Center, 13 Va. App. 301, 411 S.E.2d 231, 8 Va. Law Rep. 1450, 1991 Va. App. LEXIS 299 (1991).

The purpose of weekly death benefits, based on the decedent’s average weekly wage, is to replace the wages lost to the dependents as a result of the death. No indemnity benefits should be awarded if the decedent had no income for the 52 weeks preceding the communication of the diagnosis of an occupational heart disease. Newton v. Fairfax County Police Dept., 77 O.W.C. 183 (1998).

Where there was a complete absence of earnings during the 52 weeks preceding death or communication of a diagnosis of an occupational heart disease, there are no earnings upon which an average weekly wage can be established to award weekly compensation benefits to statutory beneficiaries. The Commissioner distinguished Roller v. Basic Construction Company, 238 Va. 321 , 384 S.E.2d 323 (1989), as a case applying a statutory amendment to Code § 65.2-406 (C) pertinent only to asbestosis claims. Newton v. Fairfax County Police Dept., 77 O.W.C. 183 (1998).

Where a claimant worked for the employer for seven months, it was appropriate to use the wages earned during this time period to formulate a fair average weekly wage. Wages from previous employment or benefits paid under the Davis/Baker Act cannot be considered. Jespersen v. Atlantic Welding & Fabricating, Inc., 73 O.W.C. 18 (1994).

The determination of the average weekly wage is designed to approximate the actual lost earnings of the employee, and a training wage should not be included in the calculation. Berry v. Hoffman Beverage Co., Inc., 75 O.W.C. 283 (1996).

When a claimant is promoted prior to the work injury, the average weekly wage is based on the higher earnings in the new position. Fleshman v. Checkers Check Cashing, 74 O.W.C. 148 (1995).

Where period of claimant’s employment has been too short to serve as basis for equitable determination of his average weekly wage, the wages of three other employees doing same grade and character of work may be used. Childress v. Panther Coal Co., Inc., 22 O.I.C. 190 (1940).

Minimum compensation rate applicable where no earnings yet in commission sales work. Richards v. Crime Control, Inc., 54 O.I.C. 314 (1972).

Average weekly wage determined equitably where decedent had been paid varying small amounts for prior occasional jobs and was killed on first day he enjoyed “employee” status. Hogan v. C.E. Kidd Lumber Company, 60 O.I.C. 208 (1981).

In determining the average weekly wage for a circus performer, it was appropriate to use the earnings attributed to periods of work covered by the contract rather than individual days worked. Hernandez v. Ringling Brothers/Barnum and Bailey Combined Shows Inc., 73 O.W.C. 20 (1994).

The claimant worked for the employer only four weeks before his work accident. He alleged that his work hours were reduced because of inclimate weather, and evidence showed that he had been hired to perform 40 hours of work each week, with some overtime. The Commission held that the average weekly wage should be determined by multiplying the claimant’s hourly rate times 40 hours per week, which was consistent with the intent of the parties at the time of hire. Johnson v. Webb Mechanical, Inc., 76 O.W.C. 165 (1997).

The claimant was employed by Dinwiddie County School Board in two separate jobs, as a teacher’s aide and as a school bus driver. She worked for separate departments and separate supervisors, and was paid from separate bookkeeping accounts. Her primary mission as a teacher’s aide was to help students with their lessons and to assist the students with their daily activities at school. Her primary mission as a school bus driver was to provide transportation. The claimant argued that her mission in both employments was to help students. The Commission held that the “primary” mission cannot be so broadly defined so as to constitute similar employment, but found that wages should still be combined because both employments were with the same employer. Cole v. Dinwiddie County School Board, 76 O.W.C. 480 (1997).

In the absence of evidence to the contrary, a normal work week in the construction industry is forty hours. Maywalt v. Virginia Construction Company, 63 O.I.C. 229 (1984).

The claimant had a sporadic work history with the temporary agency and did not follow through with any of her three previous assignments, all of which promised 40-hour week positions. Instead, she either left the position, was removed from the position, or did not show up for work. The Commission held that the claimant’s average weekly wage should be based upon her actual earnings, that these earnings most nearly approximated the amount she would be earning but for her work accident, and to find that the claimant was entitled to an amount equivalent to what she would have earned had she worked a 40-hour week would be too speculative on the facts here. Nelson v. Adecco Employment Service, 78 O.W.C. 263 (1999).

The average weekly wage for an employee who contracts mesothelioma is determined by the wages earned during the fifty-two weeks in which he was last actually exposed to asbestos rather than his average weekly wage on the date of the communication and diagnosis. C & P Tel. Co. v. Williams, 10 Va. App. 516, 392 S.E.2d 846, 6 Va. Law Rep. 2775, 1990 Va. App. LEXIS 119 (1990).

The employer is entitled to a credit for the claimant’s earnings in other pre-injury employment which continued after the industrial accident. Compensation benefits are based on two-thirds of this partial wage loss even though this rate would entitle the claimant to greater compensation benefits than his actual Guard earnings. Wade v. Virginia Military Affairs, 70 O.I.C. 1 (1991).

Labor Management Duties:

Payments made to an employee by a union for carrying out required labor management duties are not part of the employee/employer contract for performance of services and, therefore, not to be included in computing the average weekly wage. Goad v. Lynchburg Foundry Company, 15 Va. App. 710, 427 S.E. 215 (1993); 71 O.W.C. 5 (1992).

Labor management duties, including mediation of disputes, is dissimilar work from that of a shell-machine operator and, therefore not included in computing the average weekly wage. Goad v. Lynchburg Foundry Company, 15 Va. App. 710, 427 S.E. 215 (1993); 71 O.W.C. 5 (1992).

Seasonal Workers:

The average weekly wage of a seasonal worker is based on the number of weeks actually worked if the employee continues actively to seek employment. However, the average of earnings over a fifty-two week period will be used if the employee limits the number of weeks worked in order to qualify for Social Security benefits. Yager v. Noah P. Turner Landscaping, Inc., 68 O.I.C. 7 (1989).

The average weekly wage of a school bus driver, who worked only 42.2 weeks in a year and did not work during the remaining weeks of the year, should be calculated by dividing her annual income by 52 weeks. Otherwise, the compensation rate based on earnings over 42.2 weeks would exceed her income from working as a school bus driver over 12 months. Such a result would not approximate the claimant’s loss of income from her job and would unfairly award her higher earnings than a comparable [permanent] co-worker who suffered a similar injury. Scott v. City of Virginia Beach School Board, 78 O.W.C. 199 (1999).

Code provision for the use of “other method of computing average weekly wage” was used in determining wages of a part-time seasonal worker killed at the commencement of the peak employment period. Ennis v. Virginia Tank Lines, 64 O.I.C. 130 (1985).

Appropriate to use earnings of like employee for determining a seasonal worker’s average weekly wage. Brown v. American Tobacco Co., 50 O.I.C. 50 (1968).

Where an injury results from a second dissimilar seasonal position causing incapacity for the claimant’s primary employment, the Commission has the discretion to determine an average weekly wage based on the actual earnings from the seasonal employment. The average weekly wage is not zero merely because incapacity occurred during a period when the seasonal work is normally unavailable. Hinkle v. City of Covington, 65 O.I.C. 28 (1986).

Sole Proprietor:

The average weekly wage of a claimant, who after his injury started a sole proprietorship, is based on the net taxable income reported by the business for Federal Income Tax purposes. This includes allowable expenses (depreciation and interest) as well as any draw or salary paid to or on behalf of the claimant. Holcombe v. Meredith Construction Company, Inc., 73 O.W.C. 31 (1994). [Note: this overrules Semones v. The New Jersey Zinc Co., 68 O.I.C. (1989)].

The claimant’s wages are determined from his profit and loss statement which would include an allowance for depreciation without regard to whether a specific fund was established. A concurring opinion noted several methods for calculating depreciation under federal law and limited the exclusion for depreciation to the straight line procedure. Accelerated depreciation would not be permitted. Holcombe v. Meredith Construction Company, Inc., 73 O.W.C. 31 (1994). [Note: this overrules Semones v. The New Jersey Zinc Co., 68 O.I.C. (1989)].

Waitress:

The amount on which the employee, a waitress, paid taxes constituted the most accurate approximation of her average week earnings. Chesapeake Bay Seafood House v. Clements, 14 Va. App. 143, 415 S.Ed.2d 864 (1992).

Similar Employment:

It is immaterial whether the mistake in the average weekly wage is mutual or unilateral. The incorrect average weekly wage was noted on the Pre-Hearing Statement and the average weekly wage did not resemble either the wages earned or the combined wages from similar employment. Both employments were substantially similar and should be combined. Smith v. Health Horizons, JCN VA02000011358 (Sept. 22, 2014).

Workers’ compensation is designed to place the economic burden of work-related injuries on industry and, more specifically, the employer. The rationale that the costs of work-related injuries should not expand beyond “similar employment” is to prevent the costs from being borne out of proportion to an industry’s payroll. Also, a low risk industry should not bear the costs of a high risk injury when the employer is not a part of the high risk injury. Cole v. Dinwiddie County School Board, 76 O.W.C. 480 (1997), aff’d, 258 Va. 430 , 520 S.E.2d 650 (1999).

Where an employee is performing similar services for more than one employer his combined earnings are used in computing his average weekly wage, whether the employments are joint or concurrent. Hawthorne v. Thalhimer Bros., Inc., 32 O.I.C. 35 (1950); O’Neal v. Lexington Telephone Co., 24 O.I.C. 708 (1942); Cottrell v. Hawthorne Aviation, Inc., 56 O.I.C. 71 (1975) (affd. on review).

Where the claimant has two jobs with the same employer, the burden on the employer is not out of proportion to either its payroll or the risks of the industry. The exposure is directly related to the employer’s payroll and the number of its employees, without regard to the types of jobs being performed. The employer is not assuming a risk of wages being paid by another employer or the risks of another industry. Since the employer is the same, the wages earned in both jobs should be combined. Cole v. Dinwiddie County School Board, 76 O.W.C. 480 (1997).

The employee was hired to perform repair work on used cars for resale, but he was also required to perform substantial plumbing work for the employer. The employee also worked as a plumbing and heating mechanic for another employer, and he was required in that employment to perform repair work on company vehicles. Where there is a significant overlap of duties, the employee may include earnings from both employers to calculate his average weekly wage. Edmonds v. Creedle Sales Co., Inc., 75 O.W.C. 160 (1996).

The wages of an employee may be combined with income earned as an independent contractor for the purpose of determining the average weekly wage if the nature of the work is similar. Metropolitan Cleaning Corp. v. Crawley, 14 Va. App. 261, 416 S.E.2d 35, 8 Va. Law Rep. 2570, 1992 Va. App. LEXIS 112 (1992).

Where all of the claimant’s job duties and skills in one job are utilized in a second job with a wider scope of employment, the Commission focuses on the “primary mission” of the employee in both jobs. This analysis provides a more rational basis for determining whether two employments are so related as to conclude they are substantially similar. The claimant performed computer data entry services in both of the positions she sought to combine for purposes of her average weekly wage. However, the Commission found that the primary mission of her work for the employer was abstracting personnel files, while the primary mission of her work for the second employer was assisting in the commercial shipping of packages. These jobs were not substantially similar, and they were not combined. Tate v. United Parcel Service of America, VWC File No. 198-42-59 (July 12, 2002).

The Commission found the claimant’s work for the employer as a part-time counselor of abused and neglected children, and her full-time work as a juvenile probation and parole officer were substantially similar, and her weekly wages in each position were combined to determine her pre-injury average weekly wage. The claimant performed many of the same duties in each employment, and the primary mission of each job was the same — to supervise and monitor children with special needs and difficulties. Diehl v. VPSAC, Inc., VWC File No. 208-39-57 (December 19, 2002).

Position with a cleaning crew and as a house cleaner. McNeil v. First Virginia Banks, Inc., 9 Va. App. 342, 381 S.E.2d 357 (1989); 67 O.I.C. 1 (1988).

Examples: .

Self-employed driver and driver pulling another’s trailer. James v. August Trucking Company, 73 O.W.C. 25 (1994).

Roofer and framing carpenter. Jenkins v. ADTCO, 69 O.I.C. 2 (1990).

Emergency medical technician and orthopedic attendant. Balson v. York County Fire Department, 69 O.I.C. 4 (1990).

Emergency room registration clerk and accounts receivable specialist for Lab Corp. Caton v. Fauquier Hospital, 76 O.W.C. 346 (1997).

Part-time counselor for abused and neglected children and Juvenile probation and parole officer. Diehl v. VPSAC, Inc., VWC File No. 208-39-57 (December 19, 2002).

COMPUTING AVERAGE WEEKLY WAGE.

Dissimilar Employment:

Employments dissimilar where claimant’s primary job mission as a lot associate for employer was to provide customer service in a retail store while his primary job mission as an event service attendant for second employer was to prepare and clean rooms before and after events at a hotel. Kpognon v. Home Depot USA, JCN VA00001243590 (Sept. 15, 2017).

The claimant who was injured while driving a truck during the summer was not entitled to have the wages from her school bus driving job included in her average weekly wage because the employment was not similar since it was not concurrent. While payment for the claimant’s school bus driving was made over a twelve-month period, her contract was for ten months of work and did not include the summer when her work injury occurred driving a truck. Adkison v. H & H Industries, VWC File No. 225-11-41 (June 15, 2007).

If the work for two or more employers is not of same character the wage received only from the employer in whose service worker was at time of injury will be considered. Graham v. Gloucester Furn. Corp., 169 Va. 505 , 194 S.E.2d 814 (1938); Canady v. Trinity Memorial Gardens, Inc., 55 O.I.C. 76 (1973); Wills v. Green, 56 O.I.C. 340 (1975); Harris v. Safeway Stores, Inc., 49 O.I.C. 140 (1967); Hulvey v. Bernstein, 36 O.I.C. 319 (1954); Washington v. Potts & Kidder, 7 O.I.C. 244 (1925); Thompson v. Herbert, 4 O.I.C. 310 (1922).

Wages earned in dissimilar concurrent employment may not be combined for the purpose of establishing the applicable weekly wage. Hudson v. Arthur Treacher, 2 Va. App. 323, 343 S.E.2d 97, 1986 Va. App. LEXIS 275 (1986).

The “dissimilar employment rule” is applicable in determining an employee’s average weekly wage both before the injury and his post-injury earning ability. City of Fairfax v. Massey, 11 Va. App. 238, 397 S.E.2d 679, 7 Va. Law Rep. 669, 1990 Va. App. LEXIS 188 (1990).

Rights of the parties are established by the law and the facts as they exist on the date of the accident. Wages earned in the employment in which injured are only wages to be considered, unless work in other employment is similar. Johnson v. Philip Morris, 57 O.I.C. 198 (1977).

Increased earnings received from an ability to work extra hours at a second pre-injury dissimilar job should be included in calculating the average weekly wage for the purposes of determining the rate of temporary partial disability. City of Fairfax v. Massey, 11 Va. App. 680, 401 S.E.2d 439, 7 Va. Law Rep. 1578, 1991 Va. App. LEXIS 24 (1991).

Combined earnings of two jobs at dairy, including overtime are be used but not earnings from driving a cab. Gaines v. Curles Neck Dairy, 49 O.I.C. 117 (1967).

Part time work as a restaurant manager is not sufficiently similar to the claimant’s full time employment as an accountant to combine the incomes in determining average weekly wage. Sleiman v. Chesapeake City Finance, 74 O.W.C. 66 (1995).

A member of the Virginia National Guard injured in the course of his duties is entitled to the maximum compensation rate. Earnings as a part-time custodian and as a counselor are dissimilar from the Guard duties and may not be included in determining the average weekly wage. Wade v. Virginia Military Affairs, 70 O.I.C. 1 (1991).

Income from a position as an independent contractor performing painting jobs may not be included in determining the claimant’s average weekly wage. O’Dell v. Benzo Paint Company, 73 O.W.C. 28 (1994).

Where all of the claimant’s job duties and skills in one job are utilized in a second job with a wider scope of employment, the Commission focuses on the “primary mission” of the employee in both jobs. This analysis provides a more rational basis for determining whether two employments are so related as to conclude they are substantially similar. The claimant performed computer data entry services in both of the positions she sought to combine for purposes of her average weekly wage. However, the Commission found that the primary mission of her work for the employer was abstracting personnel files, while the primary mission of her work for the second employer was assisting in the commercial shipping of packages. These jobs were not substantially similar, and they were not combined. Tate v. United Parcel Service of America, VWC File No. 198-42-59 (July 12, 2002).

Amending the Average Weekly Wage:

It is immaterial whether the mistake in the average weekly wage is mutual or unilateral. The incorrect average weekly wage was noted on the Pre-Hearing Statement and the average weekly wage did not resemble either the wages earned or the combined wages from similar employment. Both employments were substantially similar and should be combined. Smith v. Health Horizons, JCN VA02000011358 (Sept. 22, 2014).

Claimant guilty of laches by waiting five years before bringing error in average weekly wage to the Commission’s attention after initially stipulating to incorrect average weekly wage to the prejudice of employer. Steere v. Richmond Products Corp., VWC File No. 186-45-69 (June 15, 2004).

The Commission has the authority to amend an incorrect average weekly wage based on a mutual mistake of fact as requested by the employer. Honorkiewicz v. Capital Masonry Corporation, 74 O.W.C. 104 (1995).

After the appeal period has expired, average weekly wage corrections should be made only when there is clear and convincing evidence of [1] misrepresentation, fraud or imposition; [2] a calculation error, or [3] an actual mutual mistake of fact. Campbell v. Commercial Steel Erections, 64 O.I.C. 78 (1985).

The Commission will correct an average weekly wage which is clearly not computed in accordance with § 65.1-6 (now § 65.2-101 ) but only if such error is promptly brought to the Commission’s attention. Beard v. Virginia Roofing Corp., 65 O.I.C. 35 (1986).

In the absence of evidence of mistake, fraud, misrepresentation or imposition, a request to amend an average weekly wage six months after the award was entered is untimely. Spencer v. Commonwealth of Va. Dept. of State Police, 70 O.I.C. 4 (1991).

In allowing an amendment to an average weekly wage the Commission looks not only at the timeliness of the request but at all the circumstances including the knowledge the claimant had of a mistake, the availability of information to substantiate the mistake, and any inequity reformation may have had on the employer. Based on a finding that the widow was unaware of her husband’s actual earnings and that the carrier failed to calculate the average weekly wage in accordance with the provisions of § 65.2-101 , an amendment was allowed five years after entry of the award. Kuebbeler v. Atlantic Research Corp., 71 O.W.C. 10 (1992).

An award will be amended retroactively if an insurance carrier incorrectly calculated the average weekly wage resulting in either an underpayment for which additional compensation is owed or an overpayment for which a credit is due. Linton v. Norfolk Dredging Company, 69 O.I.C. 1 (1990).

Having found that claimant had convincingly established an error as to pre-injury average weekly wage, Commission vacated its previous award and directed insurance carrier to recompute employee’s compensation entitlement on all prior awards and to make future payments based on the corrected average weekly wage. Kaeser v. Centrex Corporation, 60 O.I.C. 255 (1981).

Agreed upon average weekly wage based on mutual mistake of fact may be amended. Robinson v. O. W. Ball, Jr., Lumber Co., 56 O.I.C. 267 (1975) (review opinion); Cain v. Morris, Newman, et al., 58 O.I.C. 45 (1978); Deel v. Goodyear Tire & Rubber Co., 58 O.I.C. 87 (1978).

Even though the parties entered into an agreement regarding average weekly wage and an award was entered, the Commission ha jurisdiction to consider whether the average weekly wage should be amended because the claimant was illegally paid at a rate lower than that required by law. The burden is on the claimant show by clear and convincing evidence that he was paid at less than the legal rate. Curtis v. Allard Trucking Company, 74 O.W.C. 208 (1995).

When a claimant fails to mention a similar second employment at the time an original Memorandum of Agreement is executed, the Agreement cannot subsequently be set aside for the purpose of using the combined earnings in determining the average weekly wage. Norman v. Prince William County Schools, 63 O.I.C. 248 (1984).

AWARD.

The receipt of permanent partial disability benefits pursuant to an Award is “compensation” and therefore tolls the statute of limitations under section 65.2-708 (A). Phillips v. Hubbell Lighting, Inc., JCN 212-91-89 (Aug. 18, 2011).

CHANGE IN CONDITION.

A change in condition is one that flows from a progression, deterioration or aggravation of the injury sustained in the original industrial accident. McBride v. Va. Dept. of Transportation, 76 O.W.C. 227 (1997).

The claimant’s credible testimony, corroborated by co-workers, established that he remained symptomatic following a work accident, but attempted to continue working for financial reasons. A subsequent lifting incident in the claimant’s backyard aggravated but did not cause the claimant’s back problems, and the Commission held that the back problems were related to the work accident. Eccard v. Southside Community Hospital, 77 O.W.C. 54 (1998).

The 1991 amendment added to the language of § 65.2-101 “Change in condition” the reference to awards that had been “suspended,” and employees thereafter were required to prove continuing disability as well as a “cure” of an earlier refusal in order to have benefits reinstated. Perrigan v. Clinchfield Coal Co., 75 O.W.C. 324 (1996); Kaya v. Northwest Airlines, 77 O.W.C. 108 (1998).

In 1991, the General Assembly amended the definition of “change in condition” to include “any change in the conditions under which compensation was awarded, suspended, or terminated.” The Commission later held that this amendment effectively vitiated the distinction between suspended and terminated, and claimants thereafter were obliged to prove continuing disability, through marketing efforts, in order to have compensation benefits reinstated. Goddard v. Albrite Engine Works, 78 O.W.C. 256 (1999).

Section 65.2-510.1 provides that compensation benefits for wage loss shall be suspended whenever a partially disabled employee is imprisoned in a jail. Once suspended, a resumption of benefits is not automatic or self-executing upon release from incarceration. The claimant is required to prove that he is entitled to a resumption of benefits. Goddard v. Albrite Engine Works, 78 O.W.C. 256 (1999).

The requirement that an Employer’s Application For Hearing must be under oath is in Rule 1.4(B)(2). By the terms of that Rule, it only applies to a change in condition application filed by an employer under § 65.2-708 . Nuttall v. Autozone, 79 O.W.C. 195 (2000).

Where an Employer’s Application For Hearing is filed pursuant to § 65.2-712 , the requirements of Rule 1.4(A) apply. However, the application need not be submitted under oath, as is required by Rule 1.4(B) for applications submitted under § 65.2-708 . Nuttal v. Autozone, 79 O.W.C. 195 (2000).

See notes to § 65.2-708 .

REQUIRED NUMBER OF EMPLOYEES.

General:

The Commission has jurisdiction if the employer regularly has in service three or more employees in the Commonwealth. Employees working exclusively outside Virginia are not included for determining jurisdiction. Parker v. Carriage Lamp Cleaners, 70 O.I.C. 9 (1991).

It is the employer’s burden to prove it had regularly in service less than three employees in the same business within the Commonwealth and therefore is not subject to the Workers’ Compensation Act. Johnson v. M S Carriers, 77 O.W.C. 104 (1998).

A person cannot be an employee under the Act if the alleged employer has regularly in service less than three employees in the same business within the Commonwealth. Eliason v. Boger Construction Company, 76 O.W.C. 385 (1997).

Section 65.2-101(2)(h) requires only that the employer have three or more employees “regularly in service” to be within the jurisdiction of the Act. Temporary fluctuations in the number of employees do not enable an employer to avoid jurisdiction. The controlling member must be determined in light of the employer’s established mode of business. Powell v. Up Front Painting, 76 O.W.C. 55 (1997).

Both full-time and part-time employees who are regularly employed to carry out the trade or business of the employer must be counted in determining the number of employees “regularly in service” with the employer. Any person hired by the employer to work in the usual course of the employer’s business is an “employee” under the Act, regardless of how often or for how long he may be employed. The number of employees regularly in service of the employer is the number “used to carry out the established mode of performing the work of the business . . . even though the work may be recurrent instead of constant.” In determining whether the employer has three or more employees regularly in service, the Commission focuses on “the character of the business” rather than “the character of the employment relationship.” Johnson v. M S Carriers, 77 O.W.C. 104 (1998).

In determining whether the minimum number of employees exists to invoke the Workers’ Compensation Act, the Commission counts the total number of persons employed on the job by the contractor and all subcontractors. Smith Construction v. Weber, 3 Va. App. 379, 350 S.E.2d 213 (1986); Powell v. Up Front Painting, 76 O.W.C. 55 (1997).

Incorporated subcontractors, who are considered employees under the Act, count as statutory employees of the general contractor. Velonza v. Pandell Builders, Inc., 75 O.W.C. 172 (1996).

A volunteer charitable organization that has three or more regular employees is an employer under the Act. Williams v. Warren Association for Retarded Citizens, Inc., 70 O.I.C. 18 (1991).

Members of a corporation’s board of directors are included as employees under the Act, whether or not they receive a salary. Williams v. Warren Association for Retarded Citizens, Inc., 70 O.I.C. 18 (1991).

Officers of a corporation, whether paid or unpaid are considered employees of the corporation. While an unpaid corporate officer is not entitled to an award for wage loss, an award may be entered for medical benefits. Sorrells v. Cliffside Service Center, 69 O.I.C. 6 (1990).

Employees of a prime contractor’s real estate business are not counted as employees of his construction business, where there a clear and complete separation of the two businesses. Velonza v. Pandell Builders, Inc., 75 O.W.C. 172 (1996).

When an employer has the requisite number of employees to bring him within the jurisdiction of the Virginia Workers’ Compensation Act, the existence of an action at law pending in another Court does not preclude the Commission from exercising its jurisdiction nor does it limit that of the other forum. Estate of Larry Gene Higgins v. Roanoke Electric Steel Corporation, 65 O.I.C. 13 (1986).

It is proper to allow a proffer relating to the number of employees in previous years where the issue was whether the employer had a sufficient number of employees to be under the Act. Until such a proffer is offered, the Deputy Commissioner cannot determine if the evidence is relevant. A refusal of a proffer frustrates the appellate review process. Smith v. Mike Hylton t/a M.H. Stables, 14 Va. App. 354, 416 S.E.2d 712, 8 Va. Law Rep. 2859, 1992 Va. App. LEXIS 128 (1992).

Where records filed with the Commission indicate that witnesses were mistaken as to the number of employees that worked for the employer, the Commission remanded the case to cross examine the employees on the question of jurisdiction. Ruiz v. Abbotts Upholstery, 75 O.W.C. 213 (1996).

The Commission looks to the established mode in which the employer does business to determine if it had regularly in service fewer than three employees. The employer amusement park employed over fifteen people during its operational season, but employed fewer than three during the off-season. The Commission found that the employer’s established mode of business was to operate an amusement park during the appropriate seasons, regularly employing more than three workers. The Commission held that the claimant’s status as a covered employee should not fluctuate merely because it occurred at the end of the season when the number of employees on the payroll dropped below the statutory minimum. Cornelius v. 15th Street Amusement Park, L.L.C., VWC File No. 203-03-83 (June 26, 2002).

“Regularly” Defined:

Any person hired by the employer to work in the usual course of the employer’s business is an “employee” under the Act, regardless of how often or for how long he may be employed. With the exception of farm and horticultural businesses, both full-time and part-time employees who are regularly employed to carry out the trade or business of the employer must be counted in determining the number of employees “regularly in service.” Pineda v. Brothers, 78 O.W.C. 1 (1999).

“Regularly” as used in the statute is not synonymous with constant. An employer cannot oscillate between coverage and exemption as his force exceeds or falls below the minimum from time to time. Cannady v. McRae Co., 57 O.I.C. 74 (1977); Jewell v. Steel Erectors, Inc., 46 O.I.C. 123 (1964); James v. White’s Grill, 44 O.I.C. 148 (1962).

The number of employees regularly in service of the employer is the number used to carry out the established mode of performing the work of the business, even though the work may be recurrent instead of constant. In determining whether the employer has three or more employees regularly in service, the Commission focuses on “the character of the business” rather than “the character of the employment relationship.” Pineda v. Brothers, 78 O.W.C. 1 (1999).

Workers obtained through a temporary employment agency over a period of eight months were employees “regularly in service” of the employer so as to bring it within the jurisdiction of the Act. Mayfield v. Scott Dixon t/a American Retrofit Management and Armada Hoffler Construction Co., 74 O.W.C. 11 (1995).

The payroll records of the seasonal landscaping business indicated that the employer had fewer than three employees on some weeks during the work season, but the employer had three or more employees in service for the majority of that time, and the employer always had three or more employees when the claimant worked. The Commission found that this evidence established that the employer regularly employed three or more persons, and that it was subject to the jurisdiction of the Act. Pineda v. Brothers, 78 O.W.C. 1 (1999).

An employer who does not regularly have in service three or more employees does not come within the Virginia Workers’ Compensation Act even if on the date of the accident three or more people were employed. Walker v. W. E. Williams, 68 O.I.C. 19 (1989).

Truck drivers “regularly in service” implies more than work merely involving occasional pick-ups and drop-offs or merely driving through Virginia. Johnson v. M S Carriers, 77 O.W.C. 104 (1998).

That some or all employees may work part-time is immaterial in determining jurisdiction under the Act. Burkhardt v. Whippich, 55 O.I.C. 57 (1973).

The Commission looks to the established mode in which the employer does business to determine if it had regularly in service fewer than three employees. The employer amusement park employed over fifteen people during its operational season, but employed fewer than three during the off-season. The Commission found that the employer’s established mode of business was to operate an amusement park during the appropriate seasons, regularly employing more than three workers. The Commission held that the claimant’s status as a covered employee should not fluctuate merely because it occurred at the end of the season when the number of employees on the payroll dropped below the statutory minimum. Cornelius v. 15th Street Amusement Park, L.L.C., VWC File No. 203-03-83 (June 26, 2002).

Charities/Churches:

There is no exception in the Workers’ Compensation Act for charitable or religious organizations. King v. Community of Hope, Inc., 63 O.I.C. 203 (1984).

A volunteer charitable organization that has three or more regular employees is an employer under the Act. Williams v. Warren Association for Retarded Citizens, Inc., 70 O.I.C. 18 (1991).

EMPLOYEE.

Note: Also see “Employer” below.

General:

Whether a claimant is an “employee” at the time of his injuries is governed by common law principles, and the most important indicator is whether the employer exercised control over the worker or whether the employer merely contracted for an end result. The question of what is meant by “control” depends upon the particular facts of each case. “Employees” work in many different contexts. Some “employees” work at remote locations or at home, without direct supervision. Some “employees” are professionals exercising independent judgment in decision-making. Some “employees” control their own work hours. “Employees” may be temporary or part-time. Some are paid on a “piece work” or commission basis, while others receive wages or a salary. Claros v. G & S Construction, Inc., 78 O.W.C. 153 (1999).

Contract of Hire:

Employee working to repay monetary debt to employer considered to work under a contract of hire; determination of contract of hire based on whether employee works in exchange for something of value, such as forgiveness of monetary debt. Bostic v. Brenda Smith Farms, Inc., VWC File No. 211-48-59 (June 19, 2003).

Volunteer firefighter injured while attending training supplied by county; county not considered employer because not “using the service” of claimant at time of accident nor had it adopted resolution electing workers’ compensation coverage; county also not special employer because claimant not performing any service for county at time of accident. Catlett v. Caroline County Fire & Rescue, VWC File No. 206-13-68 (May 13, 2003).

“Contract of hire” is not defined in Act. Charlottesville Music Center v. McCray, 215 Va. 31 , 205 S.E.2d 674, 1974 Va. LEXIS 227 (1974).

The claimant has the burden to prove that he is an employee subject to the control of the employer, that he is under a contract of hire that provides an agreed remuneration for services rendered, and that the work being performed is in the business, trade, occupation, or profession of the employer. Eliason v. Boger Construction Company, 76 O.W.C. 385 (1997).

The Commission generally looks at four factors in deciding whether a claimant is an employee or independent contractor: the authority to select and engage the employee, the obligation to pay wages, the power of dismissal, and power of control of the employee’s actions. Where the claimant’s uncontradicted testimony established that the employer paid him by the hour and had recently given him a pay raise; directed him where and when to work; and provided transportation, equipment, meals, and lodging for out of town work, the Commission found that he was an employee. Powell v. Up Front Painting, 76 O.W.C. 55 (1997).

While it is not essential to the establishment of an employment relationship that wages be paid, there must be an implied or written contract of hire and some control exercised by the employer over an employee. The employer’s wife who received no salary, was omitted from the workers’ compensation policy and listed as a housewife for income tax purposes, was not an employee. G. Johnson v. Overhead Doors/Loyd D. Johnson, Sr., 68 O.I.C. 26 (1989).

Where the relationship between a claimant and a business owner is one of reciprocal gratitude that is terminable at will with no specific employment obligations or relationship between service and compensation and no control over the performance of any work by the claimant, there is no contract of hire and no employee/employer relationship. Behrensen v. Whitaker, 10 Va. App. 364, 392 S.E.2d 508, 6 Va. Law Rep. 2457, 1990 Va. App. LEXIS 99 (1990).

Part-time assistant County Registrar injured at polling place held to be employee of Board of Elections. O’Connor v. Arlington County Electoral Board and/or State Board of Election, 60 O.I.C. 333 (1981).

An employee of a mere owner on a residence under construction, which is not being built as part of the owner’s trade or business, is not an employee covered by the Virginia Workers’ Compensation Act. Hartley v. Garland E. Pugh Mech. Contr., 76 O.W.C. 129 (1997).

Hired by Unauthorized Person:

Where a regular employee, not already authorized to act as agent of employer for purpose of hiring additional employees, engages the services of another to assist him in his duties and pays him himself, the question as to whether the principal employer is liable under the Act to such third person depends upon whether he has knowledge of such employment and consents thereto. This knowledge may be actual or imputed and the consent may be express or implied. Nolde Bros. v. Chalkley, 184 Va. 553 , 35 S.E.2d 827 (1947); Futrell v. Holland’s Auto Service, 28 O.I.C. 709 (1946); Murray v. Home Brewing Co., 20 O.I.C. 139 (1939).

Unauthorized Helper:

A person helping an employee but who was not hired by the employer or an authorized agent, is not an employee, though an emergency situation may authorize an employee to hire a helper. Brizendine v. Amherst County School Board, 37 O.I.C. 2 (1955); Blackburn v. Stone Mountain Bottling Co., 31 O.I.C. 158, 229 (1949) (appeal denied).

A person learning to operate employer’s equipment in hope of future employment was not an employee. Gilliam v. Moore, 46 O.I.C. 9 (1964) (appeal denied).

Janitor voluntarily working on inoperative elevator while visiting co-worker in another building was not an employee. Robinson v. Hampton Institute, 52 O.I.C. 215 (1970).

Minors:

Minors are specifically included under the Act. Kenney v. Pancake Kitchens, 48 O.I.C. 147 (1966) (appeal denied by Virginia Supreme Court; cert. denied by Supreme Court).

A minor employed in violation of the labor law is employee entitled to benefits under the Act. Chalkley v. Nolde Bros., 186 Va. 900 , 45 S.E.2d 297, 1947 Va. LEXIS 208 (1947); Humphries v. Boxley Bros. Co., 146 Va. 91 , 135 S.E. 890 , 1926 Va. LEXIS 314 (1926).

Thirteen-year-old was an employee where employer took to work site and showed how to clean and store bricks used in the defendant’s business. Bean v. I.P.K. Excavating Co., 49 O.I.C. 20 (1967).

Fifteen-year-old boy helping friend who voluntarily worked without promise or expectation of payment was not an employee. Charlottesville Music Center v. McCray, 215 Va. 31 , 205 S.E.2d 674, 1974 Va. LEXIS 227 (1974).

Employee sui juris: fifteen years old when injured, now 19 1/2 years old. Thompson v. Stewart Buick Inc., 51 O.I.C. 271 (1969).

Family Members:

Where employer is husband of wife partially dependent on deceased employee-son, wife can maintain action as Act makes no exception because of family relationship between employer and employee. Glassco v. Glassco, 195 Va. 239 , 77 S.E.2d 843, 1953 Va. LEXIS 193 (1953).

If employer is dependent wife of deceased employee-husband, no action can be brought by dependent wife-claimant against wife-employer as same person cannot be both beneficiary and employer. Miller v. Miller, 33 O.I.C. 518 (1951); 34 O.I.C. 173 (1952).

There is no employer-employee relationship between the corporation and the individual where the wife of a principal stockholder of a corporation assisted her husband with the corporate bookkeeping but received no pay, had duties assigned her, and the corporation had no control over her. Carter v. Carter, 49 O.I.C. 58 (1967); Setliff v. Lewis, 42 O.I.C. 118 (1960).

Where the wife is an officer of the corporation of which her husband is president, she is an employee. Clary v. Clary Timber Sales, Inc., 55 O.I.C. 95 (1973).

While the assignment of tasks by parent to child is commendable, it does not constitute employer-employee relationship where eleven-year-old son of employer is given tasks at store. Clare v. Clare, 50 O.I.C. 87 (1968).

Pre-employment Testing/Trainees:

Employee injured during pre-employment training did not prove existence of employment relationship with employer; employer invited employee to attend training camp, successful completion of which would lead to offer of employment; no completed contract of hire shown until all prerequisites to employment, including successful completion of training camp, became final. Saldana v. Asset Protection Team, VWC File No. 204-46-10 (Dec. 11, 2003).

Compensation benefits were denied to a claimant who fell during a pre-employment test because there was no contract of hire or other agreement that he would be paid during the try-out period. Scott v. Windsor Tree Service, 70 O.I.C. 5 (1991).

Injured during training period for sales, claimant had status of employee. Richards v. Crime Control, Inc., 54 O.I.C. 314 (1972).

In awarding benefits to a claimant who was injured while demonstrating her ability to operate a dry cleaning press, the Commission found that she was an employee rather than a volunteer since there was an implied agreement that she would receive the minimum wage for her efforts. Girdy v. Quick & Easy One Hour Cleaners, 68 O.I.C. 29 (1989). (Affirmed by the unpublished Court of Appeals opinion of 11/6/90).

Student Nurses:

A person who performs a service for the public and a hospital as a student nurse for pecuniary gain to the hospital is an employee of the hospital. Thomas v. University of Va. Hospital, 34 O.I.C. 650 (1952).

Student nurse held not to be an employee of hospital. Lawson v. Petersburg Gen. Hospital, 49 O.I.C. 181 (1967).

Military:

An enlisted member of National Guard during period of active service does not cease being an employee of the State while on recreational pass. Globe Indem. Co. v. Forrest, 165 Va. 267 , 182 S.E. 215 , 1935 Va. LEXIS 295 (1935).

Corporate Officers:

A Virginia Limited Liability Company does not have officers for the purposes of the definition of “employee” contained in § 65.2-101 . An LLC is composed of one or more members who are the owners and who may pursuant to the articles of organization or an operating agreement elect to have a manager(s). Managers so elected or appointed are automatically employees for the purposes of the Act. Where there is only one member, § 65.2-101 n provides that by notifying the LLC’s insurer he/she may elect to be an employee under the Act. Jones v. Slade, LLC, Clifton Slade & Slade’s Park, VWC File No. 226-66-62 (Oct. 17, 2007).

Members of a corporation’s board of directors are included as employees under the Act, whether or not they receive a salary. Williams v. Warren Association for Retarded Citizens, Inc., 70 O.I.C. 18 (1991).

Officers of a corporation are considered employees in determining whether an employer is under the Act. Spurlock v. Lineberry, 70 O.I.C. 22 (1991).

Payment of a salary to a corporate officer is not an essential element in determining whether an officer is an employee of the corporation. Sink v. R. N. Chiles & Sons, Inc., 62 O.I.C. 414 (1983) (see also Polozzi v. Custom Travel & Designs, Inc., 68 O.I.C. 100 (1989)).

Officers of a corporation, whether paid or unpaid, are considered employees of the corporation. While an unpaid corporate officer is not entitled to an award for wage loss, an award may be entered for medical benefits. Sorrells v. Cliffside Service Center, 69 O.I.C. 6 (1990).

Director of dissolved corporation operated business as sole proprietor and thus was barred from compensation. Nofs v. Marj’s Metal Co., Inc., 58 O.I.C. 257 (1979).

Prisoners:

A prisoner injured while in Virginia’s corrections system is not an employee covered by the Virginia Workers’ Compensation Act. Singleton v. Haynesville Correctional Center, 76 O.W.C. 1 (1997).

A prisoner who was injured while working on a road crew under an agreement between the Department of Corrections and the Department of Transportation was not an employee under the Workers’ Compensation Act. Woodward v. Commonwealth of Va./Dept. of Corrections, 249 Va. 21 , 452 S.E.2d 656 (1995); 71 O.W.C. 24 (1992).

A prisoner sentenced to hard labor gang is not employee of Commonwealth of Virginia nor of Department of Highways. Stanley v. Dept. of Highways, 52 O.I.C. 244 (1970).

Prisoner on work release program injured while working for private employer is employee entitled to compensation. Lawrence v. Prestwick, Inc., 56 O.I.C. 196 (1974).

Loaned Employee:

Employee who was hired by staffing company to work for engineering firm, where he was injured, considered employee of engineering firm; employee worked at firm for several months, without regular contact with staffing company, and firm exercised exclusive control over employee’s daily activities; engineering firm considered special employer. Price v. Reliance Staffing Serv., VWC File No. 211-70-30 (Dec. 8, 2003).

The Act is silent as to the status of a loaned employee. It is his special master at the time of accident, and not his general master, as those terms are defined at common law, who is liable for compensation. An employee becomes the servant of a special master when the latter acquires the right to control and direct the former in his work, even though the wages continue to be paid by the regular employer. Ideal Steam Laundry v. Williams, 153 Va. 176 , 149 S.E. 479 , 1929 Va. LEXIS 254 (1929).

The Supreme Court of Virginia has set forth several factors to consider in deciding whether a person is a borrowed servant: (1) who has control over the employee and the work he is performing; (2) whether the work performed is that of the borrowing employer; (3) was there an agreement between the original employer and the borrowing employer; (4) did the employee acquiesce in the new work situation; (5) did the original employer terminate its relationship with the employee; (6) who is responsible for furnishing the work place, work tools, and working conditions; (7) the length of the employment and whether it implied acquiescence by the employee; (8) who had the right to discharge the employee; and (9) who was required to pay the employee. Eliason v. Boger Construction Company, 76 O.W.C. 385 (1997).

In Virginia, the “special employer” rule is used to determine which of two employers is liable for compensation benefits to an injured employee. The rule was borrowed from the common law relating to master-servant relationships to resolve dual employer situations in the workers’ compensation context. The hallmark of the rule is control. McClellan v. H.L. Yoh Company, 77 O.W.C. 141 (1998).

Where special master has the right and power to direct, control or dismiss one who has been assigned to him by another, the special master is the employer under the Act, even though the regular employer selected him, pays him and can also dismiss him. Beasley v. Sweeney, 44 O.I.C. 11 (1962); Rogers v. Vanguard Const. Corp. et al., 56 O.I.C. 272 (1974) (writ denied).

To determine whether a party is a special employer, the Commission examines four elements of the master-servant relationship: (1) selection and hiring of the servant; (2) payment of his or her wages; (3) power of dismissal; and (4) power of control of the servant’s actions. The most significant factor is the extent of control over the employee. McClellan v. H.L. Yoh Company, 77 O.W.C. 141 (1998).

In order for the regular employer to be relieved there must be some indication, express or implied, of consent of the employee to his becoming the servant of the special master. Ideal Steam Laundry v. Williams, 153 Va. 176 , 149 S.E.2d 479 (1929); Critcher v. McGuire Lumber & Supply Co., 55 O.I.C. 111 (1973).

The claimant is not the actual or borrowed employee of a contractor, where the contractor does not control the means or methods of work alleged to have been performed. Eliason v. Boger Construction Company, 76 O.W.C. 385 (1997).

The “special employer” doctrine provides that the loaned employee must look to his or her special employer for indemnity for injuries suffered while performing the special employer’s work. McClellan v. H.L. Yoh Company, 77 O.W.C. 141 (1998).

There is an important distinction between lending an employee to another and giving orders to employee to do some work for a third party. In the latter case he and not the person for whom the work is being done at time of accident will be liable under the Act. Arrington v. Murray, 182 Va. 1 , 28 S.E.2d 19 (1943); Alexandria v. McClary, 167 Va. 199 , 188 S.E. 158 (1936); Borrer v. Plumly Lumber Corp., 27 O.I.C. 649 (1945).

VPI & SU was the decedent’s special master at the time of his death and, therefore, solely responsible for the payment of workers’ compensation benefits to his dependents. VPI & State Univ. v. Frye, 6 Va. App. 589, 371 S.E.2d 34, 5 Va. Law Rep. 154, 1988 Va. App. LEXIS 85 (1988).

When an official of corporation instructs worker not to check out but to come with him to perform a job off the premises, an accident during such job arises out of and in the course of his employment with the corporation (cutting grass at home of officer of corporation). Wiggins v. Davenport-Lewis Chevrolet Corp., 45 O.I.C. 249 (1963).

Employee injured while working at employer’s cabin as directed was employee of business. Simmons v. Mitchell, 50 O.I.C. 303 (1968).

The claimant who was working an undercover assignment to identify drug abusers was an employee of Wackenhut and not an employee subject to a special master. Anderson v. Wackenhut, 66 O.I.C. 35 (1987).

Joint Employee:

As provided in § 65.1-80 (now § 65.2-529 ), where the employee for whose injury or death compensation is payable was at the time of injury in the joint service of two or more employers, subject to the Act, such employers must contribute to payment of compensation in proportion to the part of employee’s aggregate wage paid by each. Shaffer v. Davenport-Lewis Chevrolet Corp., 41 O.I.C. 125, 127 (1959); Strolher v. American Railway Express Co., 3 O.I.C. 41 (1921).

In applying this rule it is immaterial that one employer pays entire wage and bills the other for his agreed share. Allen v. Darling & Son, 24 O.I.C. 297 (1942); Mauck v. Shenandoah Valley Corp., 14 O.I.C. 283 (1932).

The fact that one person contributes more to the compensation of a worker than another does not prevent the contributor of the smaller amount from being the employer. Hawthorne v. Thalhimer Bros., Inc., 32 O.I.C. 35 (1950).

Where claimant’s employment was secured through the Division of Elementary & Special Education, his salary paid, supervision and control exercised and salary determined by that State Agency, it was held the County School Board was merely the agent of the State for purpose of issuing salary checks and he was an employee of the State. Yates v. School Board of Roanoke County, 44 O.I.C. 291 (1962).

Casual Employees:

The provision of this section excluding casual employees from the Act must be read together with § 65.1-4 (now § 65.2-101 ). The test is the nature of employment, not nature of the contract. Horne v. Clinchfield Coal Co., 53 O.I.C. 144 (1971).

“Casual employees” are not covered by the Act. Employment “is casual when not permanent nor periodically regular, but occasional, or by chance and not in the usual course of the employer’s trade or business.” Waggle v. Lang, 75 O.W.C. 33 (1996).

Employment cannot be said to be casual where it is in usual course of trade, business or occupation of employer, even though worker is engaged only for performance of a single casual task. Hoffer Bros. v. Smith, 148 Va. 220 , 138 S.E. 474 (1927) (unloading furniture for retail furniture store); Rogers v. Rusco Window Co. of Roanoke, Inc., 54 O.I.C. 324 (1972) (temporary employment unloading boxes of siding).

Where the employment is not permanent or periodically regular, but occasional, or by chance, and not in usual course of employer’s trade or business the employee is a casual one and does not come under the Act. Board of Supervisors v. Boaz, 176 Va. 126 , 10 S.E.2d 498 (1940) (repairing window of courthouse). See also Bennett v. Peerless Wallcoverings, Inc., 59 O.I.C. 22 (1980).

An employee cannot be said to be casual when his work is in the usual trade, business, or occupation of the employer, even though the worker may be engaged only for the performance of a single casual task. Deaton v. Isaac Allen, 62 O.I.C. 155 (1983).

Since the employer was in the trade, business and occupation of regularly moving furniture in Virginia and had three or more employees in the State, the claimant who was hired to unload furniture was an employee rather than a casual employee or independent contractor. Settles v. Craddock Moving & Storage Co., 16 Va. App. 1, 427 S.E.2d 428 (1993); 71 O.W.C. 31 (1992).

As long as there is anticipated some continuity of employment, worker is not a casual employee merely because he is not employed in a permanent capacity. Seasonal employers are not exempted from the insurance requirements of the Act. Montross v. Wm. Melvin t/a Barnacle Bill’s Bait & Tackle, 68 O.I.C. 22 (1989).

Definitions of “casual employee” and “employee regularly in service,” discussed. Dearing v. Krantz, 54 O.I.C. 79 (1972).

Where poultry processing company was in constant state of physical expansion, they made construction a part of their business and claimant was not a casual employee. Baker v. Marval Poultry Co., Inc., 55 O.I.C. 22 (1973).

Farm Labor/Domestic Servants:

The employer, who engaged in the horticultural or farming business, was subject to the Workers’ Compensation Act based on a finding that there were regularly in service more than two full time employees. Garcia-Espinal v. Cundiff, 71 O.W.C. 27 (1992).

Horticultural work involves cultivating fruits, vegetables, flowers, and plants; and plowing, tilling, or fertilizing in preparation for raising crops or plants. A landscaping business that performs work such as mowing grass, mulching, and edging trees is not a farm or horticultural business. Pineda v. Brothers, 78 O.W.C. 1 (1999).

As used in § 65.1-28 (now § 65.2-101 ) the term “full-time” imports a sense of permanence coupled with a commitment between the employer and employee whereby the latter’s normal employment capacity is essentially utilized. The term “full time employee” refers to a specific person whose employment satisfies the definition of full-time. It does not define an aggregation of part-time employees. Lynch v. Thomas E. Lee & Sons, 12 Va. App. 933, 406 S.E.2d 423, 8 Va. Law Rep. 300, 1991 Va. App. LEXIS 177 (1991) (see also Lynch v. Lee, 19 Va. App. 230, 450 S.E.2d 391 (1994)).

A farm worker is not covered as an “employee” within the meaning of the Virginia Workers’ Compensation Act “unless the employer regularly has in service more than two full-time employees.” “Full-time employment” refers to a sense of permanence and a commitment between the employer and employee whereby the employee’s normal employment capacity is essentially utilized. Cosgrove v. Sowers, 79 O.W.C. 63 (2000).

“Full-time” does not include workers hired only for the harvest season. Ferguson v. Bowman, 57 O.I.C. 120 (1976).

The claimant and another employee each worked approximately 91 hours per week for the employer, and each received a salary, housing provisions, vacation time, and sick leave. By comparison, the other workers generally worked less than 40 hours per week each, and they were paid by the hour and received no benefits. Evidence showed that these other workers had fluctuating schedules with varying hours and irregular responsibilities, depending upon available jobs. They also attended school full-time, and it was thus impossible for the employer to utilize them in a full-employment capacity. The Commission held that the employer had only two full-time employees, and that the Commission therefore lacked jurisdiction over this employer. Cosgrove v. Sowers, 79 O.W.C. 63 (2000).

At the time of the accident, two workers for the employer were considered by the Commission to be employees only for an indefinite period of time, since both planned to attend college. One of the workers thereafter obtained another job with a construction company, demonstrating that he was uncommitted to the employer. The other worker committed to the employer after the accident instead of attending college, at which time he became a full-time employee with benefits. These facts illustrated for the Commission that only the claimant and one other employee worked full-time for the employer at the time of the accident, and that the Commission did not have jurisdiction over industrial injury at the time of the accident. Cosgrove v. Sowers, 79 O.W.C. 63 (2000).

Claimant, a fruit picker from Jamaica, who was assigned by Growers Association to work for Tomblin who paid him, furnished transportation to and from living quarters and, in effect, paid for his housing was an employee of Tomblin and not the Association. Brown v. Tomblin, 54 O.I.C. 38 (1972).

Domestic Servants are exempted from coverage of the Act. Hux v. Trust for Benefit of Jean Roche, 59 O.I.C. 143 (1980).

Also see cases under topic “regularly” above.

Independent Contractors:

Claimant was employee, not independent contractor, where employer controlled claimant’s work by furnishing him with materials and some tools, provided transportation, assigned claimant to particular projects, inspected claimant’s work, had authority to dismiss claimant if work was unsatisfactory, and intended to obtain workers’ compensation coverage for the period at issue. Thomas v. Gooding Constr. Co., VWC File No. 217-20-23 (March 31, 2005).

An independent contractor is personally covered as an employee only if he, the statutory employer, and the workers’ compensation carrier all agree in writing to include the independent contractor within the coverage. Reynolds v. Yellow Cab Co., 75 O.W.C. 76 (1996).

Workers’ compensation insurance purchased to cover employees of subcontractors does not require that coverage be extended to the subcontractors themselves. McDonough v. Wisco Aluminum Corp., 75 O.W.C. 263 (1996).

Where workers’ compensation insurance coverage is obtained through an alleged statutory employer and paid by the claimant, the evidence is sufficient to prove only that employees of the claimant were covered. Whitlock v. Whitlock Mechanical, 75 O.W.C. 350 (1996).

Where the claimant does not prove that the alleged statutory employer exercises control over his work, but merely obtains contracts for the claimant from time to time, his evidence is insufficient to prove that he is an employee. Whitlock v. Whitlock Mechanical, 75 O.W.C. 350 (1996).

Employees of Independent Contractors:

The claimant was found to be an employee of an independent contractor, who did not have requisite number of employees to bring him under the Act. It was also found that he was not a statutory employee of the co-defendant at whose place of business the work was being performed because the work was not part of the co-defendant’s trade, business or occupation. Sylvia v. Graveley Construction Company, 63 O.I.C. 346 (1984).

In determining whether the minimum number of employees exists to invoke the Workers’ Compensation Act, the Commission counts the total number of persons employed on the job by the contractor and all subcontractors. Smith v. Weber, 3 Va. App. 379, 350 S.E.2d 213, 3 Va. Law Rep. 1114, 1986 Va. App. LEXIS 372 (1986).

Except as provided in § 65.1-29 (now § 65.2-302 ) an employee of an independent contractor is not an employee of the person contracting with the independent contractor. The person contracting with the independent contractor may be liable to employees of independent contractor under § 65.1-29 (now § 65.2-302 ), where the independent contractor is performing work which is part of the trade, business or occupation of the employer. All persons (except independent contractors themselves) engaged in performing a part of the trade, business or occupation of another are that person’s statutory employees for compensation purposes. The sole factual issue is whether the work being done by claimant was a part of the trade, business or occupation of defendant corporation. Winder v. Va.-Carolina Veneer Corp., 45 O.I.C. 251 (1963); McCoy v. Mims, 219 Va. 616 , 248 S.E.2d 817, 1978 Va. LEXIS 221 (1978).

Employee of an independent contractor may sue another independent contractor at law. Kramer v. Kramer, 199 Va. 409 , 100 S.E.2d 37, 1957 Va. LEXIS 205 (1957).

Employers are not relieved from liability for their own negligence which causes injury to employees of independent contractors engaged in performance of work for employers outside the scope of the latter’s occupation. Kramer v. Kramer, 199 Va. 409 , 100 S.E.2d 37, 1957 Va. LEXIS 205 (1957).

Examples:

A worker must provide a service in the usual course of trade, business, or profession of the employer to be an employee under the Act. It is not enough that the service provided has some incidental business benefit to the employer. Montross v. Wm. Melvin t/a Barnacle Bill’s Bait & Tackle, 68 O.I.C. 22 (1989).

Where the employee is hired after responding to a newspaper advertisement, and his term of employment is indefinite and for a salaried income; and where the employee is assigned no single task or project and works with other employees or specialists hired by the employer to complete his assigned work; and where the employer retains the right to terminate the employment at will, an employer-employee relationship is established. Sidam v. Manjac Construction Co., 76 O.W.C. 19 (1997).

Employees of a business who were hired only to perform work that was not part of the regular or permanent operations of that business are not employees defined and covered by the Act. Waggle v. Lang, 75 O.W.C. 33 (1996).

The claimant, a mechanic who was paid by commission, was found to be an employee based on evidence that labor charges, warranty terms, dispatching, and twenty-four hour call were mandated by the employer. Nielsen v. Jim’s Home Auto, 71 O.W.C. 37 (1992).

Despite evidence of a signed contract to the contrary, a claimant working for a courier service was held to be an employee. Walker v. Road Runner Express, 62 O.I.C. 472 (1983).

The fact that the claimant was paid by piece work rather than by the hour has no bearing on whether there is an employee-employer relationship, where these other indices of control are present. Claros v. G & S Construction, Inc., 78 O.W.C. 153 (1999).

Despite a signed agreement indicating that the claimant was an independent contractor, the Commission found him to be an employee because of the degree of control exercised by the employer. Sampson v. C & C Trucking, Inc., 71 O.W.C. 41 (1992).

Since he was not under the direction and control of the lessee of the truck at the time of the accident, the claimant was held to be an employee of the uninsured lessor of the truck. Strange v. Kinsmen Trucking, Inc. and/or Warren Trucking Compa, 62 O.I.C. 436 (1983).

The driver of a tractor-trailer unit was held to be an employee of the equipment owner because of the existence of the element control. Spence v. Ferris, 64 O.I.C. 296 (1985).

Truck driver for laundry was an employee. Palmer v. White Way Laundry, Inc., 48 O.I.C. 180 (1966).

Dance choreographer under control of play director-producer was an employee. Hepburn v. Resseguie and/or National Dinner Theatres Inc., 54 O.I.C. 174 (1972).

Hairdressers and shampoo person were employees. Burkhardt v. Whippich, 55 O.I.C. 57 (1973).

Claimant, who was hired by dairy farm owner to improve farm buildings, was held to be an employee. Good v. Paul C. Edmunds, Jr. t/a Blue Ribbon Dairy Farm, 57 O.I.C. 138 (1976).

Newspaper route carrier found to be an employee. Hann v. Times-Dispatch Pub. Co., 166 Va. 102 , 184 S.E. 183 , 1936 Va. LEXIS 169 (1936).

Election poll worker, working on the average of two days per year, held to be employee of Lynchburg. Huffman v. Electoral Board of City of Lynchburg, 57 O.I.C. 182 (1977).

Helicopter pilot was employee. Cottrell v. Hauthorne Aviation, Inc., 56 O.I.C. 71 (1975).

Pilot on charter flight for another company was an employee. Delp v. Mountain Empire Flying Service, 56 O.I.C. 94 (1975).

Window washer was an employee. Gower v. Williamsburg Village Associates, 57 O.I.C. 140 (1977).

Persons performing electrical work, plumbing and masonry work also worked regularly as carpenters or laborers were employees. Kennedy v. Wilson, 55 O.I.C. 207 (1973).

The fact that an employee accepts overtime on-call work with the employer does not change his status, where his work duties when responding to such calls remain the same. Sidam v. Manjac Construction Co., 76 O.W.C. 19 (1997).

Physician found to be employee of hospital and not independent contractor. Hernandez v. The Alexandria Hospital, 57 O.I.C. 172 (1977).

Clean-up worker was employee. Marcey v. Ray Burnette Volkswagen, Inc., 57 O.I.C. 235 (1977).

Compensation awarded claimant who was officially requested by county sheriff to assist in subduing outbreak at night football game and who was injured during melee. McGhee v. Louisa County, 57 O.I.C. 243 (1977).

Employee of contractor may be a statutory employee of owner. Where the owner undertakes to perform work with its own employees, such owner in fact makes such work part of his trade, business or occupation. Allen v. Sage, 47 O.I.C. 1 (1965).

The Commission looks to the established mode in which the employer does business to determine if it had regularly in service fewer than three employees. The employer amusement park employed over fifteen people during its operational season, but employed fewer than three during the off-season. The Commission found that the employer’s established mode of business was to operate an amusement park during the appropriate seasons, regularly employing more than three workers. The Commission held that the claimant’s status as a covered employee should not fluctuate merely because it occurred at the end of the season when the number of employees on the payroll dropped below the statutory minimum. Cornelius v. 15th Street Amusement Park, L.L.C., VWC File No. 203-03-83 (June 26, 2002).

EMPLOYER.

General:

Volunteer firefighter injured while attending training supplied by county; county not considered employer because not “using the service” of claimant at time of accident nor had it adopted resolution electing workers’ compensation coverage; county also not special employer because claimant not performing any service for county at time of accident. Catlett v. Caroline County Fire & Rescue, VWC File No. 206-13-68 (May 13, 2003).

An “all-states” endorsement carried by an employer on its workers’ compensation policy does not subject the employer to Virginia jurisdiction. Johnson v. M S Carriers, 77 O.W.C. 104 (1998).

Except as provided in § 65.1-29 to § 65.1-34 (now § 65.2-302 ), where a person engages another to perform work which is part of his trade, business or occupation or where a contractor or subcontractor subcontracts a part of the work which he has contracted to do for another, an employer within the intent of the Act is one between whom there exist with the injured or deceased worker a master and servant relationship, as is defined at common law. Craig v. Moran, 51 O.I.C. 64 (1969); Johnson v. Purdy Timber Co., Inc., 50 O.I.C. 205 (1968).

A builder constructing his own personal residence is still subject to the Workers’ Compensation Act as an owner, so long as such work is part of his trade, business, occupation, or profession. Hartley v. Garland E. Pugh Mech. Contr., 76 O.W.C. 129 (1997).

While restoration and remodeling were essential to the establishment of a bed and breakfast inn, such activities were not part of the regular or permanent operations of that business, or activities that employees of the bed and breakfast inn would normally be expected to perform. The question of what constitutes part of the trade, business, or occupation of an employer is not whether the activity is useful, necessary, or even absolutely indispensable to the employer’s business, since, after all, this could be said of practically any repair, construction or transportation service. The test is whether the indispensable activity is, in that business, normally carried on through employees rather than independent contractors. What a business does on a day-to-day basis provides a reasonably reliable indicator of its trade, business, or occupation. Waggle v. Lang, 75 O.W.C. 33 (1996).

Four elements usually exist: authority to select and engage, obligation to pay wages, power of dismissal, and power of control of the servant’s action. The power of control is the most significant element, the existence of the first three elements is not essential. The test is: the location of the power to control and direct the servant in the performance of his work. Phillips v. Brinkley, 194 Va. 62 , 72 S.E.2d 339, 1952 Va. LEXIS 207 (1952); Coker v. Gunter, 191 Va. 747 , 63 S.E.2d 15, 1951 Va. LEXIS 133 (1951); Brown v. Fox, 189 Va. 509 , 54 S.E.2d 109, 1949 Va. LEXIS 193 (1949); Crowder v. Haymaker, 164 Va. 77 , 178 S.E. 803 , 1935 Va. LEXIS 179 (1935).

A foreign country is not an “employer” under the Act. The Commission does not have jurisdiction to hear the claim of an employee working for the Federal Republic of Germany at its Arlington, Virginia, office. Lenassi v. Federal Republic of Germany, 70 O.I.C. 11 (1991).

Claimant was employer and not an employee; any rights he has against coal company for including himself on payroll report for workers’ compensation coverage must be adjudicated in forum other than Commission. Rife v. Jewell Coal & Coke Co., 53 O.I.C. 291 (1971).

A mere owner of an anticipated residence, not engaged in his trade or business, is not an employer subject to the Virginia Workers’ Compensation Act. Hartley v. Garland E. Pugh Mech. Contr., 76 O.W.C. 129 (1997).

Ownership of rental property as an investment is not a trade, business, or occupation that subjects an attorney to workers’ compensation claims. Eliason v. Boger Construction Company, 76 O.W.C. 385 (1997).

Assuming ownership of rental real estate could be considered a business of an attorney, construction of an addition to the attorney’s personal residence was not part of that business. Eliason v. Boger Construction Company, 76 O.W.C. 385 (1997).

Sole Proprietor:

A sole proprietor’s election to be covered for workers’ compensation purposes by his own policy of insurance was established by the inclusion of his salary in the total payroll and counting himself in the total number of employees. Marshall v. F. & M. Custom Builders, 62 O.I.C. 295 (1983).

There is no distinction between a self-employed person who voluntarily places himself under the Act and an employee of an employer who comes within the purview of the Act by operation of law except as to certain requirements regarding notice being given to the carrier. Therefore, a self-employed person who receives a communication of an occupational disease may pursue the claim against the employer where he was last injuriously exposed, i.e., himself and his insurance carrier. Fuller v. Ray Fuller Trucking, 71 O.W.C. 176 (1992).

A sole proprietor who elects to be covered by his own workers’ compensation insurance policy must give notice of an injury to the insurance carrier who then provides a panel of physicians to the injured employee. Any change in physicians must also be authorized by the insurance carrier. Crawford v. O.A. Crawford Heating & Air Conditioning, 67 O.I.C. 7 (1988).

Although notice to an insurance agent may satisfy the notice requirement of the Act under certain circumstances, the claimant in this case neither told the agent that his accident was work related nor gave the agent information from which a person could conclude that the accident was work related, and the Commission held that notice subsequently given was untimely. Marchiafava v. Lance Marchiafava, Inc., 76 O.W.C. 124 (1997).

Mere inclusion of the claimant’s name as the “named insured” on a policy of workers’ compensation insurance is an insufficient basis to claim that he is an “employee” under the Act. A sole proprietor is not considered an “employee” without a voluntary election by the proprietor to come within the coverage of the Act. Where the policy of insurance was apparently purchased by the proprietor to satisfy his own liability to the employees of uninsured subcontractors, and there was no evidence that the insurer was put on notice of the alleged election, the policy language was insufficient to establish that he was an “employee.” Parrish v. Media One, VWC File No. 199-09-41 (May 8, 2001).

Partners:

A partner cannot be an employee of the partnership. Weisz v. Anne Lee Candy Shop, 55 O.I.C. 372 (1973); Carey v. Self & Self, 45 O.I.C. 25 (1963); Fleming v. Fleming Bros. Coal Co., 30 O.I.C. 377 (1948); Berry v. Fray Berry Construction Co., 58 O.I.C. 21 (1979).

Joint venturers, even though in same management, cannot be employees. Carter v. Rowletts, 35 O.I.C. 482 (1953); 36 O.I.C. 80 (1954); Smith v. Smith, 35 O.I.C. 366 (1953); Hevener v. Highland Mutual Telephone Co., 32 O.I.C. 403 (1950); Gilbert v. Burgess, 17 O.I.C. 249 (1935); Osier v. Sentinel Security, 57 O.I.C. 278 (1976).

Although there is no generally accepted definition of joint venture, it is said to exist “when two or more persons combine in a joint business enterprise for their mutual benefit, with an express or implied understanding or agreement that they are to share in the profits or losses of the enterprise, and that each is to have a voice in its control or management.” Eliason v. Boger Construction Company, 76 O.W.C. 385 (1997).

Where an attorney used a contractor to build an addition to his personal residence, the Commission held that this did not amount to an enterprise in which profits and losses would be generated, and the relationship of the attorney and the contractor was not one of joint adventurers. Eliason v. Boger Construction Company, 76 O.W.C. 385 (1997).

When partnership is dissolved the obligations of partnership are not terminated. Echols v. Drs. Riley & Natvig, 56 O.I.C. 102 (1974).

Independent Contractors:

Claimant hired to perform carpentry and framing held to be independent contractor. “[A] client that hires an independent contractor retains the right to require the work be performed according to industry and governmental standards. The client determines if the end result is suitable for its needs. If the client finds the work lacking, it may end the business relationship and find another independent contractor to accomplish its goals. By doing so, the client acts as any other consumer in the marketplace, and this does not change the nature of the relationship into one of employer and employee.” Petrone v. Best Bid, Inc., JCNVA02000016244 (Jan. 22, 2015).

Persons occupying the status of contractors and subcontractors are not employees. See Kramer v. Kramer, 199 Va. 409 , 100 S.E.2d 37 (1957), for a discussion of cases .

An employer who uses independent contractors rather than employees is excused from numerous legal, tax and insurance obligations. However, the mere intention to label workers as “independent contractors,” even a mutual intention, is not enough to avoid these obligations. The employer must give up substantial control over the contractor’s work activities, while the basic decisions are often left to the contractor. The independent contractor relationship is frequently characterized by a lack of continuity and exclusivity. Claros v. G & S Construction, Inc., 78 O.W.C. 153 (1999).

An employer often hires experienced employees who do not require direct supervision and instruction, and it is the right of the employer to exercise control over the conduct of the worker, even though it is only held in reverse, that determines whether the worker is an employee or an independent contractor. Sidam v. Manjac Construction Co., 76 O.W.C. 19 (1997).

Whether a person is an excellent craftsman, exercising independent judgment in the means of carrying out the work, is not determinative of independent contractor status. Other factors must be considered. Employees may include individuals of high skill as well as moderate or low skills. Computer programmers, accountants, lawyers, and doctors may qualify as “employees” if they are involved in an employment relationship. Many professional employees work unsupervised, supervise others, and exercise independent judgment. Stone v. Broad Run Builders, Inc., VWC File No. 196-99-02 (June 7, 2001).

An employer cannot merely designate or agree that the worker is an independent contractor in derogation of the actual relationship established by the facts of a particular case, and the Commission must look behind such agreement to determine the status in fact. Sidam v. Manjac Construction Co., 76 O.W.C. 19 (1997).

In determining whether a person is an employee or an independent contractor, the Commission examines four factors: the selection and engagement of the worker; the payment of wages; the power of dismissal; and most significantly, the power of control of the employee’s actions. Eliason v. Boger Construction Company, 76 O.W.C. 385 (1997); Sidam v. Manjac Construction Co., 76 O.W.C. 19 (1997).

An independent contractor is not an employee or statutory employee merely because he performs work in the trade, business occupation, or profession of the employer which is usually performed by employees, if the employer retains no right to control the manner in which the work is performed. Reynolds v. Yellow Cab Co., 75 O.W.C. 76 (1996).

Fact that claimant was paid on hourly basis from which social security and federal income taxes were deducted is not controlling in determining employment status. Claimant was not employee. Hogge v. H & S Corp., 53 O.I.C. 139 (1971).

The fact that the employer reported the claimant’s earnings on a 1099 form rather than a W-2 form does not make it just as likely that the claimant was an independent contractor. Powell v. Up Front Painting, 76 O.W.C. 55 (1997).

Where the evidence tending to prove that the claimant is an independent contractor is not clear, and the power to control is retained by the alleged employer and was exercised in that relationship, the relationship will be held to be that of an employer and employee. Sidam v. Manjac Construction Co., 76 O.W.C. 19 (1997).

An independent contractor is personally covered as an employee only if he, the statutory employer, and the workers’ compensation carrier all agree in writing to include the independent contractor within the coverage. Reynolds v. Yellow Cab Co., 75 O.W.C. 76 (1996).

Workers’ compensation insurance purchased to cover employees of subcontractors does not require that coverage be extended to the subcontractors themselves. McDonough v. Wisco Aluminum Corp., 75 O.W.C. 263 (1996).

Even though a percentage of the gross amount due was withheld for workers’ compensation purposes, the claimant was found to be an independent contractor and not an employee. Walsh v. Lewis G. Holt, 63 O.I.C. 364 (1984).

Where the evidence showed that the claimant had no contract for hire, could come and go as he pleased, hire labor at his discretion, use his own tools, and work unsupervised, this did not indicate the requisite control necessary to establish an employment relationship between the claimant and the alleged employer. Eliason v. Boger Construction Company, 76 O.W.C. 385 (1997).

Claimant who shared proceeds of work with another, after expenses for gas and employee wages and workers’ compensation insurance were deducted, was a joint subcontractor and not an employee. A joint subcontractor cannot be the statutory employee of a general contractor. McDonough v. Wisco Aluminum Corp., 75 O.W.C. 263 (1996).

The claimant who leased tractors to a trucking company and was injured while driving one of the leased tractors for that company was found to be an independent contractor. Bray v. U.S. Lines Trucking, Inc., 67 O.I.C. 12 (1988).

The claimant, an owner/operator who hauled under a lease agreement, was an independent contractor inasmuch as there was no power to dictate the means and method by which his tasks were accomplished. Hamilton Trucking v. Springer, 10 Va. App. 710, 396 S.E.2d 379, 7 Va. Law Rep. 211, 1990 Va. App. LEXIS 151 (1990).

Airplane pilot engaged in fish spotting was an independent contractor. Jacobsen v. Menhaden Co., Inc., 38 O.I.C. 129 (1956) (appeal denied).

Claim for death benefits denied in finding that deceased was acting as an independent contractor rather than employee at the time of the helicopter crash which resulted in his death. Seals v. Tom-V Mining, Inc., 57 O.I.C. 315 (1977).

Golf caddy under control of caddy-master at all times when not actually in service of a member is an employee of golf club. That members pay caddy directly is not determinative of employer-employee relationship. Shepperd v. Williamsburg Restoration Inc., 40 O.I.C. 133 (1958).

Whether a person is an “employee” or an “independent contractor” is governed by common law principles. The Commission looks generally to four factors: the selection and engagement of the worker; the payment of wages; the power of dismissal; and, most significantly, the power of control. The issue of control includes factors such as which party invests in the facilities used in the work; whether the work is part of the principal’s regular business; and the permanency of the relationship. The threshold level of control necessary to find employee status is generally lower when applied to professional services than when applied to nonprofessional services. The Commission held from the facts of this case that the pastor was an employee of the local church, where the church provided all the facilities, staff, and equipment used by the pastor; where the relationship was long term and not transitory; where the pastor worked full time for the local church; where such work was an integral part of the church operation, and central to the church’s fundamental purpose; where the pastor served on the church’s governing board; and where the local church made recommendations to the parent church regarding placement and termination of the pastor’s employment. Harper v. Lomax A.M.E. Zion Church, 75 O.W.C. 109 (1996).

Labor Brokers:

Employee who was hired by staffing company to work for engineering firm, where he was injured, considered employee of engineering firm; employee worked at firm for several months, without regular contact with staffing company, and firm exercised exclusive control over employee’s daily activities; engineering firm considered special employer. Price v. Reliance Staffing Serv., VWC File No. 211-70-30 (Dec. 8, 2003).

An employee service contract cannot transfer workers compensation liability to another party where the employer maintains full control over the employee. Speas v. Omega Interiors, Inc., 71 O.W.C. 21 (1992).

See UPI v. Frye, 6 Va. App. 589, 371 S.E.2d 34 (1988); LMI Insurance v. James Foley et al., (Unpublished Court of Appeals Record # 2670-96-4 and 2671-96-4) (July 29, 1997).

Surety:

Where the employer defaults on his contract and his surety company becomes responsible for completion thereof, it is liable for payment of compensation to a worker of the contractor who is injured while engaged in work directed towards the performance of obligation to complete. National Surety Co. v. Rountree, 152 Va. 150 , 147 S.E. 537 , 1929 Va. LEXIS 157 (1929).

The definition of employer includes insurer, so that notice to insurer constitutes notice to employer. Dowdy v. Giant of Va., Inc., 210 Va. 408 , 171 S.E.2d 254, 1969 Va. LEXIS 257 (1969).

The Commonwealth, and not the particular department by which worker is employed, is the employer under the Act. Department of Game & Inland Fisheries v. Joyce, 147 Va. 89 , 136 S.E. 651 , 1927 Va. LEXIS 287 (1927); Smith v. State Hwy. Comm'n, 131 Va. 571 , 109 S.E. 312 , 1921 Va. LEXIS 47 (1921).

When governmental entities and public utilities are involved, it is not simply what they do that defines their trade, business or occupation. What they are supposed to do is also a determinant. A governmental entity has duties, obligations, and responsibilities imposed upon it by statutes and charter provisions. Consequently, local governments’ trade, business, or occupation must be judged according to the public duties they are authorized and empowered by legislative mandate to perform. Williams v. Portsmouth Redev. & Hous. Auth., 76 O.W.C. 465 (1997).

Acceptance and administration of a federal grant does not make all those associated with the grant employees of the local governmental entity. Each determination of whether a grant program is part of an entity’s trade, business or occupation must be done on a case-by-case basis. Williams v. Portsmouth Redev. & Hous. Auth., 76 O.W.C. 465 (1997).

The Portsmouth Authority [PRHA] had participated for ten years in a federal grant program intended to help eliminate drug use by teenage residents. The funds were used by PRHA to provide buses to transport the teenagers to athletic events in a program administered by a volunteer worker selected by PRHA. The volunteer hired the claimant as a bus driver, subject to the approval and subsequent control of PRHA, through time sheets submitted by the volunteer supervisor. The Commission found from the long-term participation of PRHA in the federal grant program, together with its fiscal oversight and administration of the program, that the program was a function of the trade, business or occupation of PRHA, and that the claimant was therefore an employee of the governmental entity. Williams v. Portsmouth Redev. & Hous. Auth., 76 O.W.C. 465 (1997).

A foreign country is not an “employer” under the Act. The Commission does not have jurisdiction to hear the claim of an employee working for the Federal Republic of Germany at its Arlington, Virginia, office. Lenassi v. Federal Republic of Germany, 70 O.I.C. 11 (1991).

FILED.

Change in condition claim filed by certified mail on last date before statute of limitations ran was timely. Wheeler v. Giant Food, Inc., No. 070, VWC File No. 203-36-16 (March 25, 2005).

A certified letter must be posted at the United States Post Office in order to be considered “filed.” The marking of a letter as “certified mail” and placing in a mail box is considered filed only when received by the Commission. Smallwood v. Overbrook Landscaping, Inc., 70 O.I.C. 56 (1991).

In rejecting an employer’s application for failing to pay compensation pursuant to Rule 1.4, the Commission held that a facsimile transmission is not “filed” until actually received by the Commission. Sistare v. W. Logan Rowse, 73 O.W.C. 54 (1994).

In § 65.2-101 , the General Assembly clearly defined how a document is to be “filed” with the Commission. Properly “filing” a claim within the statute of limitations of § 65.2-601 is a jurisdictional requirement, and the Commission has no power to accept an alternate filing that is untimely. Claimant’s counsel chose to use a private delivery service to attempt to file a claim within the statue of limitations. Due to a national emergency that brought all airborne shipping to a halt, the claim was delayed in transit, arriving after the statute of limitations had run. The Commission held that the claimant chose to use an alternate delivery method at her own risk, noting that the claim would have been automatically “filed” when delivered to a local post office and placed into certified mail. Hundley v. Williamsburg Community Hospital, VWC File No. 197-64-42 (February 5, 2002).

INJURY BY ACCIDENT.

“Accident”:

Injuries sustained by claimant in an elevator that travelled up and down, jerked and erratically moved for over 30 minutes were compensable injuries by accident arising out of claimant’s employment. Farmer v. Macy’s, JCN VA00001088061 (Sept. 14, 2017).

Where a compensable work accident resulted in a fusion at L5-S1 and claimant subsequently felt a loud “pop” while sitting, the resulting disc herniation at L4-5 is a compensable consequence of the original injury rather than a new accident because the fusion resulted in a weakening at the L4-5 level. Gaskins v. W. L. McKendree & Company, Inc., VWC File No. 214-82-19 (Sept. 26, 2006).

Employee’s injury caused by using vacuum cleaner arose out of employment; employee proved that injury was sudden and unexpected; whether work activity was “innocuous” not relevant to whether injury caused by specific, work-related physical task. Spruill v. Norfolk School Bd., VWC File No. 208-59-15 (Apr. 8, 2003).

Layman’s use of term “accident” differs from the legal definition. Claimant’s description of events is the pertinent aspect rather than his response to inquiry of “accident” or injury. Caddy v. Sherman Construction Co., 57 O.I.C. 72 (1976).

Where a claimant who was advised by his treating physician to avoid employment exposing him to electrical shock returns to such employment and suffers a shock, there has been no injury by accident since the subsequent difficulties were foreseen and not an accident. Miller v. Dixon Lumber Company, 67 O.I.C. 71 (1988) (see also Dobbins v. Contractors Equipment & Supply Co. (appeal denied), 58 O.I.C. 104 (1979); Bragg v. Buchanan General Hospital, Inc., 59 O.I.C. 30 (1980)).

Because the Act does not contemplate benefits for injuries voluntarily inflicted, the Act does not allow recovery of compensation where the claimant’s disability was the expected result of an activity that violated his doctor’s specific restrictions. In this case, the treating physician did not specifically issue any work restrictions to the claimant. Rather, the physician’s comments to the claimant about changing his occupation were advisory, not prohibitory, and his continued work as an electrician did not violate any specific restrictions. Wong v. New View Electrical, Inc., 79 O.W.C. 120 (2000).

Where a claimant suffered a back injury while doing heavy manual work in contradiction of medical restrictions imposed upon him after discharge from the hospital, his subsequent disability was the expected result of his failure to obey medical advice and not a compensable injury by accident. Ellis v. City of Norfolk, 68 O.I.C. 47 (1989).

Compensation benefits were denied to the employee who engaged in a prohibited activity by assisting in lifting a heavy stove despite specific instructions from his supervisor to do no lifting because of a prior back injury. Sluss v. Scott Farmers Cooperative, Inc., 71 O.W.C. 133 (1992).

An application for carpal tunnel syndrome as a result of an industrial accident, and an application for the same condition as an occupational disease are not barred by res judicata since they set forth different causes of actions derived from different circumstances, different medical diagnoses and involved different legal foundations. Wood v. Allison Apparel Marketing, Inc., 11 Va. App. 352, 398 S.E.2d 110, 7 Va. Law Rep. 1038, 1990 Va. App. LEXIS 216 (1990).

An employee who is injured in a work-related accident, and whose injuries aggravate or exacerbate a pre-existing condition resulting in disability, is entitled to compensation. Alexander v. Russell Stover Candies, 76 O.W.C. 448 (1997).

Although the claimant suffered a temporary increase in symptoms after a later incident, there was essentially the same degree of effusion and range of motion as before the incident, and there was no change in work restrictions or medical treatment because of that incident. The Commission held that the later incident was not a new accident, but only an aggravation of her earlier work accident. McBride v. Va. Dept. of Transportation, 76 O.W.C. 227 (1997).

Injury by Accident.

Also see cases under “Arising Out of and In Course of Employment” below.

Traumatic injury suffered during the course of a multi-hour training session was a discreet and specific injury and the training session provided the necessary rigidity of temporal precision to constitute one event. Bandy v. Dept. of Motor Vehicles, JCN VA00001370700 (Nov. 2, 2018), aff’d. No. 1878-18-2 (Ct. App. of Va., April 30, 2019) (unpublished opinion); Sclafani v. City of Charlottesville, JCN VA00001340217 (Nov. 29, 2018).

Claim held compensable where claimant felt a strain when lifting a projector and moving a desk. Case distinguishable from Lysable Transport, Inc. v. Patton, 57 Va. App. 408, 702 S.E.2d 596 (2010), because claimant did not describe feeling a strain when she either lifted the projector or lifted the desk but rather felt a strain, in the same part of her body, when she lifted both objects. Although she felt the same sensation on two occasions, injury was not the result of repetitive trauma. An identifiable incident occurred that caused an obvious sudden mechanical or structural change in her body when she lifted the projector. While lifting the desk may have exacerbated the initial injury, the initial injury nonetheless occurred. That claimant experienced severe pain several hours after the initial strain was not fatal to her case. Colyer v. Wise Co. Pub. Sch., JCN VA00001117556 (Oct. 25, 2016).

In order to recover on a workers’ compensation claim, a claimant must prove (1) an injury by accident, (2) arising out of and (3) in the course of his employment. The burden is upon the claimant to prove the foregoing by a preponderance of the evidence. Al-Janabi v. MCI Communications Corp., 76 O.W.C. 290 (1997); Morgan v. City of Norfolk School Board, 76 O.W.C. 359 (1997); Raynor v. Va. Department of Health, 76 O.W.C. 308 (1997).

To constitute an injury by accident, it is not necessary that there should be an extraordinary occurrence in or about the work engaged in. The evidence is sufficient to establish an injury by accident even though the degree of exertion is usual and ordinary and the employee had some predisposing physical weakness. Lynch v. Virginia Veterans Care Center, 78 O.W.C. 32 (1999).

The claimant must prove by a preponderance of the evidence that he suffered an injury by accident. Even if the injury made its appearance suddenly, at a particular time and upon a particular occasion, the claimant still must prove that the cause of the injury was an identifiable incident or sudden precipitating event and that it resulted in an obvious sudden mechanical or structural change in the body. Al-Janabi v. MCI Communications Corp., 76 O.W.C. 290 (1997).

A medical procedure [tuberculin injection] required by the employment clearly occurs within the scope of and arises out of the employment duties. Where, as a natural consequence of the procedure, the claimant’s skin is broken, and the foreign substance injected into his body causes an adverse reaction, the procedure constitutes an “accidental” injury, because the injection results in an unintended consequence. Dempsey v. Henrico County Fire Dept., 79 O.W.C. 202 (2000).

An employer is liable for preventative medical treatment if the employee suffers a specific industrial accident that leads to the need for such treatment, as a result of the “accident”. However, where a tuberculin skin test merely identifies a potential need for medical treatment, and there is no evidence that the test caused the underlying condition for which such treatment is required, the employer is not liable for a six-month course of treatment to monitor liver function because of a concern that the employee had tuberculosis. Rather, the employer is responsible only for treatment, if any, of the swelling and redness directly caused by the test. Dempsey v. Henrico County Fire Dept., 79 O.W.C. 202 (2000).

The aggravation of an old injury or pre-existing condition is not per se tantamount to a new injury. To be a new injury, the incident giving rise to the aggravation must, in itself, satisfy each of the requirements of an injury by accident. McBride v. Va. Dept. of Transportation, 76 O.W.C. 227 (1997).

An “injury by accident” has three components: (1) an identifiable incident; (2) a sudden mechanical or structural change in the body; and (3) a causal connection between the incident and bodily change. Raynor v. Va. Department of Health, 76 O.W.C. 308 (1997).

For there to be a compensable “injury by accident” an employee must prove that the injury was caused by “an identifiable incident or sudden precipitating event that results in an obvious, sudden mechanical or structural change in the body.” Injuries from repetitive trauma, continuing mental or physical stress, or other cumulative events, as well as injuries sustained at an unknown time do not satisfy this requirement. Morris v. Morris, 238 Va. 578 , 385 S.E.2d 858, 6 Va. Law Rep. 756, 1989 Va. LEXIS 175 (1989).

To be compensable as an injury by accident, a purely psychological injury must be causally related to a physical injury, or to a sudden shock or fright arising in the course of employment. Owens v. Dept. of Transportation, 77 O.W.C. 257 (1998).

Although a claimant must prove a “sudden precipitating event” that caused the injury, it is not necessary that there should be an extraordinary occurrence in or about the work engaged in. “Sudden” as used in this context means an “immediate” event that causes or precipitates an injury; “sudden” is not used here to connote an unexpected consequence. Thus, “sudden precipitating” event is one that “immediately” causes an injury, as distinguished from an injury that appears or occurs gradually. Morgan v. City of Norfolk School Board, 76 O.W.C. 359 (1997).

The Commission held that the claimant, who merely developed a soft tissue injury or tibia plateau tear after kneeling for 20-30 minutes, without any sudden precipitating incident, or any sudden mechanical or structural change in the knee, did not prove an injury by accident. Rottier v. City of Alexandria School Board, 78 O.W.C. 232 (1999).

The specific incident that caused the employee’s sudden mechanical or bodily change must be viewed in the aggregate, not in its component parts. Blizzard v. Super Fresh Food Markets, Inc., 75 O.W.C. 168 (1996).

Pain does not have to be contemporaneous with the accident to be an injury by accident. Where the claimant consistently related her symptoms to the work activity, the mere fact that she did not experience pain until some hours later does not defeat the “injury by accident” claim. Dodd v. Medical Care Center, 76 O.W.C. 486 (1997).

The claimant established an injury by accident when he experienced severe back pain simultaneously with rising from a bent over position handling a 100-pound drum of chlorine thereby aggravating a pre-existing condition. Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 409 S.E.2d 824, 8 Va. Law Rep. 1100, 1991 Va. App. LEXIS 269 (1991).

An injury by accident was established when the claimant who was carrying 70 pounds of tools, coughed and immediately felt back pain. Hartsoe v. Central Boiler, Inc., 65 O.I.C. 73 (1986).

Benefits were awarded to an employee who lifted a 100-pound furnace, leaned over it for approximately four to five minutes to cut and fit it into place and was unable to stand up as the result of an acute lumbosacral strain. The employee’s action required unusual exertion and involved a risk of his employment specific to the nature of the job. Brown v. Caporaletti, 12 Va. App. 242, 402 S.E.2d 709, 7 Va. Law Rep. 2126, 1991 Va. App. LEXIS 70 (1991).

Compensation benefits were awarded to an employee who felt a sharp pain upon arising after working one-half hour sitting on a stool in a bent position. Whitt v. Southeastern Virginia Training Center, 70 O.I.C. 120 (1991).

Compensation benefits were denied to an employee who felt a slip in his back as he attempted to stand up after working for a period of time in a crouched position welding a water line. Colston v. Union Camp Corporation, 70 O.I.C. 126 (1991).

Credible testimony of the claimant may be sufficient to establish an injury by accident unimpeached by the medical records, even if the medical histories refer only to general repetitive tasks the claimant performed when the accident occurred. Mullins v. Dickenson County Medical Center, 74 O.W.C. 176 (1995).

The claimant injured her neck and shoulders while helping to restrain a sedated dental patient over a period of twenty minutes. The Commission held that the incident described was sufficiently discrete and precise to constitute a compensable injury by accident. Galeano v. Northern Virginia Training Center, 76 O.W.C. 191 (1997).

The claimant and a coworker lifted a large metal table weighing about 100 pounds, and carried it approximately 50 yards. She did not feel pain until later that evening. The Commission found that the act of carrying one particular table at a specific time for a short distance constituted a specifically defined task, i.e., a discrete activity. The activity did not extend over any significant time period, and the act of carrying the table satisfied the requirement of a sufficiently identifiable incident. Dodd v. Medical Care Center, 76 O.W.C. 486 (1997).

Burden of Proof:

Where a physician’s statement as to causation is one of possibility, not probability, and the possibility of a causal connection does not rise to the level of an opinion to a reasonable degree of medical probability, it is insufficient to satisfy the claimant’s burden of proof. The preponderance of evidence must show that work was the cause of the disability under the more probable than not rule. Parker v. Wal-Mart Associates, Inc., JCN VA00000223428 (Aug. 31, 2011).

Claimant’s testimony need not be corroborated, but must be credible and in accord with normal events. Walsh Constr. Co. v. London, 195 Va. 810 , 80 S.E.2d 574 (1954); Warren v. Bishop & Settle Construction Co., 57 O.I.C. 366 (1977).

Commission has discretion to give probative weight to hearsay statements. Williams v. Fuqua, 199 Va. 709 , 101 S.E.2d 562, 1958 Va. LEXIS 116 (1958).

Where the claimant is not inherently incredible, the Commission will look to his testimony and the medical record to determine whether he has met his burden of proving that a condition of the employment caused the accident. Sinkfield v. Aerotech Contract Engineering Serv., 76 O.W.C. 493 (1997).

Where the treating physicians identified no independent risk factors for a retinal detachment injury except for the history of accident given by the claimant, the Commission found the evidence sufficient to establish that the trauma was caused by the work related fall. Hall v. A. Bertozzi, Inc., 76 O.W.C. 415 (1997).

A claim will not be denied simply because an employee is confused as to the exact date of the accident if the Commission is satisfied that an injury by accident occurred. Mullins v. Dominion Coal Corporation, 68 O.I.C. 43 (1989) (see also Tiller v. Alexandria Lithograph Co., 60 O.I.C. 451 (1981)).

When claimant identified specific movement or action taken at a particular time at work, claim should not be defeated because he is unable to distinguish whether accident happened on one day or another. Davis v. Clinchfield Coal Company, 60 O.I.C. 127 (1981).

Pain from an injury need not be contemporaneous with the incident to establish a causal connection, and a lapse of eight days between the incident and a medical report of treatment is not fatal to the claim. Akisi v. Harwood Foundation, Inc., 75 O.W.C. 298 (1996).

If a claimant’s testimony, taken as a whole, does not make it appear clearly and unequivocally that the case is without merit, the claimant’s case is not fatally damaged. The claimant’s testimony, when viewed in its entirety established an identifiable incident at a reasonably definite time. Seven-up Bottling Company v. Moseley, 230 Va. 345 , 335 S.E.2d 272 (1985).

The Commission relies primarily but not entirely on medical evidence in order to determine the cause of an injury. Hall v. A. Bertozzi, Inc., 76 O.W.C. 415 (1997); Sinkfield v. Aerotech Contract Engineering Serv., 76 O.W.C. 493 (1997).

An unequivocal medical opinion that the accident caused the injury is not necessary for the claimant to carry her burden of proof of an injury by accident. Dodd v. Medical Care Center, 76 O.W.C. 486 (1997).

A claimant does not have to establish the identity of a specific item which struck him in the eye but must prove only that he received an injury by accident arising out of and in the course of his employment. Norfleet v. Williams, 66 O.I.C. 18 (1987).

Foreman on construction site struck in eye by unknown object does not bear burden of proving what object directly or by ricochetting in the work environment caused injury. Garrett v. Harry M. Brown Co., 51 O.I.C. 101 (1969).

Negligent Acts:

Negligence by an employer or an employee is not a factor in determining entitlement to benefits under the Workers’ Compensation Act. An employer’s negligence in failing to provide a safe work place is not a basis for an award of benefits under the Act. Shumate v. Marion Diner, 70 O.I.C. 100 (1991).

If an employee did not foresee the result of his deliberate act, even though it was an act of gross negligence or stupidity on his part, such result should be regarded as accidental. Tyree v. Commonwealth, 164 Va. 218 , 179 S.E. 297 (1935); Burkhardt v. Whippich, 55 O.I.C. 57 (1973).

A claimant’s negligence is not a bar to recovery under the Act. Although the claimant may have selected a dangerous means to reach his destination, that does not defeat his claim. Sirk v. M. G. Apartments, 63 O.I.C. 307 (1984).

While a claimant may be guilty of negligence in choosing a ladder too short or standing on the top rung, such action was not a bar to his claim if his action could be considered poor judgment. However, compensation was denied because the claimant’s ethanol level of .26 was found to have impaired his judgment and made him more likely to fall. Brown v. Powell’s Paint Co., Inc., 68 O.I.C. 113 (1989).

Heart Attack:

The evidence failed to establish an injury by accident where the claimant had a preexisting cardiovascular disease and was subject to multiple risk factors, one of which was work-related tension. Willis v. Bemiss Equipment Corporation, 65 O.I.C. 124 (1986).

Death:

The death presumption does not apply where a person is unable to recall the accident and dies a day later. Tweed v. Newport News Shipbuilding & Dry Dock, VWC File No. 227-87-41 (June 26, 2007).

Based on a reasonable inference, the decedent who was discovered dead at his place of employment next to a refrigerated truck was found to have suffered an injury by accident. Stone v. Gwaltney of Smithfield, 65 O.I.C. 102 (1986).

In denying benefits where the decedent was found dead next to his truck after mowing grass, the Commission found that the evidence failed to demonstrate a significant exertion or particular strenuous effort occurring at an identifiable time. Hall v. John T. Williams Association, Inc., 70 O.I.C. 107 (1991).

Hearing Loss:

The claimant, who had pre-existing hearing loss, suffered a compensable injury by accident when gunfire resulted in hearing loss. In determining claimant’s hearing loss from the accident the normal or non-material 26 decibel is subtracted from the pre-existing hearing loss. This number is then subtracted from the post-accident hearing loss. The resulting decibel loss is then compared to the chart in Rule 12 to determine the percent of hearing loss related to the compensable work accident. Macudzinski v. Omniplex World Service, Inc., VWC File No. 218-73-91 (Feb. 21, 2007).

Psychological and Emotional Disorders:

The claimant, who suffered shortness of breath and an acute anxiety/panic reaction after the backhoe he was operating slipped on the side of a hole causing him to fear striking exposed power lines, proved a compensable psychological injury. Berry v. City of Richmond Public Utilities, VWC File No. 226-69-44 (June 26, 2007).

The claimant’s depression that developed from pain relating to injuries incurred in a work accident is a compensable consequence of the original injury and as such is a change of condition governed by § 65.2-708 which requires that a claim be filed within two years from the date compensation was last paid pursuant to an award. Brown v. Ruby Tuesday’s Inc., VWC File No. 215-94-55 (June 11, 2007), On remand deputy commissioner on Oct. 19, 2007 found for claimant. By March 6, 2008 review opinion the commission affirmed(On remand deputy commissioner on Oct. 19, 2007 found for claimant. By March 6, 2008 review opinion the commission affirmed).

The common denominator for psychological injuries resulting from a sudden shock or fright, in the absence of physical injury, is that the event precipitating the sudden shock or fright is something out of the ordinary in terms of the injured employee’s work duties, something so dramatic or frightening so as to shock the conscience. Owens v. Dept. of Transportation, 77 O.W.C. 257 (1998).

An emergency medical technician firefighter who experienced post traumatic stress disorder symptoms several days after administering medical attention to a severely injured man inside a wrecked automobile was denied compensation benefits on the basis that the sudden mechanical or structural change in the body element of an injury by accident was not established. Chesterfield County/Fire Department v. Dunn, 9 Va. App. 475, 389 S.E.2d 180, 6 Va. Law Rep. 1384, 1990 Va. App. LEXIS 31 (1990).

Compensation benefits were awarded to an employee who after spraying insecticides into his face and eyes subsequently developed a panic attack disorder. Emotional harm following physical injury is compensable even when the physical injury does not directly cause the emotional consequence. Seneca Falls Greenhouse & Nursery v. Layton, 9 Va. App. 482, 389 S.E.2d 184, 6 Va. Law Rep. 1393, 1990 Va. App. LEXIS 32 (1990).

Benefits were awarded to an employee who suffered a post traumatic stress disorder after sustaining a sudden shock or fright from being thrown through the air by an explosion. The principles in Burlington Mills Corp. v. Hagood, 177 Va. 204 , 13 S.E.2d 291 (1941), were relied upon to establish a compensable injury by accident. Hercules, Inc. v. Gunther, 13 Va. App. 219, 412 S.E.2d 185 (1991).

Stroke related to collapse of building found compensable. Hopkins v. American Furniture Co., 51 O.I.C. 126 (1969).

An incident resulting in a neurosis causing an incapacity for work is an injury, even though it is of functional origin with no visible lesion. Beverley v. Omohundro Elec. Co., 33 O.I.C. 532 (1951); Gatewood v. Gatewood, 33 O.I.C. 431 (1951).

The claimant’s depression was cumulative in nature and did not meet the injury by accident test of a sudden giving away or herniation of the body. Turnage v. The Retreat Hospital, 68 O.I.C. 105 (1989).

The mere fact that offensive words are spoken at work is not sufficient to constitute an accident as contemplated by the Workers’ Compensation Act unless they are of such magnitude as to place the listener in fear for personal safety or so clearly outrageous and unusual as to shock the collective conscience. Mitchell v. City of Newport News, 65 O.I.C. 126 (1986).

Compensation benefits were denied to an employee who suffered psychiatric hospitalization after a shouting match with the supervisor upon a finding that the evidence failed to establish a sudden shock or fright or physical injury. Teasley v. Montgomery Ward & Company, Inc., 14 Va. App. 45, 415 S.E.2d 596, 8 Va. Law Rep. 2327, 1992 Va. App. LEXIS 77 (1992).

Compensation benefits were denied to a special education teacher who suffered severe acute emotional distress during two meetings with student’s parents arranged by the principal to resolve problems. McClain v. Manassas Park City Schools, 68 O.I.C. 110 (1989).

In denying compensation benefits to a claimant who suffered a major depression episode after termination from her employment, the Commission found that it was not unusual for managerial decisions involving evaluation, demotion, promotion, transfer, and termination of employees to cause stress or depression; however, there was no jurisdiction under the Virginia Workers’ Compensation Act. The forum for resolving such disputes involved grievance procedures and contractual remedies. Turnage v. The Retreat Hospital, 68 O.I.C. 105 (1989).

When depression and anxiety are causally related to a traumatic on-the-job injury such as an injury incurred during a robbery, compensation may be awarded on the basis of injury by accident. Harris v. N W S Employees Federal Credit Union, 65 O.I.C. 131 (1986).

Traumatic neurosis caused by bank robbery; defendant responsible for hospitalization and evaluations. Willier v. Arlington Trust Co., Inc., 55 O.I.C. 379 (1973).

Robbery involved no physical impact, but shock or fright resulted in compensable disability. Huzzey v. Merrimac Motel Corp., 55 O.I.C. 187 (1973).

Exposure To Elements:

A worker suffering harmful consequences from an exposure to peculiar degree by reason of his work need not prove that the exposure was instantaneous. Exposure to unusual heat or cold on one occasion may cause an injury by accident under the Act. Byrd v. Stonega Coke & Coal Co., 182 Va. 212 , 28 S.E.2d 725 (1944); Watts v. Rockbridge Motor Co., Inc., 16 O.I.C. 275 (1934); Richardson v. Ratcliffe & Tanner, Inc., 8 O.I.C. 1028 (1926); Odom v. Fass, Inc., 8 O.I.C. 322 (1926).

An employee is entitled to recover under a theory of injury by accident if his injuries, not a disease, were the immediate consequence of exposure to a greater hazard by reason of his employment than that to which he otherwise would have been exposed. Where the evidence did not show the claimant was exposed to extraordinary weather conditions, nor that his activity was distinguishable from other employees who are required to work outside, the Commission found his work did not expose him to any additional hazard or risk of injury. Bennett v. Centex-Bateson Const. Co., 76 O.W.C. 98 (1997).

An injury caused by heat exhaustion or other weather-related conditions is generally compensable only when the environmental conditions are extraordinary. While the claimant experienced profuse sweating, and the medical records suggested he suffered from dehydration from heat and excessive sweating, he did not offer evidence of extraordinary environmental factors at work. He did not testify that the heat caused him to become dizzy and fall; there was no definitive evidence in the record regarding the weather conditions on the date of the accident; and testimony suggested that the day was neither hot nor cold. Therefore, the claimant failed to prove that his fall arose out of a risk of employment. Turner v. Turner’s Concrete Contracting, VWC File No. 194-75-07 (January 10, 2001).

Frostbite or Cold Exposure:

Exposure to cold or hot temperatures resulting in conditions such as frostbite or heatstroke may constitute an injury by accident. Green v. Southern Express, 76 O.W.C. 93 (1997), aff’d, Southern Express v. Green, 257 Va. 181 , 509 S.E.2d 836 (1999), affirming 26 Va. App. 439, 495 S.E.2d 500 (1998).

Compensation was awarded to a refuse collector who suffered frostbite after working without gloves. The Commission’s findings demonstrated that the weather conditions were unusual, that the injury resulted from conditions of employment at a definite time and that the employee was exposed “to hazards to a degree beyond that of the public at large.” Robinette v. Kayo Oil Company, 210 Va. 376 , 171 S.E.2d 172 (1969) was distinguished. Grayson Refuse Service, Inc. v. Davis, No. 0250-85 (Ct. of Appeals, May 21, 1986).

Exposure one particular afternoon to cold temperature while unloading frozen carload of coal is injury by accident. Nellum v. Phelps, 43 O.I.C. 231 (1961).

Newspaper boy exposed to freezing weather, frostbite held compensable. Ippolito v. Richmond Newspapers, Inc., 55 O.I.C. 190 (1973).

Compensation benefits were awarded to the claimant who suffered frostbite during extensive exposure to extreme cold temperatures. Burrell v. Washington Metropolitan Area, 71 O.W.C. 168 (1992).

Compensation benefits were awarded to the employee who suffered a cold-induced vascular or migraine headache syndrome after hanging conduit in a freezer over a two-hour period, part of which time a blower was directed at his face. Stafford v. Richfood, Inc., 71 O.W.C. 121 (1992).

Claimant who suffered from chilblains, a condition associated with cold exposure accompanied by dampness, during work over a period of 3 - 4 hours has proved an injury by accident. Green v. Southern Express, 76 O.W.C. 93 (1997), aff’d, Southern Express v. Green, 257 Va. 181 , 509 S.E.2d 836 (1999), affirming 26 Va. App. 439, 495 S.E.2d 500 (1998).

The claimant suffered a compensable frostbite injury after shoveling snow for a discrete period of three hours. The fact that the claimant suffered from a preexisting diabetic heel ulcer was immaterial. The evidence established that the claimant developed frostbite due to exposure to cold, and that the frostbite injury aggravated the claimant’s preexisting diabetic neuropathy to the point of total disability. The employer is responsible for the effects of an injury that aggravates a preexisting condition, even if the condition would otherwise be considered an ordinary disease of life. Sheppard v. Richmond (City of) School Board, VWC File No. 201-40-64 (January 25, 2002).

Heatstroke:

Benefits were awarded to claimant who suffered from heat stroke while working under extraordinary conditions that included being outside rather than his usual location inside and performing physically demanding labor at a rapid pace on new asphalt in an area without shade. Carico v. American Truckaway Com., VWC File No. 224-79-88 (Aug. 15, 2006).

Benefits were awarded to an employee who suffered heat exhaustion while setting tile in a shower enclosure because the risk was peculiar to the employment. Yarbrough v. R. M. Black, Inc., 71 O.W.C. 123 (1992).

Decedent who died as a result of a heatstroke suffered an injury by accident which arose out of and in the course of his employment. Gauldin v. Asplundh Tree Expert Company, 66 O.I.C. 23 (1987).

Exposure beyond that of public in general to risk of harm from heat may support claim, whether artificially generated or by heat of sun made more likely to cause harm by conditions of work. Byrd v. Stonega Coke & Coal Co., 182 Va. 212 , 28 S.E.2d 725 (1943); Artis v. J. Lawson Jones Constr. Co., Inc., 51 O.I.C. 11 (1969); Updike v. Commonwealth, 36 O.I.C. 151 (1954); Norris v. Sager’s Poultry, Inc., 36 O.I.C. 65 (1954); Lauria v. McShain, Inc., 25 O.I.C. 687 (1943); Johnson v. Norfolk Tidewater Terminals, Inc., 12 O.I.C. 542 (1930), 13 O.I.C. 14 (1931) (appeal denied).

Insect Bites/Bee Stings/Animal Attacks:

The claimant’s injury arose out of his employment when he was bitten by a snake when he reached under some steps to retrieve the key to a vacant house. Even though the general public is exposed to snakes under structures, the claimant was exposed to an increased risk of injury since his work order required him to retrieve the key and there was a risk of snakes underneath the structure. Collier v. C S S S, Inc., t/a Bug Company South (The), JCN VA01002420495 (Sept. 16, 2011).

Claimant who was stung by a bee was not entitled to compensation benefits as the injury did not arise out of his employment. This case provides case citations for other cases in which insect bites and bee stings have been found both compensable and non-compensable, depending on the circumstances of each case. Beals v. Boxx Systems, L.L.C., VWC File No. 235-57-00 (Aug. 6, 2008) see also Williams v. Greensville Correctional Center, VWC File No. 233-92-44 (Aug. 15, 2008).

Lightning/Windstorm/Gases:

Benefits awarded to family of employee killed after being struck by lightning. Perdue v. Mason & Hanger Co., 23 O.I.C. 514 (1941).

Injury as result of exposure to windstorm held compensable. Scott County School Board v. Carter (teacher), 156 Va. 815 , 159 S.E. 115 (1931); Southgate Co. v. Butler (watchman), 148 Va. 671 , 141 S.E. 928 , 9 O.I.C. 76 (1927); Stark v. Rappahannock County School Board, 11 O.I.C. 526, 539 (1929).

It is well-established that the inhalation of fumes may constitute an injury by accident where the inhalation occurs at a particular time and on a particular occasion which can be fixed with reasonable certainty. Alexander v. Russell Stover Candies, 76 O.W.C. 448 (1997); Link v. Hoechst Celanese Corp., 76 O.W.C. 148 (1997).

Inhalation of poisonous gases on a single occasion may produce accidental injuries. Baltimore v. Benedict Coal Corp., 182 Va. 446 , 29 S.E.2d 234 (1944); Davis v. Robinson’s Sons, 30 O.I.C. 361 (1948); Embrey v. Southern Chemical Co., 13 O.I.C. 87 (1931).

The claimant had a history of mild asthma that was aggravated by acute exposure to bleach fumes at work. The Commission held that the acute asthma attack constituted a mechanical or structural change in the body that occurred immediately upon smelling the bleach fumes, and proved a compensable injury by accident arising out of the employment. Alexander v. Russell Stover Candies, 76 O.W.C. 448 (1997).

Pneumonia from inhalation of fumes while working on underside of car on single occasion was compensable. Leathers v. Peck Iron & Metal Co., Inc., 52 O.I.C. 162 (1970) (see also Clark v. National Fruit Product Company, Inc., VWC File # 170- 35-5 (July 17, 1995)).

Where the claimant experienced shortness of breath and chest pains within 15 - 20 minutes after starting work, which her treating physician unequivocally attributed to exposure to fumes at work, and which required medical care within three hours, she has proved a compensable injury by accident. Link v. Hoechst Celanese Corp., 76 O.W.C. 148 (1997).

Welding flash injury at a particular time is by accident and not occupational disease from protracted exposure in employment. Showalter v. Shen-Mar Food Products Corp., 51 O.I.C. 244 (1969).

Chemical burns of both feet from cement getting into shoes is accident. Du Vall v. Faller, 53 O.I.C. 88 (1971).

Low-voltage electrocution was an accident. Perkins v. Virginia Elec. & Power Co., 45 O.I.C. 187 (1963).

Burns on body not needed where electrical shock was triggering device that precipitated fatal heart attack. Ambrose v. Basic Constr. Co., 52 O.I.C. 7 (1970).

Where a money bag, worn for about three years, caused a large, hard area by its constant rubbing, a secondary infection of that area caused by the rubbing is an accident. Delp v. Wiseman Co., 32 O.I.C. 10 (1950).

An occupational disease which is an aggravation of a pre-existing disease is not compensable. Alexander v. Russell Stover Candies, 76 O.W.C. 448 (1997).

ARISING OUT OF AND IN THE COURSE OF THE EMPLOYMENT.

GENERAL.

Knee injury arose out of the employment where claimant experienced a pop in his knee as he stood up after having spent 30 to 45 minutes digging and kicking a template board, a task which required him to work in an un- usual and awkward position. Stokes v. Dixie Construction Co., Inc., JCN VA00001547649 (September 12, 2019), aff’d No. 1656-19-4 (Ct. of Appeals, March 17, 2020).

Home-based office worker showed injury occurred during course of employment; employee fell on stairs at home after walking up, and then down, stairs to confer with wife, a fellow employee, about a business-records discrepancy; accident found to occur at place where he was reasonably expected to be. Teter v. Teter’s Interstate Exxon, VWC File No. 211-47-73 (Dec. 1, 2003).

The claimant must prove that his injury arose out of and in the course of employment. The elements “arising out of” and “in the course of” are used conjunctively and are not synonymous. Both requirements must be fulfilled. Sacra v. Builders Floor Service, Inc., 78 O.W.C. 84 (1999).

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. The claimant bears the burden of proving by a preponderance of the evidence that her injury arose out of her employment. Cantwell v. Bldg. Service Contr. Assn. Int’l, 76 O.W.C. 261 (1997); Sinkfield v. Aerotech Contract Engineering Serv., 76 O.W.C. 493 (1997); Cooksey v. City of Richmond Emergency Comm., 76 O.W.C. 518 (1997).

The phrase “arising out of” refers to the origin or cause of the injury. An injury arises out of the employment where there is apparent to the rational mind upon consideration of all the circumstances, a casual connection between the conditions under which the work is required to be performed and resulting injury. The claimant must show that the conditions of the workplace or some significant work related exertion caused the injury. The causative danger must be peculiar to the work, incidental to the character of the business, and not independent of the master-servant relationship. In cases where an injury does not follow as a natural incident of the work and does not result from exposure occasioned by the nature of the employment, the injury does not arise out of employment. Swartz v. Rich Products Corporation, 78 O.W.C. 245 (1999).

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. 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. Phansond v. Alexandria Hospital, 76 O.W.C. 379 (1997); Nichols v. Hardee’s, 76 O.W.C. 428 (1997).

In determining whether an injury to an employee “arises out of” the employment, Virginia has adopted the “actual risk” test. Under that test, it is not necessary to show that the work causes an increased risk or exposes the employee to a different hazard than she might confront away from the workplace. The actual risk test requires only that the employment exposes the employee to the particular danger giving rise to the injury, regardless of the exposure of the general public to similar risks. An injury “arises out of” the employment if the employee shows that the employment exposed her to the particular environment that did present the risk of an accident, and that her injury was causally related to such exposure. Clarke v. Southside Virginia Community College, 75 O.W.C. 94 (1996); Lynch v. Virginia Veterans Care Center, 78 O.W.C. 32 (1999).

To prove that the injury arose out of the employment, a claimant must establish a causal connection between the conditions under which the work is required to be performed and the resulting injury. The claimant must show that the conditions of the workplace or some significant work-related exertion caused the injury. The causative danger must be peculiar to the work, incidental to the character of the business, and not independent of the master-servant relationship. In cases where an injury does not follow as a natural incident of the work and does not result from exposure occasioned by the nature of the employment, the injury does not arise out of the employment. Sinkfield v. Aerotech Contract Engineering Serv., 76 O.W.C. 493 (1997); Cooksey v. City of Richmond Emergency Comm., 76 O.W.C. 518 (1997).

In determining whether an injury to an employee “arises out of” the employment, Virginia has adopted the “actual risk” test. That requires only that the employment expose the employee to the particular danger giving rise to the injury, regardless of the exposure of the general public to similar risks. Gibson v. Fabri Centers of America, Inc., 75 O.W.C. 372 (1996).

Virginia has rejected the “positional risk” test in favor of the “actual risk” test. The mere happening of an accident at the workplace, not caused by any work related risk or significant work related exertion, is not compensable. Virginia has adopted the “actual risk test,” which requires only that the employment expose the workman to the particular danger from which he was injured, notwithstanding the exposure of the public generally to like risks. Cooksey v. City of Richmond Emergency Comm., 76 O.W.C. 518 (1997); Sinkfield v. Aerotech Contract Engineering Serv., 76 O.W.C. 493 (1997).

It is unnecessary under the “actual risk” test to show that the employee’s work causes an increased risk or exposes her to a different hazard than she might confront away from the workplace. The “actual risk” test requires only that the employment expose the employee to the particular danger from which she was injured, not withstanding the exposure of the general public generally to like risks. Andrews v. St. Mary’s Hospital, 76 O.W.C. 43 (1997).

To prove that an injury arose out of his employment, a claimant must demonstrate that a condition of the employment either caused or contributed to the injury. Clark v. Goodyear Tire & Rubber Co., 76 O.W.C. 145 (1997).

The claimant, a nurse practitioner, was completing histories, and writing prescriptions and charts, as she sat on a stool. Because her legs did not fit under the accompanying desk, she had to sit with her legs to the side and twist back to write on the desk. She was injured when she pushed back the stool and stood, with her arms and torso twisted. The Commission noted that merely arising from a chair is generally an ordinary, everyday event, but the particular facts in this case supported a finding that the claimant was awkwardly positioned as a result of her employment duties, and the back injury was held to be compensable. Barker v. Department of Health, 78 O.W.C. 56 (1999).

The claimant sat down at work to eat her evening meal, and struck her right kneecap on something under the table. There was nothing unusual about the table where the claimant sat down to eat her lunch, nor was there any evidence that either the chair or the table were in any way defective. The act of sitting down did not require any awkward movement or activity that could in any way be attributed to the employment. Nothing about the manner in which she was doing her job or any condition of the workplace caused her injury or constituted a risk of injury. Accordingly, the Commission found that the claimant had failed to prove that her injury arose out of the employment. Griffin v. Chesapeake Sheriff’s Office, 79 O.W.C. 4 (2000).

Injury sustained by a school secretary while responding to a supervisor’s request to help capture a bird that had flown into the building arose out of the employment, since it was part of her work duties to respond to requests for assistance. An injury sustained while performing duties incidental to the employment and necessary to eliminate a disruption to the work arises out of the employment, even if the activities are common to the neighborhood. Cooper v. City of Petersburg School Bd., 75 O.W.C. 60 (1996).

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 fulfilling the duties of her employment or while she is doing something which is reasonably incidental thereto. Seckora v. United Insurance Co. of America, 76 O.W.C. 61 (1997); Sacra v. Builders Floor Service, Inc., 78 O.W.C. 84 (1999); Doyle v. Walker, 78 O.W.C. 89 (1999).

Once having determined that an accident occurred during the course of employment, the “arising out of” inquiry considers whether the injury was related to a condition of the employment. Reynolds v. Food Lion, Inc., 76 O.W.C. 300 (1997).

The claimant was descending a staircase at work while cradling 35-pound box with his left arm and holding onto a handrail with his right hand. As he stepped to the third stair, he heard a pop in his left knee. The claimant acknowledged that he descended the steps in a normal fashion and that there was no abnormality in the steps, and no foreign substance on the surface, that caused him to slip and fall. The treating physician reported that the claimant’s injury was partly due to a pre-existing degenerative condition, but that it primarily resulted from the acute accident, due to the increased risk of carrying the 35-pound box. The Commission found that the evidence established that the claimant’s injury was causally related to the act of carrying a 35-pound box down the staircase, and that the injury arose out of the employment. Swartz v. Rich Products Corporation, 78 O.W.C. 245 (1999).

At the request of the claimant, the employer agreed to donate a box of bread dough to a church. The claimant injured his knee while carrying the box of bread down a stairway at work. The Commission held that the fact that the box of bread was intended as a charitable donation, and that the employer elected to donate it at the request of the claimant, was of no import. The Commission concluded that the box was being transported by the claimant at the direction of the employer, and that the claimant was descending the stairway in furtherance of that order, and that the injury arose out of the employment. Swartz v. Rich Products Corporation, 78 O.W.C. 245 (1999).

Noting that a snowstorm was developing toward the end of her shift and that she lived some 20 miles from the truck stop, the claimant requested and was granted permission to stay overnight in a motel that was part of the employer’s operation. The Commission held that the claimant’s purpose in staying overnight on the employer’s premises was primarily for her own benefit, and her slip and fall accident later that evening did not arise in the course of her employment. Miller v. White’s Auto Truck Stop, Inc., 76 O.W.C. 101 (1997).

A chance encounter with a dog while at work is not a risk of the employment, even when the employment requires outside work. An attack by a dog becomes a risk of the employment where the nature of the employment substantially increases the risk of an encounter between the employee and the dog. The employee walked to his van, parked on a residential street, and a neighborhood dog attacked him as he returned to the unfinished home in which he was painting. Because the only connection between the attack and the employee’s work was the fact that the work caused him to be at a particular location, the Commission found that the attack did not arise out of a risk of the employment. Argenbright v. Custom Painting, Inc., VWC File No. 202-33-09 (August 1, 2001).

GOING AND COMING.

Claimant’s injuries when struck by vehicle entering employer’s driveway where it intersected with public sidewalk on which claimant was walking to work from bus stop did not occur in the course of employment. Gonzalez v. HEI Hospitality, JCN VA02000019517 (Apr. 1, 2016).

District Court Clerk fell on sidewalk leading to county courthouse. Building was not owned or maintained by employer but she was required to work at this location. Commission found employee fell sufficiently close to entry door of building for extended premises doctrine to apply. Andrews v. Supreme Court of Va., JCN VA00000889453 (Oct. 7, 2014).

The general rule is that an employee going to or from his place of work is not engaged in performing any service growing out of or incidental to their employment. Therefore, injuries received going to or from work are not compensable. Meadows v. Condon Reed, Inc., 76 O.W.C. 241 (1997).

The Virginia Supreme Court described three exceptions to the general rule denying coverage to an employee going to or from work: (1) where transportation is provided by the employer or the time consumed is paid for or included in the wages; (2) where the way used is the sole and exclusive way of ingress and egress, or where the way of ingress or egress is constructed by the employer; and (3) where the employee is charged with some duty or task in connection with his employment while on his way to or from work. Meadows v. Condon Reed, Inc., 76 O.W.C. 241 (1997); Hardy v. Nardi Contracting Group, Inc., 77 O.W.C. 162 (1998).

As a general rule, accidents sustained while employee is going to or from work are not within the employment, unless the employer furnishes transportation or employee is paid for transportation time; the accident occurs on the sole exclusive means of ingress or egress which was constructed by the employer; or the employee while on the way to or from work is charged with some duty connected with the employment. See GATX Tank Erection Co. v. Gnewuch, 221 Va. 600 , 272 S.E.2d 200, 1980 Va. LEXIS 280 (1980); Kent v. Va.-Carolina Chemical Co., 143 Va. 62 , 129 S.E. 330 , 1925 Va. LEXIS 246 (1925).

The claimant has the burden of proving that one of the exceptions to the general rule of going and coming applies to his claim. Meadows v. Condon Reed, Inc., 76 O.W.C. 241 (1997).

A home health care nurse injured on the way from her home to that of a patient failed to establish that her employment required her to travel upon the public streets or that she was within one of the exceptions to the going to and from work rule. Sentara Leigh Hospital v. Nichols, 12 Va. App. 841, 407 S.E.2d 334, 8 Va. Law Rep. 224, 1991 Va. App. LEXIS 161 (1991) (en banc).

Carlson, a Virginia National Guardsman, completed two four-hour training sessions on a Saturday, and then returned home to Fredericksburg. While returning to Fort A. P. Hill the next day with a fellow-guardsman, Carlson suffered fatal injuries in an accident with yet another guardsman. The Commission held that because no overnight accommodations were provided to Carlson and he was free to leave the post and return home at the end of the workday on Saturday, and because he was not charged with some duty of his employment at the time of his injury, the accident and injuries did not arise out of or in the course of his employment. Carlson v. Dept. of Military Affairs, 76 O.W.C. 143 (1997).

The “going and coming” rule is irrelevant if the claimant can prove that she was injured on her way to work while passing over the property of another that was in such proximity and relation to the employer’s premises as to be, in practical effect, a part of those premises. There are two distinct lines of authority addressing this issue — the “walkway” and “parking lot rule” cases. “Walkway” cases focus on issues related to physical proximity to work, ingress and egress from the employer’s property and the reasonableness of compensability of accidents that occur within the margin of time and space used to pass to and from the workplace. The “parking lot rule” cases focus on the employer’s expectations about risk. Compensability depends on the employer’s authority and control over the location of the accident. The Commission found that the claimant suffered a compensable injury at the entrance to a public elevator that provided the only effective means of ingress and egress from the employer’s property, applying the rule in “walkway” cases. Laverdure v. RESNA, VWC File No. 205-17-05 (July 30, 2002).

General:

Benefits are payable if the employer furnishes transportation or includes in wages payment for time so used:. Bristow v. Cross, 210 Va. 718 , 173 S.E.2d 815 (1970); Lucas v. Biller, 204 Va. 309 , 130 S.E.2d 582 (1963); Hann v. Times-Dispatch Publishing Co., 166 Va. 102 , 184 S.E.2d 183 (1936); Russell v. Williams, 47 O.I.C. 284 (1965); Lynch v. Appalachian Power Co., 46 O.I.C. 145 (1964); Kerns v. Wilkins, 46 O.I.C. 129 (1964); Skeens v. Bailey Coal Co., 44 O.I.C. 242 (1962); Hamm v. Bailey Coal Co., 43 O.I.C. 47 (1961), appeal denied; Jenkins v. Willetts Terminal Restaurant, 37 O.I.C. 116 (1955); Whitehead v. Portsmouth Transit Co., 34 O.I.C. 482 (1952); Borek v. D.W. Alcorn Co., 56 O.I.C. 29 (1975).

Claim may be compensable if the way used is the sole and exclusive method of ingress or egress. Gnewuch v. Gatx Tank Erection Co., 221 Va. 600 , 272 S.E.2d 200 (1980); Kent v. Va.-Carolina Chem. Co., 143 Va. 62 , 129 S.E.2d 330 (1925); Tyrrell v. City Bank & Trust Co. of Alexandria, 51 O.I.C. 279 (1969); Cooper v. Graham-White Mfg. Co., 45 O.I.C. 48 (1963).

Employee’s injury in motor vehicle accident on way to work arose out of employment; employer had provided vehicle as benefit of employment and specifically provided for commuting to and from work; Commission found accident qualified for exception to general rule disallowing compensation for accidents going to and coming from work, as transportation was provided by employer; employer also derived benefit from employee driving company vehicle as vehicle provided advertising for company. Garrett v. Advanced Pest Control, VWC File No. 210-53-10 (Jan. 21, 2004).

Transportation Furnished:

An injury sustained by a workman who is provided with transportation when going to or from his work is considered as arising out of his employment when such transportation is a result of an express or implied agreement between the employer and his employee; or where the transportation is furnished by custom to the extent that it is incidental to and part of the contract of employment; or when it is a result of a continued practice in the course of the employer’s business which is beneficial to both the employer and the employee. Meadows v. Condon Reed, Inc., 76 O.W.C. 241 (1997).

Where claimant is injured in a vehicle owned and operated by the employer while returning to work from lunch, the vehicle becomes an extension of that employer’s premises. George v. Avis Rent-A-Car, 60 O.I.C. 169 (1981).

Where transportation after work was provided as a favor to the employee and of no benefit to the employer, the resulting injury was not the result of an injury by accident arising out of and in the course of his employment. Oliver v. Calvert-Jones Company, Inc., 60 O.I.C. 338 (1981).

To prevail under the first exception to the going and coming rule, the claimant must prove that the transportation to and from work provided by the employer is pursuant to an express or implied agreement that the employer will furnish free transportation to the employee on a regular basis, such that it is incidental to and part of the employment contract. Where the claimant is responsible for providing her own transportation to and from work on a regular basis, and she received rides from the employer only on a few occasions, the evidence establishes transportation provided only an accommodation to the claimant and not in furtherance of the employer’s interests. Hardy v. Nardi Contracting Group, Inc., 77 O.W.C. 162 (1998).

The claimant for almost the entire term of his 35-year employment had been provided the use of a company van for work purposes only, in which he kept his tools for use when dispatched directly to the job location from his home, or in case of emergency dispatches. The Commission held that the transportation was the result of an agreement or custom that benefited both the employer and employee, giving the employer flexibility to dispatch the employee directly from home or while in transit, and it was held irrelevant that on the occasion of the accident the claimant was going to the office and not to a remote jobsite. Meadows v. Condon Reed, Inc., 76 O.W.C. 241 (1997).

Transportation Cost Reimbursed:

Where employee furnishes his own transportation but is compensated for time consumed in travel to and from the job, an accident during that travel time is compensable. Nadasi v. Eubank Co., 38 O.I.C. 83 (1956).

Where employee furnishes his own transportation but is compensated for time consumed in travel to and from the job, an accident during that travel time is compensable. Nadasi v. Eubank Co., 38 O.I.C. 83 (1956).

Where transportation expenses are reimbursed to the claimant, the employer in effect is providing the transportation and assumes responsibility for over-the-road injuries that occur while going to and from work. Spiroff v. Medshares Home Care, 78 O.W.C. 182 (1999).

The employer is liable for an over-the-road work accident while the employee is going to or coming from work if it provides transportation or reimburses the employee for transportation expenses, or if it pays the employee for the time consumed in the travel. Spiroff v. Medshares Home Care, 78 O.W.C. 182 (1999).

Where employee is reimbursed for the travel, an accident during authorized travel to employee’s home over a holiday is compensable. Bates v. Kern’s Bakery, Inc., 37 O.I.C. 91, 201 (1955).

A daily allowance which employee may use for board and lodging at the place of work or for traveling to and from work in his personal car, does not extend the Act to cover employee while commuting. Lewhite Constr. Co. v. Dunn, 211 Va. 279 , 176 S.E.2d 809 (1970) 50 O.I.C. 129 (1968) Phillips v. Stone & Webster Engineering Corp., 58 O.I.C. 285 (1975).

Transportation Time Paid:

Benefits awarded to fireman who was injured on the way to work in response to a flood because his salary began the instant he received phone call. Reamy v. City of Richmond Fire Dept., 55 O.I.C. 290 (1973).

Where social worker was required to furnish own automobile and to house it at her home at night, injuries received by claimant in auto accident prior to beginning of workday were compensable. Eaddy v. South-Eastern Tidewater Opportunity Project, 56 O.I.C. 100 (1975) (affd. on review); Schwartz v. White Tower, 57 O.I.C. 312 (1976).

Claimant who was injured while going to work after being so directed by the employment agency that hires and pays employees who perform work for other business was not in the course of employment because transportation was not provided and pay did not begin until arrival at work. Doherty v. Va. Temporaries, 54 O.I.C. 103 (1972).

Ingress and Egress:

Accident on employer’s sole means of ingress and egress is within scope of employment whether or not owned or controlled by employer. Adams v. Westmoreland Coal Co., 60 O.I.C. 4 (1981).

If use of exit not prohibited by employer accident may be compensable even though it is not the sole means of egress. Foust v. Dickerson Buick Corp., 47 O.I.C. 125 (1965) (appeal denied). But see Collier v. Betty B. Coal Co., 57 O.I.C. 79 (1976).

The claimant while coming to work on the sole means of ingress and egress to the employer’s premises was injured when he swerved to avoid hitting a tractor-trailer stopped on the state-maintained road behind two trucks waiting at the gate to the workplace. In awarding benefits the Commission made a reasonable inference that the trucks were waiting to do business with the employer and therefore were a special hazard that had its origin in the employment. Adkins v. Merillat Industries, 68 O.I.C. 57 (1989).

If employee is still charged with a duty connected with the employment when injury occurs, claim may be compensable:. Ferrell v. Beddow, 203 Va. 472 , 125 S.E.2d 196 (1962) (before regular work hours, but while engaged in employment duties); Jordan v. Larus & Bro. Co., Inc. (WRVA), 44 O.I.C. 151 (1962); Cruise v. Trayer’s Holiday Restaurant, 44 O.I.C. 55 (1962) (special errand rule); Nugent v. Dorsk, 42 O.I.C. 100 (1960) (after completion of duties and off employer’s premises, at private parking area); Gillespie v. Thompson, Kirby & Shay, 45 O.I.C. 93 (1963) (specifically instructed to transport scaffolding pins to job site); Foreman v. Tyree-Jones Motor Corp., 47 O.I.C. 122 (1965) (salesman en route from one prospect to another on Sunday).

Where an employee is required to go to outside places to work, she is at all such time acting in the course of her employment, and is entitled to compensation if injured by a work-related accident at such time. Seckora v. United Insurance Co. of America, 76 O.W.C. 61 (1997).

The claimant’s injury occurred while she was rushing into the store to complete a work-related task, turning off the store’s alarm. The claimant’s speed and manner was determined by the conditions of her employment, which allowed only 60 - 120 seconds to turn off the alarm. The Commission held that this was sufficient to establish the injury was caused by the conditions of the workplace or some significant work-related exertion. Caceres v. Kids R Us, 76 O.W.C. 312 (1997).

The claimant testified that she made some work related phone calls at home prior to leaving for work with the employer, and that business issues were discussed with the employer on the drive to work. The Commission found that such casual work conversation was not equivalent to being specifically charged with a work related duty or task while on the way to work. Hardy v. Nardi Contracting Group, Inc., 77 O.W.C. 162 (1998).

Parking Lot Accidents:

The mere designation of an area for visitors and handicapped individuals does not establish employer specifically was allocated a certain portion of building’s parking lot. Instead, the evidence in the record showed that the parking lot where claimant parked was available to all tenants in the building, not only employer’s employees. Claimant did not have a particular area of parking lot where he was required or designated to park as an employee of the employer, and he did not have an assigned parking space. Winn v. Dixon Hughes Goodman LLP, JCN VA00001124345 (Nov. 29, 2016).

The employer permitted the claimant to take an examination off the employer’s premises, paying for her time and requiring no leave. As the claimant was walking across the parking lot at the off premises location, she slipped on ice, fell, and was injured. The Commission held that the injury arose out of her employment. By permitting the claimant to travel to the off premises location to take the exam, the employer took on additional risks and lost authority and control over the risks faced by the claimant. Additionally, the employer allowed the claimant to take the exam for their mutual benefit, thus exposing her to the risk of ice on the parking lot. Goldman v. Virginia Ear Nose & Throat PLLC, JCN VA0200002359 (June 23, 2011).

Because the employer kept a time clock and supplies at the apartment complex where the claimant worked as a housekeeper and coincidentally lived, the parking lot where she fell on the ice 15 to 20 steps away from where she was going to clock in was part of the employer’s extended premises. Duran v. Red Coats, Inc., VWC File No. 228-01-05 (March 7, 2007).

A majority found that the claimant, a Supreme Court employee working in the Chesterfield County District Court House who slipped on the ice leaving work, did not prove that the accident occurred on her employer’s extended premises in that Chesterfield County owned the parking lot rather than her employer. She did not have an assigned parking space and was injured in an area open to the public. Schott v. Supreme Court of Virginia/Commonwealth of Va., VWC File No. 222-85-09 (June 6, 2006).

Claimant en route to parking area fell due to sloping of paved road separating parking area from store in which she worked. There was no evidence that employer maintained or controlled the parking lot, that employees were provided specific places to park, or that claimant was in a location other than a common area used also by customers and employees of other stores. Therefore, claimant was not on the employer’s extended premises at the time of her injury. Newberry v. Peebles Dept. Store, VWC File No. 214-54-35 (Jan. 7, 2005), aff’d, Record No. 0273-05-01 (Oct. 11, 2005).

Airport parking lot in which claimant, an air line employee, slipped and fell, was not an extension of the premises of the employer because the employer did not own, maintain, or control the parking lot, its employees did not have assigned spaces or a special section of the lot where they were required to park, and the lot was shared with other airport employees. Mirtschin v. US Airways, Inc., VWC File No. 217-56-00 (Oct. 26, 2004).

Employee’s injury did not arise out of his employment where he was injured in a shopping center parking lot, he did not have an assigned parking space and was free to park anywhere in the lot, and the employer did not own or maintain the lot. Tapp v. Food Lion, VWC File No. 213-18-62 (Aug. 25, 2004).

Employee was injured in parking lot partially owned by employer county, but maintained by the town and open to the general public. Since the county did not exercise control over the situs of the accident and no evidence demonstrated that the county’s employees were required to park in a particular area, injury did not arise out of employment. Floyd v. Fauquier County Community Dev., VWC File No. 213-27-56 (Feb. 12, 2004).

Employee injured from slip on ice in parking lot on way to clocking in arose out of employment; employee worked for maintenance company under contract to maintain client worksite; employee hired to come on site, clock in, and perform assigned tasks; accident occurred on premises and not in remote location on way to or from work or otherwise unconnected with employment. Blackwell v. Bob Holtz Serv., Inc., VWC File No. 204-03-23 (June 24, 2003).

Accidental injuries of employees in company parking lots come under Act. Brown v. Reed, 209 Va. 562 , 165 S.E.2d 394 (1969); Childress v. Tysinger Motor Co., Inc., 57 O.I.C. 71 (1976) (affd. on review) (appeal denied); O’Neil v. Northwest Airlines, Inc., 57 O.I.C. 271 (1977); Comuntzis v. Kertscher, 58 O.I.C. 73 (1979).

Fall in company parking lot on way to work is compensable. Jones v. Marval Poultry Company, Inc., 60 O.I.C. 242 (1981).

Compensation awarded to an employee who sustained an injury on the company parking lot during a work break. Ferrell v. Comdial Telephone System, 64 O.I.C. 137 (1985).

The claimant ran in a parking lot to move traffic cones for a tire sale, and was injured when he tripped and fell. The evidence showed no reason to hurry, nor was there anything irregular or unusual about the parking lot. The Commission held that the claimant selected the speed and manner with which he performed his job, but it did not require that he run, and the Commission found no causal connection between the claimant’s employment and his injury. Lane v. Sears Roebuck and Company, 76 O.W.C. 218 (1997).

“Premises” of the employer means those used for ingress and egress, regardless of ownership. Tyrrell v. City Bank & Trust Co. of Alexandria, 51 O.I.C. 279 (1969).

Shopping mall parking lot was part of employer’s premises. Ocheltree v. Dairy Queen, 64 O.I.C. 244 (1985).

Shopping mall parking lot was part of employer’s premises. Ocheltree v. Dairy Queen, 64 O.I.C. 244 (1985).

Walkway in Capitol Square not premises of State agency employing claimant. Jacobs v. Com. of Va./Dept. of Accounts, 56 O.I.C. 184 (1975).

A public sidewalk bordering the premises of the employer is part of the “extended premises” of the employer, and an accident occurring there arises in the course of employment. Wiggins v. Planters Peanuts, 76 O.W.C. 211 (1997).

The claimant who slipped in the snow while getting into his car in a parking lot provided by the employer established an injury by accident that arose out of and in the course of the employment. Scotece v. Prudential Insurance Co., 68 O.I.C. 69 (1989).

The claimant who slipped in the snow while getting into his car in a parking lot provided by the employer established an injury by accident that arose out of and in the course of the employment. Scotece v. Prudential Insurance Co., 68 O.I.C. 69 (1989).

Where the evidence established that it was dark and raining, and the employee was hurrying in rain to work from her car parked in a space assigned to her by the employer, and the evidence preponderated to show that her fall was caused by the wet ground surface, the accident arose out of a risk related to the conditions of her work. Andrews v. St. Mary’s Hospital, 76 O.W.C. 43 (1997).

The claimant, who slipped on black ice while proceeding on a direct path to work from a parking lot for which her employer arranged reasonable rates and collected the fee, was injured in an accident that arose out of and in the course of her employment. Agee v. Alexis Risk Management, 69 O.I.C. 84 (1990).

Injuries sustained while crossing street between employer’s parking lot and work-place held compensable. Ingram v. Marval Poultry Co., Inc., 58 O.I.C. 192 (1978).

Use of a shortcut across employer’s premises to public highway, with acquiescence of employer, is incidental to employment. Williams v. Va. Crusty Pie Co., 52 O.I.C. 288 (1970); Bolden v. Hollins College Corp., 37 O.I.C. 1 (1955).

Injuries sustained while walking from public parking lot to place of employment not compensable. Smith v. Southern Hardware, 59 O.I.C. 282 (1980).

Accident occurring crossing street to parking lot not owned by employer and which is not sole means of ingress and egress is not compensable. Kithas v. Brandin Iron Restaurant, 60 O.I.C. 264 (1981).

Compensation denied where employee of county was on a public street en route home from work on private motorcycle. Wilcox v. County of Henrico, 49 O.I.C. 336 (1967).

After an accident on public highway but car rolled onto recreation field of school where the claimant is employed does not mean injuries were sustained on premises of employer. Wilson v. Russell County School Board, 50 O.I.C. 348 (1968).

The “going and coming” rule is irrelevant if the claimant can prove that she was injured on her way to work while passing over the property of another that was in such proximity and relation to the employer’s premises as to be, in practical effect, a part of those premises. There are two distinct lines of authority addressing this issue — the “walkway” and “parking lot rule” cases. “Walkway” cases focus on issues related to physical proximity to work, ingress and egress from the employer’s property and the reasonableness of compensability of accidents that occur within the margin of time and space used to pass to and from the workplace. The “parking lot rule” cases focus on the employer’s expectations about risk. Compensability depends on the employer’s authority and control over the location of the accident. The Commission found that the claimant suffered a compensable injury at the entrance to a public elevator that provided the only effective means of ingress and egress from the employer’s property, applying the rule in “walkway” cases. Laverdure v. RESNA, VWC File No. 205-17-05 (July 30, 2002).

ON PREMISE INJURIES.

Before/After Work:

Claimant’s injuries, sustained prior to the start of her shift when a chair on which she sat to eat in a public cafeteria broke, arose out of and in the course of her employment; claimant was attending to her personal comfort in an area the employer anticipated employees would use, and her early arrival benefitted the employer. Lopez-Arias v. Shoppers Food Warehouse/Supervalu, Inc., VWC File No. VA010-0242-5770 (Dec. 3, 2010).

Employee’s fall on icy sidewalk in front of employer’s building while arriving at work found to occur on employer’s extended premises; question of ownership of building or sidewalk not relevant to question of extended premises. Seeley v. Atlantic Rehab. Servs., Inc., VWC File No. 208-07-37 (Mar. 17, 2003).

Activities at or near place of employment preparatory to beginning or departing from work are within the Act. Brown v. Reed, 209 Va. 562 , 165 S.E.2d 394 (1969); Sisco v. Lawson, 30 O.I.C. 33 (1948); Kelly v. Friedman-Marks Clothing Co., Inc., 27 O.I.C. 100 (1945).

Accidental injuries occurring on the premises before or after the regular hours of work are compensable. Poindexter v. V.M.I., 51 O.I.C. 216 (1969).

Although the claimant may have earlier performed substantial amounts of work at home, she was expected to perform her job duties and conduct business in the designated office after the company opened a business office. The Commission did not find that the claimant’s performance of some work-related tasks at home established that she was already “in the course of her employment” when she was picked up for the ride to work on the day of her accident. Hardy v. Nardi Contracting Group, Inc., 77 O.W.C. 162 (1998).

Although the claimant may have earlier performed substantial amounts of work at home, she was expected to perform her job duties and conduct business in the designated office after the company opened a business office. The Commission did not find that the claimant’s performance of some work-related tasks at home established that she was already “in the course of her employment” when she was picked up for the ride to work on the day of her accident. Hardy v. Nardi Contracting Group, Inc., 77 O.W.C. 162 (1998).

An injury sustained when the employee arrived at work early and was performing a preliminary task assigned to him was held compensable. Fields v. Virginia Air Conditioning & Refrigeration Services, 62 O.I.C. 167 (1983).

The claimant was injured while playing with a child she had been asked to watch by a teacher who occasionally supervised her work activities. The injury was not in the course of the employment, since it occurred after the claimant had completed her work shift and while performing activities not expected of her or incident to the employment. McKay v. Henrico County Capital Area Training Consortium, 74 O.W.C. 72 (1995).

Compensation benefits were awarded to the claimant who, after parking his car on an adjacent highway where employees normally park, entered the employer’s premises, walked through a paved parking lot, climbed steps to his assigned building, and twisted his knee after stepping on a rock. Wolford v. Western Temporary Services, 73 O.W.C. 89 (1994).

Also see “Recreational” topic below.

Lunch/Personal Comfort Break:

The claimant’s fall sustained while she was running back to the bus she operated following a rest room break arose out of her employment even though she could not specifically identify the cause of her fall because the claimant’s rushing to keep her bus route schedule was an environmental factor contributing to her injury. Nall v. Fairfax Connector, VWC File No. VA010-0242-5138 (Feb. 5, 2010).

A security guard who fell on a curb exiting a convenience store across the street from her assigned location was not in the course of her employment as the injury did not occur on the employer’s extended premises. The personal comfort doctrine applies only if “the employee uses the facilities furnished to [her] by the employer, or does not depart from the employer’s premises, or go to some place thereon where (s)he has no right to be.” Harris v. Atlantic Protective Services, Inc., VWC File No. 221-33-04 (June 13, 2006).

The personal comfort doctrine was inapplicable to claimant who was injured crossing a railroad track while returning to a construction site after purchasing coffee at a convenience store during his break because the injury did not occur on the employer’s premises or extended premises. Benitez v. JV Enterprises, VWC File No. 218-10-94 (Oct. 31, 2005) (Appeal Dismissed).

Virginia has long recognized the personal comfort doctrine, recognizing the need for periodic breaks and excursions for food, drink, rest, and restroom visitation. Reynolds v. Food Lion, Inc., 76 O.W.C. 300 (1997).

An injury sustained by an employee while engaged in the performance of an act essential to her personal comfort and convenience, but ultimately for the benefit of the employer, is compensable. Seckora v. United Insurance Co. of America, 76 O.W.C. 61 (1997).

Injuries suffered during a temporary pause in the work to get a drink of water, rest a few moments, answer a call of nature, or the like, are within the Act. Griffith v. Raven Red Ash Coal Co., Inc., 181 Va. 911 , 27 S.E.2d 360 (1943); Bradshaw v. Aronovitch, 170 Va. 329 , 196 S.E.2d 384 (1938); Washington v. Glisson Masonry Corp., 49 O.I.C. 329 (1967); Barile v. Hampton Motor Corp., 58 O.I.C. 11 (1979).

Injuries suffered while on a personal comfort break are compensable only if such break is taken on the premises or extended premises of the employer, or at a place and facility designated by the employer for such purpose, or incidental to required travel outside the employer’s premises to perform work duties. Injury from motor vehicle accident while on break and en route to nearby convenience store for coffee and snacks does not arise out of or in the course of employment. Cannavino v. Kiln Creek Auto Sales, 75 O.W.C. 267 (1996).

The claimant worked as a cashier at Food Lion. She clocked out for lunch, and went to the delicatessen area of the store to purchase food to eat in the employee lounge. The claimant was not required to eat her lunch in the employee lounge, or to purchase her food in the store. As she turned to walk away without buying anything, she slipped on a piece of meat which was on the floor. The Commission held that the claimant’s injury arose out of and in the course of her employment. Reynolds v. Food Lion, Inc., 76 O.W.C. 300 (1997).

Where employee, taking break, leaned out window and fell, his injury was incidental to employment, such breaks being sanctioned by employer and in line with established custom. Marshall v. Richmond Broom Co., 34 O.I.C. 15 (1952); Jenkins v. Marval Poultry Co., 57 O.I.C. 192 (1977).

Claimant’s momentary deviation from his employment to open a window, whether to let out smoke or to observe a car in the parking lot, is too insubstantial a deviation to remove him from the course of his employment. Wood v. Limitorque Corporation, 63 O.I.C. 375 (1984).

Burns from work gloves catching fire while lighting cigarette were compensable. Price v. Miller, 51 O.I.C. 221 (1969).

Claimant sustained leg injury when, during a lull in his work, he tried to climb a tree “to see if he could still do it.” Claimant had deviated from his regular employment, and injury did not arise out of employment. Morris v. Asplundh Tree Expert Co., 57 O.I.C. 251 (1977).

The employee who was injured while eating lunch on site at the request of the employer in a designated area behind the premises was in the course of his employment even though he was officially off of the clock. Mileham v. Sal’s Italian Restaurant & Pizza, 70 O.I.C. 139 (1991).

Injuries during lunch breaks on the employer’s premises may be compensable. Giddens v. Kesteren, 57 O.I.C. 131 (1976); Elliott v. Farm Fresh, 58 O.I.C. 112 (1978).

The Commission denied benefits to an employee who suffered an eye injury from foreign matter while eating lunch in the employer’s cafeteria because the injury did not result from any risk associated with the work environment. Derricott v. City of Norfolk, 70 O.I.C. 137 (1991).

Compensation benefits were denied to an employee who suffered burns when a hot bowl of chili heated in the employer’s microwave spilled on his arm during a lunch break because the accident did not arise out of his employment. Thornbury v. The Genie Company, 71 O.W.C. 135 (1992).

The employee, a wheelchair-bound paraplegic, was injured when a hot beverage purchased from a vending machine in the employer’s breakroom spilled on his lap. Held, the claimant was injured by something over which the employer had control, the temperature of the liquid, which established the requisite nexus between the conditions of the employment and the employee’s injury. Davies v. Hershey Food Corp., 75 O.W.C. 341 (1996).

Compensation was awarded when an employee was injured during her lunch break on the employer’s premises while performing an act of a personal nature, which had become part of the customary procedure with knowledge of the employer. Tinsley v. Courtland Manufacturing Company, 63 O.I.C. 351 (1984).

Employee killed on defendant’s premises in process of leaving to secure lunch provided by employer for working overtime was under the Act. Maloyed v. Olin Mathieson Chem. Corp., 50 O.I.C. 240 (1968); Clark v. Walker Mach., 45 O.I.C. 27 (1963).

The Commission held that the personal comfort doctrine did not apply, where the employee was injured in a traffic accident during a lunch break, away from his usual workplace. Injuries suffered while on a personal comfort break are compensable only if such break is taken on the premises or extended premises of the employer, or at a place and facility designated by the employer for such purpose, or incidental to required travel outside the employer’s premises to perform such duties. The claimant’s work schedule, including his lunch break was different because he was attending a seminar that day. However, the accident occurred away from the employer’s premises, and the employee’s lunch travel was not incidental to his duties for the employer. Tutor v. City of Norfolk Police Department, VWC File No. 197-62-99 (May 9, 2001).

Personal Mission or Activity:

Compensation benefits were awarded to a commissioned employee who was injured during normal work hours while working on his personal car with the employer’s consent. Ablola v. Holland Rd. Auto Center, Ltd., 11 Va. App. 181, 397 S.E.2d 541, 7 Va. Law Rep. 648, 1990 Va. App. LEXIS 179 (1990).

Injuries sustained while repairing own car on employer’s premises after working hours were the result of a personal mission unrelated to employment. DeBruhl v. Fox Hurley, Inc., 59 O.I.C. 67 (1980) (see also Lawrence, et al. v. Williams Paving Co., Inc., 59 O.I.C. 169 (1980)).

In awarding compensation benefits to an employee who was injured after hours while performing work for his own customers, the Commission held that the employee’s ability to supplement his wages by using the employer’s equipment and premises after hours were part of the contract for hire that allowed the employer to pay the employee reduced wages. Sanford v. Contemporary Woodcrafters, Inc., 70 O.I.C. 143 (1991).

Conflicting evidence showed that the employee was injured while driving to her husband’s business to pick up his pay check or to advise him that she would be working late. Held, the employee deviated from her normal route for personal reasons, and the injury did not occur in the course of her employment. Gray v. Employers Resource Management Corp., 75 O.W.C. 312 (1996).

Compensation benefits were denied to the claimant who slipped and fell while returning via an underground tunnel from making a personal doctor’s appointment in a building adjacent to her place of employment. The case was distinguished from Prince v. Pan-American World Airways, 6 Va. App. 268, 368 S.E.2d 96 (1988), in that the claimant was on a personal mission, she was not required to use the tunnel to enter her place of employment, and her job duties did not require her to go to the doctor’s building. Mays v. Humana Hospital Clinch Valley, 68 O.I.C. 94 (1989).

Compensation benefits were awarded to the claimant, a veterinarian assistant, who was bitten by her own cat while acting in the capacity of both a customer and an employee. Scott v. Douglass Alan Houston, 68 O.I.C. 90 (1989).

Injury by Guns:

Accident did not arise out of employment although claimant was injured during course of his employment when he and fellow employee compared pistols and one accidentally fired. Neither employee was required to have a pistol for his job. Hamilton v. Imperial Oil Co., 48 O.I.C. 102 (1966); Fuller v. Ponce de Leon Hotel, 44 O.I.C. 100 (1962).

Benefits denied to a night watchman not authorized to carry gun and job did not require him to be armed. Stone v. Gray Concrete Pipe Co., Inc., 50 O.I.C. 311 (1968).

Claimant’s gunshot wound from pistol he was not authorized to carry was a personal risk and did not arise out of his employment. Harper v. Virginia Appalachian Lumber Company, 60 O.I.C. 179 (1981).

Employee who elected to participate in Russian roulette was not under the Act. Teller v. Campbell, 54 O.I.C. 370 (1972).

Picking Up Paycheck:

Accidental injury sustained by employee on worksite to pick up paycheck at invitation of employer held compensable. Decatur v. American Silk Mills, Inc., 60 O.I.C. 131 (1981).

A claimant who slipped and fell at her place of employment while waiting to receive her paycheck several hours after clocking out was not entitled to compensation benefits. McKinney v. Hardee’s, 67 O.I.C. 99 (1988).

Since the claimant was not performing any duty for her employer when she was injured on her day off while at her place of employment to pick up her paycheck, compensation benefits were denied. Nicely v. Liberty House Nursing Home, 68 O.I.C. 103 (1989).

Claimant, whose employment had been terminated and who chose to return to employer’s premises to pick up two checks due, was injured on the employer’s parking lot and was held not to be in the course of her employment at the time of injury. Gillespie v. Metal-Craft, Inc., 57 O.I.C. 131 (1976).

Injury After Employment Ceases:

Although compensation coverage is not automatically and instantaneously terminated by the firing or quitting of employee and he is within the course of his employment for a reasonable period while he winds up his affairs, injury in altercation more than five hours after leaving premises is not covered. Cobbs v. Regino’s Restaurant, 51 O.I.C. 51 (1969); Redman v. Mays (appeal denied), 58 O.I.C. 300 (1978).

Injury sustained five minutes before leaving worksite at end of day which was to be claimant’s last on job due to his termination, held compensable. Jones v. A.P. Perry & Company, 60 O.I.C. 245 (1981).

A former Deputy Sheriff who slipped and fell while descending the witness stand suffered an injury by accident that arose out of and in the course of her employment. Although the claimant had terminated her employment prior to the testimony, she was a public official whose actions in appearing at the trial were a reasonable conclusion of her work responsibilities. Thore v. Chesterfield County Board of Supervisors, 10 Va. App. 327, 391 S.E.2d 882, 6 Va. Law Rep. 2371, 1990 Va. App. LEXIS 81 (1990).

OFF PREMISES INJURIES.

Positional risk doctrine not applicable in this jurisdiction. Bowman v. Hutchens Chevrolet, 52 O.I.C. 31 (1970); Broughman v. Fiber Salvage Co., Inc., 51 O.I.C. 26 (1969) (appeal denied); Ash v. Newport News, Office of Human Affairs, 59 O.I.C. 4 (1980).

Street Accidents:

The claimant was driving company van on company business when an object entered the window and struck the claimant in the eye. The injury arose from an actual risk of the claimant’s presence on the streets and thus arises out of the employment. Williams v. Edward Randolph Williams/Hank Williams Painting and Landscaping, L.L.C., JCN VA02000008947 (formerly VA00000299713) (June 15, 2011).

The claimant’s accident, where he was struck by a car while chasing after a dog, arose out of and in the course of employment because it was among the claimant’s duties to attempt to retrieve loosed animals. While the claimant could not remember how he was injured, his accident was not unexplained because there were eyewitnesses to the accident. Dearforff v. Town and Country Animal Hospital, VWC File No. 231-34-72 (Dec. 7, 2007), aff’d No. 0047-08-4 (Ct. of Appeals, June 10, 2008, unpublished).

Claimant was unconscious at time of motor vehicle accident and could not remember the accident. The etiology of his loss of consciousness was unclear. The accident was unexplained and, therefore, not compensable. The increased risk analysis used in idiopathic fall cases is not applicable where the evidence failed to establish that symptoms that caused accident or that traffic accident itself were caused by employment-related factors. Webb v. Ruan Transport Management Systems, Inc., VWC File No. 215-99-00 (Feb. 17, 2005).

Virginia has adopted the “actual risk test” in “street cases.” Lucas v. Lucas, 212 Va. 561 , 136 S.E.2d 63 (1972); Brosnahan v. Immer & Co., 207 Va. 720 , 152 S.E.2d 254, 1967 Va. LEXIS 128 (1967); Cohen v. Cohen's Dept. Store, 171 Va. 106 , 198 S.E. 476 , 1938 Va. LEXIS 261 (1938); Dreyfus & Co. v. Meade, 142 Va. 567 , 129 S.E. 336 , 1925 Va. LEXIS 360 (1925).

It is not necessary that the employee show that his presence on the street or highway where his additional injuries are suffered exposes him to an increased hazard peculiar to the work and not common to the public generally. Such a burden is now characterized as obsolete. Under the “actual risk test,” it is immaterial even whether the degree of exposure is increased, if in fact the employment subjected the employee to the hazards, whether continuously or infrequently. Cantwell v. Bldg. Service Contr. Assn. Int’l, 76 O.W.C. 261 (1997).

Where employee’s duties may be performed on public streets, there must be some proof he was in the course of employment at time of accident. Chancellor v. Goodrich Co., 20 O.I.C. 265 (1938), 21 O.I.C. 6 (1939).

Injury did not arise out of employment where, returning to office with lunch, claimant was struck by a car which jumped curb two doors from employer’s office door. Jessee v. Roberson, 60 O.I.C. 232 (1981).

In denying compensation benefits to the decedent, who left his disabled truck in Appomattox Court House rather then wait for the repair crew and was found dead as the victim of an apparent hit-and-run incident in Powhatan County, the Commission noted that an over-the-road driver is under the Act from the time he is first dispatched until he returns home or to his point of departure and even during alternative transportation home or to his primary work site if tasks are completed at an intermediate location. However, in this case the evidence failed to establish a work-related reason for the decedent’s location so distant from his truck. Lee v. Osborne Trucking Company, Inc., 73 O.W.C. 107 (1994).

The claimant, whose eye was injured by a particle of dust while he waited to return by the subway from a meeting, was exposed to a street hazard caused by a special risk incident to his employment. It is of no consequence that he was exposed to the same hazard as members of the general public on the same subway platform. Dayton v. Arlington County Fire Department, 69 O.I.C. 96 (1990).

Compensation benefits were awarded to the claimant who was injured in a car accident while procuring coffee and doughnuts for coworkers. Lee v. Commonwealth of Virginia/Virginia Department of Health, 65 O.I.C. 78 (1986).

Duties of District Manager primarily public relations; auto accident at 3 a.m. compensable. Van Houten v. Schlitz Brewing Co., 52 O.I.C. 267, 269 (1970).

Compensation awarded to a claimant who was injured while proceeding directly back to his normal route home after deviating from that route to perform a task in connection with his employment. Payne v. Charles City County School Board, 64 O.I.C. 256 (1985).

If purpose of trip is primarily personal to employee no compensation may be allowed. Butler v. Nolde Bros., 189 Va. 932 , 55 S.E.2d 36, 1949 Va. LEXIS 229 (1949).

Compensation benefits were awarded to the claimant who fell off of the back of a truck because his foreman had directed him to ride on the bumper to check on construction and to look for tools. Stephens v. WARRCO, Inc., 69 O.I.C. 92 (1990).

The claimant was required to be on the sidewalk in Chicago. She was carrying a briefcase, a three-inch three-ring binder, and a purse. A high wind that gusted just as she raised her arm to hail a cab caused her to fall and injure her left ankle and right knee. The Commission held that her employment placed the claimant on the sidewalk under these conditions, and her accident arose out of her employment. Cantwell v. Bldg. Service Contr. Assn. Int’l, 76 O.W.C. 261 (1997).

Attendance at Meeting:

Attendance at special business meetings is incidental to employment, and accidents at or during necessary travel to and from such meetings are in the course of employment. King v. Leonard’s T.V. Appliances, Inc., 35 O.I.C. 407 (1953), 36 O.I.C. 27 (1954) (appeal denied).

Injury to teachers en route home from conference was compensable. Holland v. Amherst County School Board, 52 O.I.C. 142 (1970).

Attending seminar at direction of employer; lunch hour accident was awarded. Myers v. Fairfax County Fire & Rescue Services, 55 O.I.C. 253 (1973).

Returning home from awards dinner sponsored by employer tantamount to special errand. Rogers v. Beneficial Finance Co., 52 O.I.C. 216 (1970) (appeal denied).

Special Mission/Personal Work for Employer:

Employee not considered on special errand for employer at time of injury; employee routinely made bank deposits and stopped at post office for employer on way to work; employee’s injury occurred on way to work, and employee had in her possession various items, including bank documents and mail; activity not considered special errand because part of her regular routine; employee also not considered to be working at time of accident because of dual purpose doctrine because only evidence of work purpose at time of accident was possession of work documents, and accident occurred before work on public street. Vislobokova v. Tracey Corp., VWC File No. 203-37-42 (Jan. 29, 2003).

The “special errand” rule applies if the employee is given a special assignment outside her normal duties, but upon which her wages are measured, that clearly represents a special benefit to the employer. Woodward v. Hardee’s, 75 O.W.C. 50 (1996).

Compensation awarded to an employee, who, at the completion of his work shift, was requested by this employer to repair a furnace at a home he rented to his son. The employee suffered a severe leg injury when he slipped in the yard. Padgett v. Turpin’s Amoco Service, Inc., 63 O.I.C. 263 (1984).

Injuries sustained while employee was trimming trees at the home of the employer were compensable. Davenport v. Frank Sheffield, Jr., t/a Fuqua & Sheffield, 62 O.I.C. 151 (1983).

Claimant on special mission in his own car at the employer’s request was under Act when injured. Powell v. James Ricks Painting Contractor, 58 O.I.C. 293 (1979).

Claimant was on a special mission when he was directed to take a truck home with him and was injured the next morning while investigating a problem with the ladders on the truck. Johnson v. Lambert Painting & Decorating, 59 O.I.C. 159 (1980).

See also Robert George Woodward v. Hardee’s/Boddie Noel Enterprise, Inc. (unpublished Court of Appeals Memorandum Opinion Record # 0504-96-3) (August 13, 1996).

The Commission held that the “special errand rule” did not apply. The rule applies if the employee is injured during a temporary, special assignment outside the employee’s normal work duties, and the assignment represents a special benefit to the employer. While the employee was attending a seminar on the day of the accident, rather than his usual duties, nothing suggested that the automobile accident during his lunch break constituted a “special errand” for the employer, making the hazards of the highway a risk of the employment. Tutor v. City of Norfolk Police Department, VWC File No. 197-62-99 (May 9, 2001).

Personal Mission or Activity:

Fatal injuries sustained by employee while returning to place of employment after cashing a check during lunch hour held not compensable. Smith v. Bassett Furniture Co., 57 O.I.C. 335 (1975).

Employee shot by fellow employee while off employer’s premises en route to lunch was not compensable. Clark v. Walker Machine & Foundry Corp., 45 O.I.C. 27 (1963).

Employee who suspended carrying out his duties and left employer’s premises temporarily on a mission of his own was not under Act. Dreyfus & Co. v. Meade, 142 Va. 567 , 129 S.E. 336 , 1925 Va. LEXIS 360 (1925).

Deviation from Work:

A security guard who fell on a curb exiting a convenience store across the street from her assigned location was not in the course of her employment as the injury did not occur on the employer’s extended premises. The personal comfort doctrine applies only if “the employee uses the facilities furnished to [her] by the employer, or does not depart from the employer’s premises, or go to some place thereon where (s)he has no right to be.” Harris v. Atlantic Protective Services, Inc., VWC File No. 221-33-04 (June 13, 2006).

The personal comfort doctrine was inapplicable to claimant who was injured crossing a railroad track while returning to a construction site after purchasing coffee at a convenience store during his break because the injury did not occur on the employer’s premises or extended premises. Benitez v. JV Enterprises, VWC File No. 218-10-94 (Oct. 31, 2005) (Appeal Dismissed).

Where duties of employee are performed off the premises of employer, if he suspends his work to accomplish a purpose wholly disconnected therewith, injuries received while so engaged are not within the Act. Grimes v. Janney-Marshall Co., 183 Va. 317 , 32 S.E.2d 76, 1944 Va. LEXIS 156 (1944).

Where an employee is required to go to outside places to work, he is at all such time acting in the course of his employment, and is entitled to compensation if injured by accident at such time. However, an accident incurred while on such work related travel does not arise out of the employment if the employee has so deviated from his work related activities as to be deemed “on a frolic of his own.” Sacra v. Builders Floor Service, Inc., 78 O.W.C. 84 (1999).

Unauthorized rider in delivery car would not remove claimant from scope of employment when accident occurred on direct delivery route. Jones v. Felt’s Drug Store, Inc., 48 O.I.C. 138 (1966).

Bryan v. Highway Carriers , VWC File No. 187-70-78 (July 2, 1998) does not stand for an overly broad principle that all deviations, regardless of the reason, from a specific route are non-compensable frolics. Instead, witnesses’ credibility regarding the alleged deviation determined the outcome of Bryan. Whether an injury arises out of and in the course of the employment depends upon the peculiar circumstances of each case. No exact rule can be formulated by which every case can be decided. Doyle v. Walker, 78 O.W.C. 89 (1999).

The continuity of his employment will not be broken by a mere trivial departure or deviation. Taylor v. Robertson Chevrolet Co., 177 Va. 289 , 13 S.E.2d 326, 1941 Va. LEXIS 216 (1941); Railway Express Agency v. Lewis, 156 Va. 800 , 159 S.E. 188 , 1931 Va. LEXIS 232 (1931).

The claimant testified that he was trying to reach the pick-up destination, but that he was lost and needed directions. The evidence showed that the claimant was fulfilling the employer’s interests when the accident happened. There is insufficient evidence of a designated route or that the claimant deviated to reach his personal residence. The coincidence that his route was near his residence does not establish a deviation. Doyle v. Walker, 78 O.W.C. 89 (1999).

Deviation of no consequence; claimant back on normal route occasioned by his employment. Shorter v. Wise County School Board, 51 O.I.C. 242 (1969).

While en route to a different job site, the claimant drove towards the closest 7-11 store he was familiar with, although it was 2.2 miles in the opposite direction from the work site. He intended to buy a drink, an act clearly encompassed by the personal comfort doctrine. The claimant was not on some other purely personal errand. The Commission held that such a short deviation was not sufficient to take the claimant out of the course of his employment. Sacra v. Builders Floor Service, Inc., 78 O.W.C. 84 (1999).

Employee is still in the course of employment where employer’s interests are being served to some extent at time of accident. Fleischman Co. v. Marshall, 149 Va. 254 , 141 S.E. 139 , 1928 Va. LEXIS 364 (1928).

Injury at Housing Provided by Employer:

Injuries received in attempting to prevent theft from premises while dressing in employer’s dormitory preparatory to going on duty were compensable. Robinson v. Cavalier Hotel, 49 O.I.C. 281 (1967).

Injury sustained in living quarters where migrant workers housed was compensable. Brown v. Tomblin, 54 O.I.C. 38 (1972).

An accident which occurred during off-duty hours in living quarters furnished by the employer was held compensable. Although use of these facilities was not required, both the employer and employee derived a substantial benefit from such an arrangement. Stapleton v. Powhatan Correctional Center, 62 O.I.C. 428 (1983).

Living quarters not furnished as condition of employment or additional pay therefore claim not compensable. Bryant v. Tri-County Asphalt Co., Inc., 48 O.I.C. 25 (1966).

Injuries During Business Travels:

Employee sent to training school in New York for four weeks who was injured returning from restaurant three miles from lodging was under the Act. Eating necessary meals while traveling was part of employment. Smith v. Va. Telephone & Telegraph Co., 54 O.I.C. 347 (1972).

Compensation awarded to a flight attendant who suffered an injury when she jammed her foot against the bed in a motel room during a layover. Petitbon v. United Airlines, 62 O.I.C. 355 (1983).

A claimant who suffered a knee injury while extricating himself from the back seat of a car during attendance at an out of town conference was awarded compensation benefits. Elfino v. Virginia Department of Highways, 66 O.I.C. 30 (1987).

In awarding compensation to a travel agent, who slipped and fell from a tree limb while having her picture taken during a familiarization trip paid from her own funds, the Commission found that the trip financially benefitted both the claimant and her employer. Polozzi v. Custom Travel & Designs, Inc., 68 O.I.C. 100 (1989).

An injury received in a skiing accident was in the course of the employment but the injury did not arise out of a risk which could be fairly traced to the employment. Nachod v. Public Storage Space, Inc., 62 O.I.C. 334 (1983).

Compensation benefits were awarded to the claimant who slipped and fell in a shower while attending an out-of-town meeting. Falls v. O’Baugh Ford Chrysler Plymouth, 73 O.W.C. 91 (1994).

Injury At Home:

Volunteer firefighter who was injured while responding to an accident that occurred near his home and outside of his fire department’s jurisdiction was in the course of employment because his department regularly responded to accidents outside of its jurisdiction and he responded in a manner expected of him. Dockery v. Fort Blackmore Volunteer Fire Dept., VWC File No. 230-81-10 (March 26, 2008).

Claimant slipped in her driveway when walking from her home office, where she performed work-related duties, to her car to perform sales work for the employer. She did not describe any intervening non-work activities. Claimant showed that her injury occurred in the course of her employment by proving continuity of time, space and circumstances between her work and her injury. Miller v. Walsworth Publishing Co., VWC File No. 214-44-83 (Aug. 10, 2004).

Home-based office worker showed injury occurred during course of employment; employee fell on stairs at home after walking up, and then down, stairs to confer with wife, a fellow employee, about a business-records discrepancy; accident found to occur at place where he was reasonably expected to be. Teter v. Teter’s Interstate Exxon, VWC File No. 211-47-73 (Dec. 1, 2003).

A State Police Officer who slipped and fell on the ice while going to his police car after completing paper work at home was awarded compensation benefits. Ashe v. Department of State Police, 66 O.I.C. 39 (1987).

Finding that the injury was not a result of the employment, the Commission denied benefits to a police officer, who slipped on ice and fell while leaving his home in route to inspecting his police car prior to beginning his shift. Townsend v. Department of State Police/Commonwealth of Virginia, 73 O.W.C. 95 (1994).

Law enforcement officers who sustain accidents while off duty, although on call twenty-four hours a day, are not covered by the Act unless the officer was entrusted with a duty of the employment at the time of the accident. Stone v. Fairfax County Bd. of Sup’rs, 76 O.W.C. 109 (1997).

Injuries received by worker at home while preparing to go to work are not compensable. Staats v. Town of Vienna, 167 Va. 37 , 187 S.E. 485 , 1936 Va. LEXIS 272 (1936).

Employment of traveling salesman did not begin until he had entered his car to commence day’s work. Injury sustained when he fell on icy sidewalk on way from home to car held not compensable. Hughes v. Encylopedia Britannica, 57 O.I.C. 178 (1977).

EXPOSURE TO NATURAL FORCES.

Claimant discussing business with secretary in exterior designated smoking area was struck by ice that fell from employer’s building. The Commission held that the act of standing under ice was not an employment risk. Claimant failed to prove conditions of employment placed him at a heightened risk of being struck by ice. Reidboard v. Herndon (Town of) Public Works, VWC File No. 212-39-46 (July 21, 2004).

If an employee is injured by some natural force, such as a hurricane, tornado, or lightning, drowns due to flooding, or is injured by falling debris during an earthquake, the event does not, by itself, fasten liability on the employer. Absent other evidence, the death or disability arises from an act of God, not from the employment. However, the claimant’s injury may still be compensable if she proves that the nature of her employment brings into existence a special or peculiar risk of exposure to the disastrous forces of nature. In this case, the employee’s delivery van was struck by lightning, causing injury. Because she failed to prove that her employment exposed her to a heightened risk of lightning injury, the Commission denied her claim. Lucas v. Federal Express Corporation, VWC File 206-96-04 (October 25, 2002).

TYPES OF ACTIVITIES.

Professional Sports:

Claimant’s altercation during a hockey game arose out of and in the course of his employment and constituted an “accident” under the Act. Fighting is an integral part of claimant’s job for the employer. Jones v. Norfolk Admirals, VWC File No. 212-24-49 (Dec. 10, 2004).

Recreational Activities:

Injuries sustained by an off-duty police detective in a motor vehicle accident while driving his un-marked police car to exercise at a gym facility owned by the employer arose out of the employment. Kelley v. Co. of Henrico, JCN VA00001046469 (Dec. 16, 2016).

Claimant’s death while mountain biking at the employer’s annual conference did not arise out of the employment because claimant’s decision to ride the bike was entirely personal and had no reasonable relationship to either the employer’s business or the overall purpose of the conference. Short v. Lumos Networks Corp., JCN VA00001070344 (Dec. 12, 2016).

An injury sustained as a result of recreational activity arises out of the employment only when the activity is an accepted and normal activity within the employment. An injury by accident does not include injury resulting from an employee’s voluntary participation in employer-sponsored off-duty recreational activities which are not part of the employee’s duties. Morgan v. City of Norfolk School Board, 76 O.W.C. 359 (1997).

Whether a recreational activity is within the course of employment depends on the extent to which the employer expects or requires the employees to participate. The commission must consider whether the recreational function is so closely associated with the employment as to be considered an incident of it. Other factors to be considered are the degree to which the employer derives a benefit from the activity, the degree of sponsorship and participation by the employer, whether the activity occurs on premises associated with the employment, when the activity occurs in relation to work, and the frequency or period over which the activity has been conducted. Morgan v. City of Norfolk School Board, 76 O.W.C. 359 (1997).

The Commission rejected the employer’s assertion that the employee was injured while participating in a “trust-fall” at a leadership conference in “off-duty recreational activities which are not part of the employee’s duties.” The employer sponsored the conference, noting that it was intended to “enhance team building and trust” at work. The employee’s supervisor attended the conference, and the “trust-fall” was one of the scheduled events. Transportation to the conference, the conference fee, as well as room and board were all provided for the employee by the employer. Finding that the activity was “so closely associated with the employment to be considered an incident of it,” the Commission found the injury compensable. Defibaugh v. Philip Morris USA, VWC File No. 200-42-75 (January 30, 2001).

Recreational activities on the premises at a time closely related to working hours and involving some concurrent benefit to employer are incidents of employment and injuries while engaged therein arise out of and in the course of employment. Shaffer v. Tides Inn, 36 O.I.C. 425 (1954); Mabe v. Visador Co., 59 O.I.C. 178 (1980).

Compensation benefits were denied to an employee who was injured prior to the work day while playing basketball at the employer’s premises on the basis that the activity was not an accepted and normal activity at the place of employment. Mullins v. Westmoreland Coal Co., 10 Va. App. 304, 391 S.E.2d 609, 6 Va. Law Rep. 2356, 1990 Va. App. LEXIS 84 (1990).

Baseball teams organized to play between various stores of defendant. Injury to claimant during practice session away from employer’s premises but during normal working hours was compensable. Watson v. Giant Open Air Market, 55 O.I.C. 368 (1973).

A minister who suffered a knee injury while participating in a weekly basketball game with fellow ministers was entitled to compensation benefits. Wilson v. First Assembly of God Church, 67 O.I.C. 93 (1988).

Compensation benefits were denied to the claimant who suffered a knee injury while playing basketball in a high school gymnasium during a lunch break at a safety and first aid training session. The record failed to establish that the basketball game was required, expected, or benefitted the employer. Kennedy v. Clinchfield Coal Co., 68 O.I.C. 92 (1989).

The claimant, who suffered an injury outside of working hours during a company softball game, was entitled to benefits because the accident occurred at the employer’s premises while he was performing an activity that was anticipated and supported by the employer. The employer’s sports program was an integral part of the carrying on of its business. Hughes v. Anheuser Busch Company, Inc., 69 O.I.C. 98 (1990).

Compensation awarded where claimant sustained injury while participating in hockey game as part of his employment and the activity inured to the benefit of the employer. White v. Skateland Associates, 60 O.I.C. 137 (1981).

Compensation benefits were awarded to a claimant who suffered a knee injury during a basketball game because his job assignment required him to socialize with fellow employees outside of the work place in order to identify drug users. Anderson v. Wackenhut, 66 O.I.C. 35 (1987).

Compensation benefits were awarded to an employee who was killed by a motor vehicle as she exited her employer’s place of business after attending a New Year’s Eve party. The employer sponsored party was so closely connected and associated with the employment in purpose, time, location and function as to make the injury arise out of and in the course of the employment. Kum Ja Kim v. Sportswear, 10 Va. App. 460, 393 S.E.2d 418, 6 Va. Law Rep. 2728, 1990 Va. App. LEXIS 115 (1990).

Accident which occurred at company picnic which employees were encouraged but not required to attend did not arise out of the employment. Jones v. Bank of Virginia, 60 O.I.C. 244 (1981).

Death of city fireman from heart attack while jogging (an exercise activity which, while not mandatory, was department sponsored and approved of by the employer) held to have arisen out of and in the course of employment. Moss v. City of Alexandria, 57 O.I.C. 253 (1977); Smith v. City of Richmond Bureau of Fire, 58 O.I.C. 333 (1978).

Voluntary Actions:

Benefits were awarded to claimant who was injured providing emergency assistance to an office co-worker on the basis that her actions were reasonable and there was a sufficient nexus to her employment. Brewer v. Va. Employment Commission/Commonwealth of Va., VWC File No. 224-63-42 (Aug. 18, 2006) see also Laster v. Verizon Communications, VWC File No. 217-27-54 (Nov. 14, 2005) (Benefits awarded to telephone repair man who slipped on ice going down steps to direct an ambulance to a customer’s apartment).

Employee’s injury, caused while assisting retail customer in jump-starting car, did not arise out of or in the course of employment; employer’s policy was that customer service did not include volunteering to assist customers with vehicle problems, other than providing telephone to call for help; employee not performing any direct or incidental duties at time of injury, and actions at time of injury significantly deviated from employment. Quirk v. Target, VWC File No. 213-72-58 (Apr. 23, 2004).

Employee’s injury, which was found to result from slamming hand on hard surface in response to his anger, did not arise out of employment; employee created risk of injury as a result of his manifestation of anger; risk was product of employee’s choosing, and not of reasonable requirement of employment. Duvall v. Federal Mogul Corp., VWC File No. 211-39-67 (Dec. 18, 2003).

Employee did not remove himself from employment by working under bridge, where he suffered injury; employer warned against standing under bridge, but did not allege violation of safety rule; although employee acted negligently, he was injured while fulfilling work duties at place reasonably near where he was expected to be. Slayton v. Cleco Corp., VWC File No. 211-29-72 (Nov. 13, 2003).

The claimant did not have a flu injection merely as a volunteer. The claimant, a nurse practitioner, was “strongly encouraged” to undergo an annual flu injection because she routinely treated pregnant patients, and patients with diabetes, HIV-AIDS and other “high risk” conditions. The claimant established that her vaccination protected her patients, and it kept her working instead of being home sick. After the injection, the claimant suffered injurious side effects. Because the employer “strongly” encouraged the vaccination, the benefits of the vaccination primarily inured to the employer’s benefit and the claimant was not required to pay for the injection, the Commission found the injury arose out of and in the course of her employment. Eysenbach v. Old Dominion University, VWC File No. 208-70-64 (November 15, 2002).

A claimant who suffered paresthesias as the result of blood being drawn at an employer’s sponsored health fair was not entitled to compensation benefits because she voluntarily participated without coercion from her employer and was not performing any duty incidental to her employment. Goodman v. Commonwealth of Virginia-Department of Health and Employee Relations, 67 O.I.C. 96 (1988).

A claimant who was injured while off the clock but at the job site to assist a co-worker was acting as volunteer and not entitled to compensation benefits. Jackson v. Ratcliff Concrete Company, 8 Va. App. 592, 382 S.E.2d 494, 6 Va. Law Rep. 155, 1989 Va. App. LEXIS 108 (1989).

Climbing a tree pursuing squirrel, employee voluntarily put himself in potentially dangerous situation not required by work assisting groundskeepers. Windell v. National Memorial Park, Inc., 52 O.I.C. 293 (1970).

Employee who elected to go swimming on employer’s premises during lunch hour incurred dangers of his own choosing outside of requirements of employment and not incidental to employment. Jessee v. Commonwealth of Virginia Dept. of Conservation and Economic Dev., 58 O.I.C. 201 (1978).

A claimant who was injured while acting as a “volunteer” without any apparent necessity other than humanitarianism was denied compensation. Annis v. Virginia Employment Commission, 62 O.I.C. 6 (1983).

Though claimant was injured while assisting motorist with disabled vehicle on employer’s premises, injury did not arise out of the employment. Cuthbertson v. Beatrice Pocahontas Coal Company, 60 O.I.C. 118 (1981).

Claimant’s injury while assisting coworker who fainted arose out of her employment. Compensation is payable for injuries sustained in the rescue of coemployees on the theory that the employer has a duty to aid its own employees in peril and that any employee is impliedly authorized to discharge this duty in an emergency. Gibson v. Fabri Centers of America, Inc., 75 O.W.C. 372 (1996).

Employee drive-in theater manager, injured in truck accident was in actual work-duty status and not mere volunteer. Gaines v. VDT, Inc., 57 O.I.C. 126 (1977) (appeal denied).

Where a truck driver arrived at the scene of an automobile accident and was injured while attempting rescue of the victims, his injury arose out of his employment when occasion for the rescue was presented because of nature of his employment. This is especially applicable to those whose work requires them to operate motor vehicles on streets and highways. Cash v. Barr Tire Co., Inc., 41 O.I.C. 14 (1959).

Compensation denied for injuries sustained by off-duty firefighter summoned to neighbor’s burning house; activity held not to be in course of employment. Wray v. City of Norfolk Fire Dept., 58 O.I.C. 368 (1978).

Horseplay:

Claimant injured after customer grabbed him around the neck was victim of assault not horseplay. Regardless of whether assailant’s motivation is playful, amorous, vindictive or hostile, it is still an assault. Claim denied because assault was neither directed at claimant as employee nor consequence of conditions under which employer required work to be performed. Baker v. Lowe’s Home Centers, JCN VA00000990523 (Mar. 29, 2016).

A security guard was forcefully struck by an employee of the business to which he was assigned. The resulting injury was not compensable because the incident was neither horseplay nor an assault within the Act. Wilkie v. Inter Con Security Systems, Inc., VWC File No. 228-69-45 (Sept. 17, 2007).

Employee’s injury to hand from butcher knife not compensable; evidence showed cook’s injury resulted from swinging knives in martial arts maneuver; employee not engaged in work activity at time of injury and thus injury wholly unrelated to employment. Gunter v. Montgomery Reg’l Hosp., VWC File No. 209-32-04 (Mar. 18, 2003).

Employees not participating, but innocently injured by pranks of other employees, are entitled to compensation. Miller v. Rujoco, Inc., 52 O.I.C. 175 (1970); Talor v. Celanese Corp. of America, 30 O.I.C. 257 (1948); Gobble v. Booher Auto Auction, Inc., 59 O.I.C. 108 (1980).

Horseplay is an affirmative defense. Consequently the employer had the burden of establishing that the employee engaged in horseplay and the activity actually caused the injury. Simms v. Boddie Noell Enterprises, Inc., 63 O.I.C. 303 (1984).

While the claimant’s actions were ill-considered and possibly negligent, they did not constitute “horseplay” in the sense that she created a risk beyond that of the employment. Ferrell v. Comdial Telephone, 64 O.I.C. 137 (1985).

Compensation is granted where claimant is not engaged in horseplay and is injured while on lunch break. Hauser v. Deep Meadow Correctional Center, 60 O.I.C. 196 (1981).

Injuries occasioned by so-called “horse play” between claimant and fellow employees, where claimant instigated or participated in the occurrence, are not compensable. Carr v. Sterling Development Corp., 51 O.I.C. 38 (1969); Henry v. Henry, 41 O.I.C. 74 (1959); Strickner v. Appalachian Wood Preservers, Inc., 35 O.I.C. 78 (1953); White v. Jones, 29 O.I.C. 167 (1947); Gragano v. Virginia Opera Association, 77 O.W.C. 127 (1998).

Accidents that occur through the employer condoning horseplay arise out of the employment and become the responsibility of the employer. Where supervisory personnel participate in the horseplay, there is no question but that it is being condoned by the employer. Gragano v. Virginia Opera Association, 77 O.W.C. 127 (1998).

Where another employee begins the play, if claimant thereafter freely engages therein he is not within the Act. Harris v. Thompson-Starrett Co., Inc., 26 O.I.C. 183 (1944).

“Indian wrestling” with co-workers; not a peril of services rendered to employer nor reasonably incident thereto. Spitzer v. Intervestors, Inc., 54 O.I.C 354 (1972).

Also see notes to § 65.2-306 .

Assault/Murder:

In absence of evidence that assault was motivated by claimant’s status as professor or assailant’s status as student, compensation for injuries sustained by college professor in assault by former student with mental health problems denied. Gava v. J. Sargeant Reynolds, JCN VA00001305668 (Dec. 27, 2018).

Claimant injured after customer grabbed him around the neck was victim of assault not horseplay. Regardless of whether assailant’s motivation is playful, amorous, vindictive or hostile, it is still an assault. Claim denied because assault was neither directed at claimant as employee nor consequence of conditions under which employer required work to be performed. Baker v. Lowe’s Home Centers, JCN VA00000990523 (Mar. 29, 2016).

A security guard was forcefully struck by an employee of the business to which he was assigned. The resulting injury was not compensable because the incident was neither horseplay nor an assault within the Act. Wilkie v. Inter Con Security Systems, Inc., VWC File No. 228-69-45 (Sept. 17, 2007).

Generally, an employee assaulted at work is entitled to benefits if the assault was directed against the employee because of his employment. However, compensation is denied if the injured employee is the aggressor or instigator. Where the altercation would have been avoided but for the actions of the claimant, compensation is barred. The employee’s abusive and threatening words, the nature of the racial epithet used, and the threatening gestures of the employee were conduct that provoked the assault and established that he was the aggressor. Powell v. A. E. Morris Hauling, Inc., 75 O.W.C. 318 (1996).

An employee injured as result of assault must show that the assault was directed against him as an employee or because of his employment. Gowin v. Friendly Motor Sales, Inc., 50 O.I.C. 156, 158 (1968) (appeal denied); Freeman v. Standard Furniture Co., 57 O.I.C. 125 (1976) (appeal denied); Silverman v. Metco Metals, Inc., 57 O.I.C. 329 (1977).

If assault is result of a quarrel or a personal robbery and has no relation to work being performed by employee, the injury cannot be said to arise out of employment. Hopson v. Hungerford Coal Co., 187 Va. 299 , 46 S.E.2d 392 (1948); Campbell & Co. v. Messenger, 171 Va. 374 , 199 S.E. 511 (1938); Freeman v. Int’l. Brotherhood of Electrical Workers, 32 O.I.C. 443 (1950); Brown v. V.P.I., 32 O.I.C. 439 (1950); Torian v. Boston Durham Ice Cream Co., Inc., 32 O.I.C. 101, 239 (1950); Cole v. Dept. of Highways and Transportation, 58 O.I.C. 65 (1979).

Compensation will be awarded, regardless of motive of assailant, if employer knew of assailant’s presence on the premises and of the likelihood of assault and took no steps to protect worker from the unusual hazard. Lynchburg Steam Bakery v. Garrett, 161 Va. 517 , 171 S.E. 493 , 1933 Va. LEXIS 343 (1933).

The claimant began working for the employer in Kentucky. The employer provided transportation by company vehicle from the Eastern Shore to Kentucky and paid for employees to stay at the Hatfield Inn. Work was completed on March 16, 1996, but employees were allowed to stay an additional night. On the following morning, the claimant placed his gear in the company truck and went back into the hotel. The claimant returned to find that a coworker had removed the claimant’s items and placed his own gear in that location. The claimant put his own items back, and a dispute arose. The claimant turned away, and the coworker hit him in the back of the head with a carpenter’s level. The Commission concluded from this evidence that it was the usual custom for the employer to provide transportation to and from work sites in other states. Therefore, actions directly related to the ride, such as loading luggage, were part of the claimant’s work, and an altercation relating to the placement of luggage was work related. Walker v. Carolina Tool & Millwright, 78 O.W.C. 128 (1999).

The claimant began working for the employer in Kentucky. The employer provided transportation by company vehicle from the Eastern Shore to Kentucky and paid for employees to stay at the Hatfield Inn. Work was completed on March 16, 1996, but employees were allowed to stay an additional night. On the following morning, the claimant placed his gear in the company truck and went back into the hotel. The claimant returned to find that a coworker had removed the claimant’s items and placed his own gear in that location. The claimant put his own items back, and a dispute arose. The claimant turned away, and the coworker hit him in the back of the head with a carpenter’s level. The Commission concluded from this evidence that it was the usual custom for the employer to provide transportation to and from work sites in other states. Therefore, actions directly related to the ride, such as loading luggage, were part of the claimant’s work, and an altercation relating to the placement of luggage was work related. Walker v. Carolina Tool & Millwright, 78 O.W.C. 128 (1999).

A sexual assault on a police woman by her co-worker was personal and not directed against her as an employee or because of her employment. In addition, her employment at the central police desk did not substantially increase the risk of sexual assault. Carr v. City of Norfolk, 15 Va. App. 266, 422 S.E.2d 417, 9 Va. Law Rep. 435, 1992 Va. App. LEXIS 266 (1992).

Compensation benefits were denied to an employee who was mugged while running errands for her employer, including making a bank deposit, because the evidence failed to establish that the injury arose out of her employment. Gamache v. Reynolds Foil Federal Credit Union, 70 O.I.C. 103 (1991).

Compensation benefits to the claimant who was assaulted and robbed of personal money while taking trash to the dumpster outside his place of employment were denied on the basis that the assault did not arise out of his employment and was personal in nature. Khalio v. WK’s Cafe, 67 O.I.C. 89 (1988).

The injury received by a parking lot attendant when he was knocked to the ground by a fleeing individual suspected of a crime in a nearby store was not caused by exposure to an actual risk of his employment. Carter v. Yellow Cab Company, 63 O.I.C. 57 (1984).

Assault on a teacher on school premises held not to be an actual risk of her employment. Grimes v. Arlington County School Board, 63 O.I.C. 153 (1984).

Stewardess injured during layover must show that the assault by a third party stranger was directed against her as an employee, even though she would not have been at that location but for her employment. Kuhn v. Eastern Airlines, Inc., 60 O.I.C. 272 (1981).

A resident property manager, who was injured when she slipped on wet stairs while securing a laundry room after working hours and was then assaulted, was in the course of her employment. Both the employer and employee benefitted from her presence on the premises beyond the regular office hours. The assault, in an area where criminal attack could reasonably be anticipated, was a risk of the employment that arose out of and in the course of the employment. Burch-Rishel v. Canterbury Square Apartments, 69 O.I.C. 102 (1990).

Compensation benefits were denied to an employee who was assaulted returning from dinner while attending an out of town seminar. Perkins v. Commonwealth of Virginia/VPI Extension Division, 65 O.I.C. 118 (1986).

While finding that evidence of a non-work related motive precluded the application of the presumption to an employee who was fatally assaulted by an unknown assailant in an area of a hotel frequented by vagrants and drifters, the Court awarded benefits on a rational inference that the death arose out of and in the course of the employment. Thomas Nelson Limited Partnership v. Fritz, 11 Va. App. 269, 397 S.E.2d 891, 7 Va. Law Rep. 696, 1990 Va. App. LEXIS 190 (1990).

When a co-worker, who had earlier been teased by his fellow employees and an assistant foreman for wearing yellow socks at work, assaulted the claimant and knocked him from the platform on which he was working to the floor, the injuries sustained in the fall were found to have arisen out of the employment. Slaughter v. Exposaic Industries, Inc., 63 O.I.C. 312 (1984).

Assault provoked by arguments over work earlier in day; on employer’s premises after working hours, waiting for usual ride home was compensable. Posey v. Hammett Stone Co., Inc., 52 O.I.C. 198 (1970).

Assault provoked by argument over refusal to extended credit was compensable. Gray v. East Coast Oil Corp. (appeal denied), 58 O.I.C. 154 (1979).

Employee killed by unknown assailants after going to a private residence to recover merchandise stolen from his employer was not covered under the Act. While he was about his employer’s business with his permission, there was no evidence that the attack was a result of the work related activity. Freeman v. Standard, 57 O.I.C. 125 (1976).

Claimant in argument with employer, evicted from premises; injury arose out of and in course of employment. Patrick v. Kings Palace, Inc., 52 O.I.C. 196 (1970).

Rape of desk clerk in the course of her employment was not directed against her as an employee of the hotel, therefore the attack did not arise out of her employment. Bradley v. Hotel Jefferson Corporation, 60 O.I.C. 55 (1981).

Benefits were denied to a nurse assaulted on employer’s parking lot was because she was a female and not related to work. Bowling v. Memorial Hospital, 54 O.I.C. 25 (1972).

Compensation benefits were awarded to a bartender, who after dispersing six to ten youths from the restaurant for yelling obscenities, was later randomly shot while standing behind the bar. The Commission found that the claimant was responsible for maintaining order and that the assailants returned to attack this specific restaurant for a particular purpose. Keppel v. Bull Ring, Inc. t/a Anvil Restaurant, 73 O.W.C. 97 (1994).

Compensation benefits were awarded to the claimant who, in conformity with training provided by the employer, was stabbed after advising two fighting customers to leave. Curtis v. The Southland Corporation, 73 O.W.C. 100 (1994).

Where claimant was shot at work by estranged husband, accident did not arise out of the employment. Matherly v. The Southland Corporation, 60 O.I.C. 303 (1981).

Bullet fired from unknown source, injury not caused by hazard arising out of employment. Carawan v. Creasy & Whiteed, 42 O.I.C. 25 (1960); Turner v. Burger King, 59 O.I.C. 295 (1980).

Where claimant was the aggressor compensation will generally be denied. Meekins v. Saga Food Service, Inc., 53 O.I.C. 200 (1971); James v. Thom McAn Shoe Store, 58 O.I.C. 198 (1978); Bataineh v. King of Pita Bakery, VWC File No. 201-57-41 (July 6, 2001).

Injuries suffered during an altercation with a co-worker are not compensable where the claimant was the aggressor. Walker v. 7 11, 74 O.W.C. 115 (1995); Bataineh v. King of Pita Bakery, VWC File No. 201-57-41 (July 6, 2001).

Compensation was awarded upon a finding that even if the claimant were the aggressor, the disabling injuries were inflicted by the other party after the altercation had ended. Stitt v. Install, Inc., 62 O.I.C. 432 (1983).

Person who strikes first blow not necessarily the aggressor. Daniel v. Sash, Door & Glass Corp., 51 O.I.C. 70 (1969).

Compensation benefit awarded to Union agent shot while managing union affairs. Freeman v. International Brotherhood of Electrical Workers, 32 O.I.C. 443 (1950).

Deceased and co-employee performing janitor service; argument arose in connection with work. Brown v. V.P.I., 32 O.I.C. 439 (1950).

Compensable when purpose of attack was to obtain property of employer (automobile); employee also robbed. Gorwin v. Friendly Motor Sales, Inc., 50 O.I.C. 156, 158 (1968) (appeal denied).

Death of store manager shot at closing time by men he had earlier asked to be quiet in store arose out of the employment. Walters v. Safeway Stores, Inc., 56 O.I.C. 324 (1975) (affd. on review, appeal denied).

Evidence of argument with co-worker at work on day of murder was sufficient to find death arose out of the employment. Paytes v. A & P, 58 O.I.C. 272 (1978).

Murder of a general district court judge while he was holding session of court by an assailant, whom he had found guilty of a speeding conviction one month earlier, found to have arisen out of the employment. Cunningham v. Commonwealth of Virginia, 57 O.I.C. 92 (1976) (affd. on review) (appeal denied).

Murder of a general district court judge while he was holding session of court by an assailant, whom he had found guilty of a speeding conviction one month earlier, found to have arisen out of the employment. Cunningham v. Commonwealth of Virginia, 57 O.I.C. 92 (1976) (affd. on review) (appeal denied).

Judge killed at his home by assailant disgruntled by judge’s decision was compensable. Colosanto v. City of Alexandria, 55 O.I.C. 100 (1973).

Compensation benefits were awarded to the claimant who was killed by a gunshot wound as he drove through a high crime area from the main office to his assigned location. Whetsell v. George A. Roberson, CPA, 73 O.W.C. 102 (1994).

Also see notes under “Presumption” below.

Self-inflicted pistol shot not hazard arising out of employment. Henderson v. Basic Constr. Co., 47 O.I.C. 167 (1965) (appeal denied).

Death was from a self-inflicted rifle shot and not from accidental fall while shooting pigeons at school. Henley v. William King Elementary School, 50 O.I.C. 184 (1968).

Whether fall from roof was by accident or design is of no moment in determining compensability where duties of employment did not entail going on to roof of cupola. Stanwitz v. Leas & McVitty, Inc., 42 O.I.C. 122 (1960).

SPECIFIC TYPES OF INJURIES.

Insect Bites:

In order to demonstrate that her spider bite injury arose out of her employment, claimant must do more than show that insects sometimes were observed on the employer’s property. She must prove that her risk of exposure to spiders was greater than that experienced by the general public. Whittemore v. Williamsburg Landing, Inc., JCN VA00001058566 (March 14, 2017).

Because the claimant’s work as a cook required her to wash dishes at night in the basement where spiders were previously seen in the sink, her spider bite arose out of a risk of her employment. Hobbs v. Greyston Manor, Inc., VWC File No. 228-38-38 (May 1, 2007).

The claimant felt a sharp stinging sensation when she reached into a stack of new linens in a clean windowless room in a nursing home. The majority found that the claimant’s job as a CNA did not expose her to a greater risk of insect bites than that encountered by the general public. Barrett v. Blue Ridge Rehab Center, VWC File No. 228-84-38 (April 5, 2007).

Stairs/Fall:

Claimant left scene of accident and later returned and observed liquid on stairs. Evidence was sufficient to infer foreign condition was present at time of accident. Shifflett v. Pamela Marzban, DDS, PC, JCN VA00000879889 (Dec. 4, 2014).

The claimant felt a pop in his knee as he was ascending steep scaffolding steps, which required the claimant to pull himself up with his arms while pushing off with his foot. This additional effort was necessitated by the steepness of the stairs and was a risk of his employment, even though there was no flaw or defect in the stairs. The claimant proved a causal connection between his injury and the manner in which he was required to perform his work. Shakra v. Truland Systems Corporation, JCN VA00000296644 (Aug. 2, 2011).

The claimant was injured but conscious at the bottom of the stairs leading to the employer’s designated smoking area. He had no recollection of the event or of any significant physical problems prior to the fall. The stairs had no defect. The claimant died the next day. Evidence is insufficient to prove an idiopathic fall or to infer a risk of the employment caused the fall. Tweed v. Newport News Shipbuilding & Dry Dock, VWC File No. 227-87-41 (June 26, 2007).

Because his work created the risk and need to rush, benefits were awarded to a courier whose knee froze or gave way as he hurried down steps in order to meet the employer’s daily deadline for delivering packages. Alexander v. Federal Express Corp., VWC File No. 224-22-90 (Aug. 22, 2006).

Claimant’s actions in rushing down a hall to prevent a nursing home resident from leaving the building and to turn off a motion sensor were reasonably incidental to her specific duties, benefited her employer and were consistent with actions that would be expected of an employee when confronted with this situation. Crabtree v. Heritage Hall, VWC File No. 217-16-42 (Feb. 11, 2005).

Claimant failed to establish curb over which he tripped and fell was uniquely dangerous because of a defect or the presence of a slippery substance, or that the conditions of his employment caused the fall. Morris v. Virginia Auto Glass, Inc., VWC File No. 217-44-04 (Oct. 26, 2004).

Claimant’s work required her to traverse in an area covered by gravel, rocks, dirt and asphalt. Claimant fell when she stepped on a two-inch rock that skated out from under her. The Commission found the rock sufficiently large to be considered a condition of the employment. Winall v. Newport News Shipbuilding & Dry Dock Co., VWC File No. 216-67-35 (Oct. 22, 2004).

Claimant’s fall from a car carrier trailer arose out of his employment where he climbed on top of the trailer to check ramps and wheel alignment, requiring him to stand on narrow metal grating. The combination of the height, narrow grating, and space between the truck and trailer was sufficient to establish that the conditions of claimant’s workplace caused or contributed to his injury. Farris v. John D. Reynolds T/A J.R. Classic Autos, VWC File No. 216-17-46 (Sept. 1, 2004).

Employee’s injuries from fall down stairs, caused by rushing to “catch” fellow employee, held to arise out of employment; employee’s supervisor instructed employee to rush, and employee testified that she was rushing when she fell down stairs. Woodson v. Central Va. Training Ctr., VWC File No. 209-08-46 (Mar. 1, 2004).

Employee’s injury caused by tripping over heel of fellow employee arose out of employment; employees, who worked in hospital, were walking fast to retrieve patients; fellow employee stepped in front of employee, causing employee to trip over fellow employee’s heel; injury connected to conditions under which work was to be performed and not result of merely tripping over own feet while walking. Jacob v. INOVA Mount Vernon Hosp., VWC File No. 211-34-35 (Dec. 4, 2003).

Fall at work shown to arise out of employment when evidence established that employee, who was performing security screenings on airline passengers and fell while turning in the course of screening a passenger, tripped over a one-inch rubber strip joining a hard floor with a carpeted floor. Yousef v. Atlantic Coast Airlines, Inc., VWC File No. 211-81-31 (July 11, 2003).

Employee’s injury caused by awkward exit from truck off ladder arose out of employment; ladder not defective or unusually high but employee’s step off ladder awkward when toe caught ladder, causing him to land on ankle awkwardly. Shortt v. Humphrey’s Enterprises, Inc., VWC File No. 208-04-35 (May 16, 2003).

For Court of Appeals Cases involving stairs see:.Malik v. McDonalds Corp., Record No. 0399-92-4 & 0263-92-4 (September 29, 1992); Reston Homeowners Association, et al. v. Noble, Record No. 1704-92-4 (June 29, 1993); Centerville Automotive, MSS, Inc. v. Vanover, Unpublished Opinion, Record No. 1439-94-4 (February 28, 1995); Southside Virginia Training Center/Commonwealth of Virginia v. Shell, 20 App. 199, 455 S.E.2d 761 (1995); Nottoway Correctional Center/Commonwealth of Virginia v. Thompson, Unpublished Opinion, Record No. 1469-94-2 (April 11, 1995); Marion Correctional Treatment Center v. Henderson, 20 Va. App. 477, 458 S.E.2d 301 (1995); Mildred Hackney v. M P & M Coal Co., Inc., Record No. 0012-96-3 (April 30, 1996) (Unpublished Memorandum Opinion); Janette R. Ogle v. National Association of Elementary School Principals, Record No. 2708-95-4 (May 14, 1996) (Unpublished Memorandum Opinion); City of Portsmouth v. Grant, Record No. 0029-96-1 (July 2, 1996) (Unpublished Memorandum Opinion).

In determining whether an injury while climbing a ladder arises out of the employment, the case law pertaining to ordinary steps and stairways is inapplicable, since the work risks are greatly increased with a ladder. Miller v. Canon of Virginia, Inc., 79 O.W.C. 56 (2000).

The evidence established that the claimant was descending a staircase with a hand truck loaded with electronic equipment that had been used to complete a service call. The equipment on the hand truck shifted, and the claimant attempted to prevent it from falling. While doing so, he lost his balance and fell down the steps, sustaining injury. This is not a case where an injured employee’s fall is unexplained. Rather, the evidence inexorably leads to the conclusion that the claimant’s fall was caused by a shifting weight on the hand truck and his effort to stop the equipment from falling. The Commission found that the claimant’s fall and resulting injury were caused by a condition of his employment. Sinkfield v. Aerotech Contract Engineering Serv., 76 O.W.C. 493 (1997).

Where the employee could not hold onto a stairway railing and stop her fall because she was carrying supplies related to her work, her injuries arise out of her employment. Emerson v. Econo Clean Janitorial Service, Inc., 76 O.W.C. 32 (1997).

Compensation benefits were denied an employee who felt a pain in her right leg while carrying cleaning supplies up steps. The evidence failed to establish that the claimant slipped, tripped or fell or that the cleaning supplies or steps contributed to her injury. Elliott v. Holiday Inn — 39th Street, 69 O.I.C. 108 (1990).

Employee descending two-story scaffold carrying a tripod and a carpenter’s level twisted knee when his foot caught on a handrail post. Held, the injury arose out of the employment. Hurst v. Protec Construction Service, Inc., 77 O.W.C. 6 (1998).

The mere fact that a step is different from other steps, standing alone, does not render it a causative danger peculiar to the work and not common to the neighborhood. Cooksey v. City of Richmond Emergency Comm., 76 O.W.C. 518 (1997).

Compensation was awarded to a claimant who fell down stairs after her heel caught in rubber matting on the step. Larson v. Signet Bank, 74 O.W.C. 119 (1995).

As the claimant stepped aside to allow arriving workers to pass, he stepped half on the concrete walk and half on recessed dirt. Because grass had grown up above the concrete, he could not see that drop down from the concrete. As a result, he twisted his ankle and fell, injuring his shoulder as he grabbed onto a post. The Commission held that a condition of the workplace contributed to the accident. Clark v. Goodyear Tire & Rubber Co., 76 O.W.C. 145 (1997).

Compensation benefits were awarded to an employee who suffered injury when he fell from a wall onto a stairwell while tying his shoe. Mileham v. Sal’s Italian Restaurant & Pizza, 70 O.I.C. 139 (1991).

In awarding compensation benefits to a claimant who misstepped and fell while descending an elevated court room witness stand, the Commission found that an employee is exposed to a specific risk while ascending or descending steps in the course of the employment and the risk arose out of the employment. Parker v. S. J. Conner & Sons, 68 O.I.C. 86 (1989).

The claimant fell while stepping off a raised dispatch area. She alleged that her fall was caused by her slipping on the metal strip on the edge of the step, but no evidence was elicited to indicate that the metal strip was worn, slippery, or defective in any manner, and she testified that the conditions on the date of her accident were the same as those that had been in place for several years. There was no evidence of a foreign substance on the metal strip, the step, carpeting, or the claimant’s shoes, that would have caused her to slip, nor did she attribute her fall to any defective condition of the step or the workplace. The Commission found that the claimant’s fall was caused by her inattention and distraction unrelated to her work, and that she placed her foot down near the edge of the step without realizing she was that close to the edge, and fell. This did not prove that her accident and injury arose out of the employment. Cooksey v. City of Richmond Emergency Comm., 76 O.W.C. 518 (1997).

Compensation benefits were awarded to the claimant who misstepped and fell while backing down the stairs with a broom. Garland v. Wythe County School Board, 73 O.W.C. 81 (1994).

In awarding compensation benefits to a teacher’s aide who while descending steps slipped on the top step and twisted her foot, the Commission noted that the act of ascending and descending stairs required concentration and an altered gait. Benefits may be awarded when the necessity of traversing different or varied surfaces in the work place in combination with inattention, diversion or negligence, caused a claimant to suffer an injury from a misstep or a slip. Wallace v. Russell County School Board, 68 O.I.C. 83 (1989).

Compensation benefits were awarded to the claimant who while running to escape a fire ran through a fire door, rapidly turned to descend a flight of steps, and felt her knee give way as she was going down the stairs. Hairston v. J. D. Bassett Manufacturing Co., 73 O.W.C. 83 (1994).

Although there was nothing unusual about the stairs which the claimant, a correctional officer, was descending when his foot slipped, the requirement that he look at the guard tower to see if his wave was acknowledged while on the steps provided the critical link to the employment necessary to find his case compensable. Henderson v. Commonwealth of Virginia/Marion Correctional Treatment Center, 73 O.W.C. 85 (1994).

Compensation benefits were denied to the claimant who felt pain in his foot as he ran up the steps to make a delivery. Thompson v. Infinite Color, Inc., 73 O.W.C. 87 (1994).

A competitive car sales environment created by the employer increased the risk of falling on stairs and directly contributed to cause the employee’s fall. Chettiar v. Checkered Flag Motor Car Co., 77 O.W.C. 15 (1998).

The claimant, who worked at a fast food restaurant, was asked to go to an outside storage area to retrieve some cartons. Her uncontradicted testimony was sufficient to establish that there was grease on the soles of her shoes from working in the kitchen area, and that the ramp where she fell was sloped and wet from rain. The Commission held that her slip and fall was caused by the substances present on her shoes and the wet ramp, hazards peculiar to her employment, and the injury was compensable. Nichols v. Hardee’s, 76 O.W.C. 428 (1997).

Evidence that shows the employee fell by tripping over either an elevated door sill or an adjacent mat is sufficient to prove a compensable accident. It is not necessary that the employee specifically establish one cause of her fall if she establishes one or more risks of her employment to be the cause of the fall. Turner v. Southern Virginia Mental Health Inst., 75 O.W.C. 199 (1996).

The Commission found that the failure of the claimant to mention debris on the floor in an incident report prepared for the employer was of no consequence, since she testified credibly that too much was going on when she filled out that report, and the report did not ask what caused her to fall, only to describe what happened. Caceres v. Kids R Us, 76 O.W.C. 312 (1997).

It is unnecessary for a claimant to positively identify the substance that causes a slip and fall. Compensation was awarded to a claimant who slipped while walking across a wet floor. Stevens v. Anheuser Busch Co., Inc., 74 O.W.C. 142 (1995).

While it might be better from an evidentiary consideration to have a more certain identification of the substance that caused the claimant’s shoes or the floor to be slippery, that is not an essential element to prove a compensable accident. The evidence is sufficient if the Commission can reasonably infer from the record that there was a substance on the floor or the claimant’s shoes that caused the fall in the course of the claimant’s employment. Nichols v. Hardee’s, 76 O.W.C. 428 (1997).

Compensation benefits were awarded to the claimant who, after parking his car on an adjacent highway where employees normally park, entered the employer’s premises, walked through a paved parking lot, climbed steps to his assigned building, and twisted his knee after stepping on a rock. Wolford v. Western Temporary Services, 73 O.W.C. 89 (1994).

An idiopathic fall caused by fainting or other personal illness may be compensable if the injuries are shown to have been aggravated by, caused by, or attributed to a risk of the employment. Chambers v. Commonwealth of Virginia/Buckingham Correctional Center, 70 O.I.C. 110 (1991).

The employee was walking across the employer’s parking lot when she heard an approaching bus and turned to make sure she was not in its path. She fell as she turned back, but did not know what caused her to fall. Held, the injury did not arise out of the employment, since there was no evidence that the distraction from the bus contributed to her fall. Kashin v. Co. of James City Bd. of Supervisors, 75 O.W.C. 344 (1996).

The employee was walking across the employer’s parking lot when she heard an approaching bus and turned to make sure she was not in its path. She fell as she turned back, but did not know what caused her to fall. Held, the injury did not arise out of the employment, since there was no evidence that the distraction from the bus contributed to her fall. Kashin v. Co. of James City Bd. of Supervisors, 75 O.W.C. 344 (1996).

Where “something snapped” in claimant’s leg as she walked along a level, clean, unobstructed and well-lighted hall and did not involve a slip, trip, stumble or fall there is no connection between conditions of work environment and resulting injury. Accidents resulting from risks to which all persons are equally exposed and not traceable to some degree to the particular employment are excluded from coverage under the Act. Crane v. Richmond Memorial Hospital, 222 Va. 283 , 278 S.E.2d 877, 1981 Va. LEXIS 302 (1981).

Where a fall is witnessed, it is not totally unexplained. The witness in this case testified that the claimant’s feet slipped out from under her and caused her to become horizontal with the floor. Evidence also revealed that the claimant was walking on a tile floor, wearing paper booties that did not have good tread or traction. The Commission inferred that the logical explanation was that the booties contributed to the claimant’s fall, which established the critical link between the employment and the accident. Phansond v. Alexandria Hospital, 76 O.W.C. 379 (1997).

Where the evidence shows that the employee slipped and fell on terrazzo floors that the employer kept well polished and clean, making them shiny and slick, and that there was a history of many falls or near falls on the slippery floors, the claimant has shown a hazard unique to the employment and her slip and fall on such floor arises out of the employment. Clarke v. Southside Virginia Community College, 75 O.W.C. 94 (1996).

Exiting Vehicles, etc.:

Employee’s injury caused while exiting employer’s vehicle arose out of employment; employee, an undercover police officer, injured while climbing out of low-positioned Corvette that was used in undercover work; hoisting motion from low vehicle, causing knee injury, considered unusual and awkward and formed connection between injury and employment. Motley v. Prince William County Police, VWC File No. 182-11-95 (Apr. 19, 2004).

Employee’s injury caused by awkward exit from truck off ladder arose out of employment; ladder not defective or unusually high but employee’s step off ladder awkward when toe caught ladder, causing him to land on ankle awkwardly. Shortt v. Humphrey’s Enterprises, Inc., VWC File No. 208-04-35 (May 16, 2003).

Injuries sustained as a result of stepping out of or into a truck in an awkward or unusual manner, or on a step which is abnormal in height or condition, arise out of the employment. Berry v. Virginia Dept. of Transportation, 79 O.W.C. 72 (2000).

Compensation benefits were awarded to an employee who fell while descending a school bus because the steps were unusual and required a different degree of attention and exertion. Boyette v. Prince George’s County School Board, 69 O.I.C. 110 (1990).

Where the seat of the employer’s truck was elevated approximately three feet above ground level, and the claimant had to utilize an intermediate step of about one to one and one-half feet above ground level between the cab of the truck and the ground in order to exit the truck safely, having to step down from such an elevation and in such a manner constituted a risk of employment. Berry v. Virginia Dept. of Transportation, 79 O.W.C. 72 (2000).

Compensation benefits were awarded to the claimant whose left knee popped as he stepped from a truck to the ground while removing his right foot from a stirrup. Theriault v. Estes Express Lines, 73 O.W.C. 79 (1994).

Idiopathic/Unexplained Falls:

The claimant was injured but conscious at the bottom of the stairs leading to the employer’s designated smoking area. He had no recollection of the event or of any significant physical problems prior to the fall. The stairs had no defect. The claimant died the next day. Evidence is insufficient to prove an idiopathic fall or to infer a risk of the employment caused the fall. Tweed v. Newport News Shipbuilding & Dry Dock, VWC File No. 227-87-41 (June 26, 2007).

Claimant did not remember why he fell, but immediately prior to his fall he had been standing on a roof hosing it down and had made adjustment to a ladder preparing to descend from roof. These facts established a set of risks unique to the employment, and the evidence was sufficient to support a reasonable inference that claimant fell either because his wet shoe slipped or the ladder shifted. Roupe v. Hall’s Constr. Corp., VWC File No. 218-14-72 (Jan. 12, 2005).

In Virginia, 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. Daniels v. Lantz Construction Co., 77 O.W.C. 60 (1998).

The effects of the claimant’s idiopathic fall were found to be compensable because his employment as a construction supervisor required that he position himself one foot from the edge of a six foot drop in order to inspect a retaining wall on the opposite side of a loading dock. This elevated height constituted an added risk of the claimant’s employment, as it increased the severity of his injuries when he fell. Daniels v. Lantz Construction Co., 77 O.W.C. 60 (1998).

For additional Court of Appeal’s cases involving stairs and idiopathic falls see Plastic Products, Inc. v. Mildred Clark Bullock, Record No. 1963-95-2 (April 16, 1996), (Unpublished Memorandum Opinion); Virginia State University v. Almeaner Gilliam, Record No. 1746-95-2 (April 2, 1996), (Unpublished Memorandum Opinion).

For a case discussing idiopathic and unexplained falls see PYA/Monarch v. Harris, 22 Va. App. 215, 468 S.E.2d 688, 1996 Va. App. LEXIS 221 (1996).

Employee’s injury resulting from awkward movement arose out of employment; employee bent and retrieved pans from lower shelf and arose with pans and twisted to place pans on table; Commission found employee not merely bending over but experienced symptoms during lifting and twisting motion. Davis v. Little Gen’l Store, Inc., VWC File No. 211-71-77 (Oct. 14, 2003).

Employee’s injury found to arise out of employment when injury caused while turning at work station with feet planted on non-slip rubber mat; employee not engaged in “simple act of turning,” but while turning on mat designed to prevent slipping causing feet not to move during turn. Honaker v. Teleflex Automotive Mfg. Corp., VWC File No. 210-18-16 (June 30, 2003).

Bending/Standing:

Injury incurred while bending down performing a pat down of a prison inmate did not arise out of employment. Banks v. Deep Meadow Correctional Center, VWC File No. 217-80-44 (April 11, 2005).

Employee’s injury found to arise out of employment when injury occurred while arising from sitting on floor in awkward position for 45 minutes; employee’s work required her to assume awkward position, posing risk of injury from recovering from that position. Stallard v. Appalachian Reg’l Cmty. Head Start, Inc., VWC File No. 206-69-80 (June 27, 2003).

Employee’s injury found to arise out of employment when injury occurred while arising from sitting on floor in awkward position for 45 minutes; employee’s work required her to assume awkward position, posing risk of injury from recovering from that position. Stallard v. Appalachian Reg’l Cmty. Head Start, Inc., VWC File No. 206-69-80 (June 27, 2003).

Compensation benefits were awarded to an employee who suffered a knee injury when he arose from a squatting position on sloping terrain. The movement required significant exertion and greater weight was placed on the injured leg. Beatley v. Metropolitan Washington Airport Authority, 69 O.I.C. 105 (1990).

Compensation benefits were denied to a claimant whose knee gave way as he turned around on the first step of a stairway to go back to retrieve equipment. The mere act of turning without some added risk is not sufficient to bring an injury at the workplace within the context of the Act. County of Chesterfield v. Johnson, 237 Va. 180 , 376 S.E.2d 73, 5 Va. Law Rep. 1545, 1989 Va. LEXIS 14 (1989).

Compensation benefits were denied to a claimant whose knee gave way as he turned around on the first step of a stairway to go back to retrieve equipment. The mere act of turning without some added risk is not sufficient to bring an injury at the workplace within the context of the Act. County of Chesterfield v. Johnson, 237 Va. 180 , 376 S.E.2d 73, 5 Va. Law Rep. 1545, 1989 Va. LEXIS 14 (1989).

The evidence showed that the employee was injured as she stood and turned while rising from a chair. Held, accident did not arise out of the employment. A simple acts of walking, bending or turning, without any other contributing environmental factors, should not be considered as risks of the employment. Smith v. Halmode Apparel, 75 O.W.C. 258 (1996).

Benefits were awarded to the employee who suffered an injury as he arose from kneeling on his left leg and pushing a beam with his right leg because the injury occurred as a risk of the employment. Thornsberry v. Tidewater Construction Corp., 71 O.W.C. 115 (1992).

Benefits were awarded to an employee whose knee popped upon arising from working with knees flexed for five to ten minutes. The hazardous stance for a specific identifiable period was an unusual exertion incident to the work. Boehm v. Seaboard Communications, 71 O.W.C. 118 (1992).

Compensation benefits were awarded to a housekeeping aide who, after working on her hands and knees cleaning the floor, felt pain in her back as she attempted to stand while holding a spray bottle and placing her right hand on the bed to support herself. Coates v. Mary Washington Hospital, 73 O.W.C. 66 (1994).

A claimant who suffered a knee injury while extricating himself from the back seat of a car during attendance at an out of town conference was awarded compensation benefits. Elfino v. Virginia Department of Highways, 66 O.I.C. 30 (1987).

A knee injury resulting from bending and lifting a pallet arises out of the employment. Jackson v. Hechinger Co., 74 O.W.C. 128 (1995).

The Commission is not prepared to state that any single action of “bending” or “straightening up” will determine the existence or nonexistence of a compensable claim without consideration of all applicable conditions. Reed v. Commonwealth of Virginia/Norfolk State University, 64 O.I.C. 269 (1985).

Accidents caused by mere bending are not injuries that arise out of the employment. Smith v. Wampler-Longacre, Inc., 74 O.W.C. 186 (1995) (see also Smith v. Halmode Apparel, 75 O.W.C. 258 (1996)).

A “contortion of the body” to perform a job task is a hazard of the workplace. Davidson v. Potomac Mills Exxon, 76 O.W.C. 437 (1997).

An accident arises out of the employment when a causal connection exists between the injury and the conditions under which the employer requires the work to be performed. A contortion of the body necessitated by the employee’s work is risk created by the workplace. The injury need not be caused by an extraordinary occurrence in or about the work performed, nor must the precipitating movement be unusual or require exertion. Shifflett v. Fleet Maintenance Service, Inc., 77 O.W.C. 202 (1998).

An accident arises out of the employment when a causal connection exists between the injury and the conditions under which the employer requires the work to be performed. A contortion of the body necessitated by the employee’s work is risk created by the workplace. The injury need not be caused by an extraordinary occurrence in or about the work performed, nor must the precipitating movement be unusual or require exertion. Shifflett v. Fleet Maintenance Service, Inc., 77 O.W.C. 202 (1998).

The claimant was on a creeper and working under a trailer for approximately one hour. He pushed the creeper out from under the trailer, twisted his body in an awkward manner to place one hand on the floor and one hand on the tire, and twisted and arose from the creeper with his legs crossed. The Commission held that the claimant’s action in standing from a seated position on the creeper was the end point to an injurious transaction which commenced when he pushed himself out from under the trailer after working underneath it for an hour. The common thread in such cases is that the employee was required to work in an awkward position for an extended period, which posed a risk of injury as he recovered from such position, and injuries that result from such work arise out of a risk or hazard of the employment. Shifflett v. Fleet Maintenance Service, Inc., 77 O.W.C. 202 (1998).

Injury sustained by a claimant when she leaned over to pick up a pencil which had fallen to the floor did not arise out of her employment. Haro v. Ramada Inn, 64 O.I.C. 158 (1985).

Compensation benefits were denied to an employee who experienced back pain as she straightened up from leaning forward across a bath tub to clean a wall. Prophet v. South Hill Ventures, 70 O.I.C. 125 (1991).

Where the claimant bends to lift a bucket of water, pours it out while bent, and suffers a back injury while rising with the empty bucket, the work while bending constituted a hazard, and the injury while extracting herself arises out of the employment. The specific incident that caused the employee’s sudden mechanical or bodily change must be viewed in the aggregate, not in its component parts. Blizzard v. Super Fresh Food Markets, Inc., 75 O.W.C. 168 (1996).

The claimant attempted to peer over waist-high boxes on a pallet while standing on one foot, his trunk turned towards the right, his upper body turned towards the left, and his weight on his left hand. The awkward movement produced a sudden back strain that arose out of the employment. Taylor v. Wal Mart Stores, Inc., 74 O.W.C. 156 (1995).

The claimant attempted to peer over waist-high boxes on a pallet while standing on one foot, his trunk turned towards the right, his upper body turned towards the left, and his weight on his left hand. The awkward movement produced a sudden back strain that arose out of the employment. Taylor v. Wal Mart Stores, Inc., 74 O.W.C. 156 (1995).

The claimant worked as a cashier at a gas station kiosk. At the time of her accident, she was performing work in an unusual or awkward position, with one foot on the ground and another on a six-inch ledge, reaching into a cart to retrieve a soda. This evidence established a causal connection between her injuries and the conditions under which the employer required her to work, and thus arose out of her employment. Davidson v. Potomac Mills Exxon, 76 O.W.C. 437 (1997).

Compensation benefits were awarded to the claimant who forcibly pulled yarn while bent over and a minute or two later felt pain in his back while straightening up after reaching in an awkward position for a sponge. Hill v. E. I. Du Pont De Nemours & Co., 73 O.W.C. 68 (1994).

Compensation benefits were awarded to the claimant who forcibly pulled yarn while bent over and a minute or two later felt pain in his back while straightening up after reaching in an awkward position for a sponge. Hill v. E. I. Du Pont De Nemours & Co., 73 O.W.C. 68 (1994).

Compensation awarded to an employee who sustained an injury when she was bending over and reaching down into a box to pick up some material. Hepner v. Sancar Corporation, 64 O.I.C. 167 (1985).

Compensation awarded to an employee who sustained an injury when she was bending over and reaching down into a box to pick up some material. Hepner v. Sancar Corporation, 64 O.I.C. 167 (1985).

The employee suffered a back injury when, to secure items on a food cart, she tossed straps under the cart, which was approximately 12 inches above the floor. Held, the awkward physical movement in bending and tossing the straps under the cart established the causal connection between the employment and the injury. Grissom v. Alladin Food Management, 75 O.W.C. 226 (1996).

The claimant, who suffered a knee injury when she squatted down to check the contents of a catheterized patient’s urine bag, was awarded compensation benefits. Smithers v. Lewis-Gale Hospital, 66 O.I.C. 27 (1987).

Compensation benefits were denied to a claimant who after working for one and a half hours bent over to pick up a piece of plastic pipe and felt a sudden back pain before actually touching the pipe. The mere happening of an accident at the work place not caused by any work related risk or sufficient work related exertion was not compensable. Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 482, 382 S.E.2d 305, 6 Va. Law Rep. 111, 1989 Va. App. LEXIS 100 (1989).

In awarding benefits to the employee who was working in a crouched position several feet off of the ground repairing a two inch pipe line when he reached for an eight pound piece of pipe and felt sharp pain in his back, the Court held the work place condition constituted the “hazard” that was peculiar to the work. It was irrelevant whether the employee was reaching or had lifted the pipe, that the activity was usual and did not require exertion or that the injury was not foreseen or expected. The employee’s act of reaching for the pipe was found to be the event that satisfied both the “identifiable incident” and the “reasonable definite time” components of the injury by accident test. Grove v. Allied Signal, 15 Va. App. 17, 421 S.E.2d 32, 9 Va. Law Rep. 162, 1992 Va. App. LEXIS 230 (1992).

Compensation benefits were awarded to an employee who, while repairing a heater over a twenty-minute period which involved kneeling, squatting, lying down and rising to a standing position on a ramp, felt pain in his knee as he stood up for the third time. Stout v. Bally’s HTCA, 73 O.W.C. 70 (1994).

In awarding compensation benefits to an employee who experienced back pain upon arising from working in a squatting position for forty-five minutes, the Commission noted that the mere act of bending over or arising from such a position alone with resultant injury is not compensable. When stooping, bending or arising is tied in with other movements or actions required by his work, compensation may be awarded if the medical evidence supports causation. The mere fact that a employee may perform similar activities at home does not prevent an award when an injury is sustained performing the same activities at his workplace. Hastings v. City of Danville Waste Water Treatment Plant, 70 O.I.C. 128 (1991).

In order to perform his work, the claimant had to assume a full squat, balance on his forefeet, dangle his arms below him, and use both hands to remove caulk from a pipe only a few inches off the floor. After maintaining this awkward position and performing the significant work related exertion for five to ten minutes, he felt pain accompanied by an audible “pop” as he attempted to stand. These facts establish an injury by accident arising out of the employment. Campbell v. Buffalo Air Handling, 74 O.W.C. 82 (1995).

Compensation benefits were awarded to an employee who felt a sharp pain upon arising after working one-half hour sitting on a stool in a bent position. Whitt v. Southeastern Virginia Training Center, 70 O.I.C. 120 (1991).

Compensation benefits were awarded to an employee who felt a sharp pain upon arising after working one-half hour sitting on a stool in a bent position. Whitt v. Southeastern Virginia Training Center, 70 O.I.C. 120 (1991).

Compensation benefits were denied to an employee who felt a slip in his back as he attempted to stand up after working for a period of time in a crouched position welding a water line. Colston v. Union Camp Corporation, 70 O.I.C. 126 (1991).

The claimant established an injury by accident when he experienced severe back pain simultaneously with rising from a bent over position handling a 100-pound drum of chlorine thereby aggravating a pre-existing condition. Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 409 S.E.2d 824, 8 Va. Law Rep. 1100, 1991 Va. App. LEXIS 269 (1991).

Compensation benefits were denied to the claimant, a customer service representative, who after receiving a telephone call through his headset felt a pop in his back as he twisted to the right to reach his computer. The mere act of turning in a chair is insufficient to bring the injury under the Act. Timmons v. Airborne Freight Corp., 73 O.W.C. 72 (1994).

Lifting/Carrying:

Compensation was awarded to the claimant, who experienced stabbing back pain requiring immediate medical attention, while picking up a box as part of her normal work duties. Russell Loungewear v. Gray, 2 Va. App. 90, 341 S.E.2d 824, 1986 Va. App. LEXIS 246 (1986).

After lifting chain off of a tractor trailer, the employee felt a severe pain in his back as he turned to put the lid on a box. The injury arose out of the employment since the claimant was performing a job related task requiring climbing, lifting, twisting and bending, and experienced an immediate onset of pain. Roanoke Electric Steel Corporation v. Gilcrest, No. 1347-85 (Ct. of Appeals, May 29, 1986).

The majority of the Commission held that the one continuous movement of bending forward, grasping and lifting a box, with the most severe pain while straightening with the box in her hand establishes an injury by accident while lifting. Armstead v. Philip Morris Companies, 74 O.W.C. 196 (1995).

Compensation benefits were awarded to an employee who lifted a 100-pound furnace, leaned over it for approximately four to five minutes to cut and fit it into place and was unable to stand up as the result of an acute lumbosacral strain, because the employee’s action required unusual exertion and risks that were encountered solely due to the nature of the job. Brown v. Caporaletti, 12 Va. App. 242, 402 S.E.2d 709, 7 Va. Law Rep. 2126, 1991 Va. App. LEXIS 70 (1991).

Compensation benefits were awarded to an employee who experienced back pain while carrying a 50-pound bag of coal dust in a crouched position through a 2 x 2 door. Brewer v. Westmoreland Coal Company, 70 O.I.C. 112 (1991).

Compensation benefits were awarded to the employee who after carrying a 200-pound walk board, suffered back pain while performing relatively light work cutting vinyl siding. Willard v. Phillip Hughes Contractors, 70 O.I.C. 116 (1991).

Compensation benefits were awarded to an employee who felt a sharp pain in his back as he attempted to catch a falling box. Wright v. Harrison’s Supermarket No. 1, 70 O.I.C. 254 (1991).

In awarding compensation benefits, the Commission held that the claimant suffered a minor strain while lifting a case of drinks from the back of a pallet. The fact that the strain was minor did not mean that it was cumulative nor did the failure immediately to report the incident negate the occurrence of an injury by accident. Tyrrell v. Mid Atlantic Coca Cola, 73 O.W.C. 63 (1994).

Hernia:

Employee’s hernia injury found not to result from repetitive trauma; employee stated that he moved two pieces of heavy equipment at 3:30 p.m. and immediately thereafter felt pain in groin; Commission found that employee identified specific incident — moving equipment — causing bodily change — strain; evidence did not show gradual onset of pain from repetitive, strenuous work. Martin v. Goodyear Tire & Rubber Co., VWC File No. 212-22-57 (Mar. 26, 2004).

A causal connection between the work and the hernia must be shown. The mere fact that a worker discovered the condition during the course of his work does not establish a compensable claim. Roy v. Yancey Bark & Lumber Co., Inc., 31 O.I.C. 280 (1949); Purcell v. Commonwealth, 31 O.I.C. 276 (1949); Catlett v. Sanderson & Porter, 31 O.I.C. 110 (1949); Boisseau v. Boisseau, 31 O.I.C. 97 (1949).

To be compensable a hernia must be the result of an identifiable movement or action taken at work and arising out of and in the course of employment. Rice v. E.P. Liles Construction Corp., 60 O.I.C. 361 (1981).

Compensation denied where the evidence failed to establish any identifiable incident occurring on a particular day which resulted in an obvious sudden mechanical or structural change in the body. P & M Construction Co., Inc. v. Heim, Court of Appeals Record #0277-85 (12/18/85).

It is not necessary that there be an immediate protrusion or visible external knot following the accident, if there was an actual rupture of the abdominal wall such that a hernia would be apparent to a physician making an incision. Maryland Cas. Co. v. Robinson, 149 Va. 307 , 141 S.E. 225 , 1928 Va. LEXIS 367 (1928).

Mere predisposition to a hernia, such as relaxed rings, malformation, physical weakness or congenital defect is not a bar to compensation benefits. Dixon v. Norfolk S.B. Corp., 182 Va. 185 , 28 S.E.2d 617 (1944); Turner v. Langley Field Post Exchange, 25 O.I.C. 433 (1943); Hayes v. Ford Motor Co., 17 O.I.C. 400 (1935); Moseley v. Robertson Chemical Co., 8 O.I.C. 584 (1926); Stewart v. Wilson Co., 5 O.I.C. 36 (1923).

A hernia occurring at the site of a previous hernia that had surgically been repaired is not a pre-existing condition. Miller v. Kincheloe, 27 O.I.C. 37 (1945); Atkinson v. Burgess Lumber Co., 20 O.I.C. 166 (1938); Thorton v. Thurston Co., Inc., 18 O.I.C. 222 (1936); Ridge v. Sanitary Grocery Co., 13 O.I.C. 27 (1931).

Other Injuries:

Claimant’s dog bite did not arise out of his employment where, while not performing any required job duties, he approached and initiated contact with a chained dog to give him water and pet him. Markham v. C&C Cullet Supply, VWC File No. 213-72-31 (Oct. 27, 2004).

Compensation benefits were awarded to a claimant who during her regular employment duties was required because of her height to perform an awkward maneuver to place yarn in a cart. Ellis v. Spun Fibers, Inc., 68 O.I.C. 72 (1989).

The claimant who felt a popping in her neck as she stretched to relieve stiffness attributed to working in one position for an extended period of time was denied compensation benefits on the basis that her injury was not the result of a risk of her employment. Young v. S. L. Nusbaum Insurance Agency, 68 O.I.C. 80 (1989).

The majority of the Commission held that the claimant’s injury, suffered as he reached into the cab of his truck from the sleeper compartment to shut off an alarm clock, did not arise out of his employment. The evidence did not show that the claimant was in an awkward position or engaged in any extraordinary or unusual exertion. Ralston v. Blizzard Trucking, 74 O.W.C. 54 (1995).

Extensive effort required to turn a steering wheel on a metro bus made it a hazard peculiar to the work, and the back injury sustained by the driver while engaged in that activity held compensable. Foster v. Washington Metropolitan Area Transit Authority, 62 O.I.C. 172 (1983).

The claimant was in an awkward position while pushing on the clutch of a UPS package car, which was difficult to shift into third gear. The Commission held that the conditions of the workplace contributed to the claimant’s injury. Jacobs v. United Parcel Service, 76 O.W.C. 247 (1997).

Compensation benefits were awarded to a bus driver who felt a needle prick in his arm while adjusting a tight overhead mirror with his arm extended. D’Souza v. WMATA, 69 O.I.C. 111 (1990).

Compensation benefits were denied to an employee who while either reaching across the cab of a truck to retrieve a key from a box in the window of the passenger door or while exiting the vehicle, felt a pop in his left knee followed by a collapse of the knee as he walked across the parking lot. Schrembs v. Casey Buick, 69 O.I.C. 114 (1990).

Compensation was denied to the claimant whose eye became irritated while checking a computer system. The “corneal abrasion” was not an additional risk of the employment. Eddy v. Norfolk City Fire & Paramedical Services, 73 O.W.C. 74 (1994).

Compensation benefits were denied to a surveyor who was attacked by dogs as he sketched topography on a city street. Other than his work causing him to be in the location, there was no evidence to connect the employment and the attack. Holmes v. R. Kenneth Weeks Engineers, 73 O.W.C. 77 (1994).

Also see cases under “Injury By Accident” topic above.

Psychiatric:

While supervisor’s touching of claimant’s face and use of vulgar language were unexpected, unwelcome, and troubling to claimant, evidence did not establish that either the state or touching was so outrageous and unusual as to constitute a sudden shock or fright. Chisholm v. Pariser Dermatology Specialists, Ltd., JCN VA02000017447 (Feb. 11, 2015).

Claimant, a female correctional officer, was found to have sustained a compensable injury after she was grabbed by a nude inmate in a bear hug around her arms, and the inmate later pled guilty to the charge of aggravated sexual battery. Claimant would also have been entitled to compensation for a purely psychological injury, even in the context of a prison environment, because the confrontation by a naked convicted rapist was a sudden shocking or frightening event. Shortridge v. Keen Mountain Correctional Center, JCN VA00000239081 (Feb. 7, 2013).

Employee’s anxiety disorder not shown to be result of sudden shock or fright and thus did not arise out of employment; bus driver developed anxiety disorder after bus rear-ended; evidence did not show physical injury or emergency, hectic, or chaotic situation caused by accident; accident merely resulted in delay of bus route; psychological condition not compensable. Plese v. Chesapeake Cmty. Serv. Bd., VWC File No. 207-65-77 (Mar. 17, 2003).

A nervous condition resulting from a sudden fright or shock may be compensable despite the lack of physical impact. However, psychological disabilities resulting from the stressful consequences of managerial decisions, or from conflicts with supervisors, are ordinarily not compensable. Akers v. Bell Atlantic, 75 O.W.C. 301 (1996).

Compensation benefits were awarded to an employee who, after spraying insecticides into his face and eyes, subsequently developed a panic attack disorder. Emotional harm following physical injury is compensable even when the physical injury does not directly cause the emotional consequence. Seneca Falls Greenhouse & Nursery v. Layton, 9 Va. App. 482, 389 S.E.2d 184, 6 Va. Law Rep. 1393, 1990 Va. App. LEXIS 32 (1990).

Compensation continued to an employee, who was found able to perform his pre-injury employment from a physical standpoint but who, because of a psychiatric condition related to the industrial accident, was unable to return to gainful employment. Bowers v. Earl’s Market, 63 O.I.C. 27 (1984).

Employer found responsible for the cost of psychiatric treatment on finding that the claimant’s traumatic neurosis was causally related to her industrial accident. Gentry v. City of Richmond, 62 O.I.C. 188 (1983).

OTHER.

Compensable Consequence:

It is unreasonable to conclude that degeneration of an injury, or the failure of an injury to heal, is a non-compensable consequence where it results from an employer’s failure to authorize or provide recommended medical treatment as required by the Workers’ Compensation Act. Hall v. Campbell County School Board 26, JCN VA00000189503 (Aug. 29, 2013).

To apply the consequence of a consequence analysis to medical treatment for the initial injury would dramatically limit the medical treatment available to a claimant for his compensable injury. This would conflict with the claimant’s entitlement under the Act to reasonable and necessary medical treatment related to the compensable injury. Sychev v. S K A Construction, LLC, VWC File No. 228-36-59 (Apr. 14, 2011).

The claimant’s depression that developed from pain relating to injuries incurred in a work accident is a compensable consequence of the original injury and as such is a change of condition governed by § 65.2-708 which requires that a claim be filed within two years from the date compensation was last paid pursuant to an award. Brown v. Ruby Tuesday’s Inc., VWC File No. 215-94-55 (June 11, 2007), On remand deputy commissioner on Oct. 19, 2007 found for claimant. By March 6, 2008 review opinion the commission affirmed.

Dental problems that result from medication prescribed for the industrial accident are a compensable consequence and the responsibility of the employer. Martin v. Still Water, Inc., VWC File No. 152-51-72 (May 17, 2007).

Injuries sustained in a motor vehicle accident while going to a medical appointment for the work injury are a compensable consequence of the industrial accident. Jones v. Checkered Flag Toyota, VWC File No. 220-84-93 (Jan. 26, 2007).

Where a compensable work accident resulted in a fusion at L5-S1 and claimant subsequently felt a loud “pop” while sitting, the resulting disc herniation at L4-5 is a compensable consequence of the original injury rather than a new accident because the fusion resulted in a weakening at the L4-5 level. Gaskins v. W. L. McKendree & Company, Inc., VWC File No. 214-82-19 (Sept. 26, 2006).

In awarding permanent total benefits it was found that the claimant’s brain injury was a compensable consequence of his work injury. While there was no physical trauma to the brain, structural changes as a result of histoplasmosis altered brainwave activity and caused a loss of brain function. Heller v. Powhatan Correctional Center/Commonwealth of Va., VWC File No. 174-73-32 (July 19, 2006).

In awarding permanent total benefits it was found that the claimant’s brain injury was a compensable consequence of his work injury. While there was no physical trauma to the brain, structural changes as a result of histoplasmosis altered brainwave activity and caused a loss of brain function. Heller v. Powhatan Correctional Center/Commonwealth of Va., VWC File No. 174-73-32 (July 19, 2006).

The Act does not require that a compensable consequence meet the definition of an injury by accident in order to be compensable. Where there is a direct causal connection to the original accidental injury, a subsequent problem caused by repetitive trauma may be a compensable consequence. Frazier v. Infineon Technologies, VWC File No. 218-88-98 (Feb. 6, 2006).

Claimant’s back pain was a compensable consequence of his left knee injury where the medical evidence showed that the knee injury exacerbated the pre-existing back condition due to claimant’s altered gait and use of crutches. Mason v. Crown Cork & Seal Co., VWC File No. 201-25-94 (Sept. 8, 2004).

Employee’s atrial fibrillation found to be compensable consequence of injury to left third finger; although medical evidence in conflict, preponderance of medical evidence showed that finger injury to employee, who suffered from heart condition, caused onset of episode of atrial fibrillation. Fuller v. Meadow Creek Wood Shop, VWC File No. 211-18-55 (Jan. 21, 2004).

Gradually incurred compensable consequence not subject to notice and limitations provisions of § 65.2-601 ; employee gradually developed right-foot condition as a result of off-loading weight onto right foot because of original left-foot injury; claim for right foot not time-barred by § 65.2-601 but timely under § 65.2-708 . Field v. American Red Cross, VWC File No. 198-54-11 (Mar. 10, 2003).

Where a causal relationship between an initial compensable injury and a subsequent injury is established, the doctrine of compensable consequences provides that the subsequent injury is considered to have arisen out of and in the course of the employee’s employment. Bartholow Drywall Co., Inc. v. Hill, 12 Va. App. 790, 407 S.E.2d 1, 8 Va. Law Rep. 1, 1991 Va. App. LEXIS 152 (1991).

When primary injury arose out of and in course of employment, every natural consequence flowing from the injury likewise arises out of employment. Speight v. Gen. Tire of Norfolk, Inc., 48 O.I.C. 227 (1966).

Where a compensable injury is a contributing cause of a subsequent injury or disability, the subsequent injury is a compensable consequence of the original injury. The employer is responsible for psychiatric treatment necessitated by a compensable industrial accident. Palmer v. City of Roanoke Emergency Services, 70 O.I.C. 147 (1991).

An employee who developed occupational right arm epicondylitis from assembly line employment and later developed left arm symptoms while performing clerical work for a subsequent employer suffered a compensable consequence. The first employer was responsible for the payment of benefits because the over utilization of the left arm was necessary to provide relief to the injured right arm. Collins v. Allied Bendix Corporation, 69 O.I.C. 116 (1990).

To prove a compensable consequence between an ankle injury and a shoulder condition, the evidentiary standard is a reasonable medical probability and not a reasonable degree of medical certainty. Elliott v. Blue Ridge Stone Corp., 71 O.W.C. 138 (1992).

The employee’s bilateral carpal tunnel syndrome was found to be a compensable consequence of her industrial accident which necessitated the use of a walker or crutches. Medical evidence that the wrist condition was “probably” caused by the use of the ambulatory aids was sufficient to establish compensability. Alls v. American Balance Corp., 71 O.W.C. 141 (1992).

For the purpose of establishing the compensability of a subsequent injury, the doctrine of compensable consequences applies to both an aggravation of a previously compensable injury and a new injury. If the subsequent injury is a new injury the provisions of § 65.1-87 (now § 65.2-601 ) are applicable with the limitations period commencing from the date of the new injury. If the subsequent injury is a change in condition the limitations period of § 65.1-99 (now § 65.2-708 ) are applicable. Bartholow Drywall Co., Inc. v. Hill, 12 Va. App. 790, 407 S.E.2d 1, 8 Va. Law Rep. 1, 1991 Va. App. LEXIS 152 (1991).

Where an employee’s severe injury and its consequences directly caused him to become devoid of normal judgement and to be dominated by a disturbance of the mind which led to suicide, a claim by his dependents was found to be compensable. The post-injury suicide was held to be a change in condition and not a new accident. Confer v. Arban & Carosi, Inc., 63 O.I.C. 66 (1984).

A new accident as a compensable consequence does not extend the maximum period of 500 weeks for total incapacity. Williams v. General Heating & Engineering Co., Inc., 67 O.I.C. 105 (1988).

Where an accident at work is direct cause of a second accident en route home, the second accident is held to have arisen out of and in course of employment. Miller v. Wilson Laurel Farms, Inc., 52 O.I.C. 178 (1970); Smith v. Va.-Car. Hardware Co., 36 O.I.C. 145 (1954).

If the second accident occurs during recreational activity not connected with employment, it is compensable where a fracture, not completely healed, is again broken at same site. Cockerille v. Va. Elec. & Power Co., 45 O.I.C. 34 (1963).

Fractured ankle in fall at home, resulted from vertigo caused by previous skull fracture. Fleming v. Capital City Constr. Corp., 47 O.I.C. 120 (1965).

Death from fall while using crutches and wearing leg brace necessitated by accident was compensable. Glenn v. Goodman Bros., 52 O.I.C. 110 (1970).

Injuries are compensable when incurred in travel to and from medical appointments for industrial injury. Brosnahan v. Immer & Co., 207 Va. 720 , 152 S.E.2d 254; Griffin v. Gen. Elec. Co., 49 O.I.C. 135 (1967).

Aggravating effects of re-exposure to causative agent of dermatitis is not new accident. Hawkeye-Security Ins. Co. v. McDaniel, 210 Va. 209 , 169 S.E.2d 582; Durham v. Walker Mach. & Foundry Co., 52 O.I.C. 90 (1970); McDaniel v. Folker, 49 O.I.C. 201 (1967).

Where second accident is not related to first, though both result in back injuries, compensation prorated between the two employers. Brunk v. Anning-Johnson Co., Inc., 48 O.I.C. 21 (1966) (appeal denied).

Both accidents caused incapacity; both employers must pay. Freeman v. Va. Hauling Co., 49 O.I.C. 108 (1967).

Medical sequelae of a primary injury are compensable as a compensable consequence, and the employer is liable for gastrointestinal problems resulting from medications prescribed for the work injury. Cox v. Hensel Phelps Construction Company, 74 O.W.C. 204 (1995).

An employer is responsible for every natural consequence that flows from the injury unless it is the result of the claimant’s intervening intentional conduct. The employer is responsible for treatment of the claimant’s diabetes aggravated by epidural steroid injection treatment of the work injury. Smith v. Holdren’s, Inc., 74 O.W.C. 94 (1995).

Where noncompensable injury aggravates condition resulting from earlier compensable injury and causes additional disability as well, employer is liable for that portion of the most recent medical treatment which can be attributed to exacerbation of the compensable injury. Smith v. Fine’s Men’s Shop, 60 O.I.C. 414 (1981).

Presumption:

The death presumption does not apply where a person is unable to recall the accident and dies a day later. Tweed v. Newport News Shipbuilding & Dry Dock, VWC File No. 227-87-41 (June 26, 2007).

Presumption applied in the following cases: Long distance truck driver found in light well beneath third story window of hotel room provided by employer, met his death by accidental means, within the period of employment, at a place where he might reasonably be expected to be, and while reasonably fulfilling duties of his employment. Alvis v. Southern Motor Lines, 200 Va. 168 , 104 S.E.2d 735 (1958); Lamm v. Ocean View, etc., 57 O.I.C. 220 (1976). Service station employee. Rasnake v. Kayo Oil Co., 57 O.I.C. 298 (1976). Insurance agent. Robeson v. Metropolitan Life Insurance Co., 58 O.I.C. 307 (1979).

Presumption applied in case of service station attendant working graveyard shift, killed while performing his duties. Jenkins v. Howser’s Esso, 54 O.I.C 185 (1972).

The presumption that an injury “arose out of ” the employment only applies in death cases. It is inapplicable to cases where an employee because of the severity of the injuries is unable to recall the circumstances surrounding an accident. Pinkerton's, Inc. v. Helmes, 242 Va. 378 , 416 S.E.2d 646 (1991).

The presumption in death cases that certain unexplained accidents arise out of the employment does not extend to an accidental injury case where an employee is rendered unconscious and, as a result, is unable to explain the accident. An unexplained fall is generally not compensable because the “critical link” between the employment and the accident cannot be made. Phansond v. Alexandria Hospital, 76 O.W.C. 379 (1997).

Where employee is found unconscious as result of accidental injury at a place where his employment reasonably required him to be and death ensues before consciousness is regained, in the absence of evidence to the contrary, it will be presumed the accidental injury arose out of and in course of employment. Wills v. Rountree, 40 O.I.C. 168 (1958) (appeal denied). See also Keil v. K&G Abatement Company, VWC File No. 194-66-72 (December 19, 2001).

There is no basis to find an unexplained accident which would give rise to the presumption that death arose out of the employment when the evidence is unclear whether a death resulted from an exertion over an extended period or from a pre-existing heart condition unrelated to specific exertion. Hall v. John T. Williams Association, Inc., 70 O.I.C. 107 (1991).

While finding that evidence of a non-work related motive precluded the application of the presumption to an employee who was fatally assaulted by an unknown assailant in an area of a hotel frequented by vagrants and drifters, the Court awarded benefits on a rational inference that the death arose out of and in the course of the employment. Thomas Nelson Limited Partnership v. Fritz, 11 Va. App. 269, 397 S.E.2d 891, 7 Va. Law Rep. 696, 1990 Va. App. LEXIS 190 (1990).

CAUSAL CONNECTION.

General:

The claimant, a registered nurse, had a positive reaction to a tuberculin skin test, which test was required and provided by her employer. Although further tests revealed no evidence of clinical TB, her physician prescribed prophylactic treatment, and excused her from work while taking it. While the claimant proved an injury by accident (the tuberculin test and resulting reaction), there was no evidence that she received specific treatment causally related to the skin reaction. Claimant’s disability was related to preventive treatment, which was not the responsibility of the defendants. Lambert v. Livinrite Home Health Services, JCN VA00000520302 (Oct. 10, 2013).

Intervening exacerbation of symptoms not considered new compensable injury by accident, but a compensable change in condition; employee suffered neck and shoulder strain in 1997 and suffered an exacerbation of symptoms in 2002 from lifting at work; Commission determined that 2002 exacerbation not new injury by accident; although incident shown to be sudden and identifiable, it was not shown to result in mechanical or structural change in body, but only mere increase of symptoms. Willis v. Stafford County Sch. Bd., VWC File No. 188-88-41 (Oct. 9, 2003).

The question of causation between an incident and the injury is essentially a medical issue that is usually resolved by reference to medical reports. Burcham v. Kelly Services, Inc., 77 O.W.C. 50 (1998).

Where incapacity or death results from a disease caused by physical injury, whether the injury does so by weakening the resistance to the extent that the worker contracts the disease or by rendering active an undeveloped or quiescent condition the incapacity will be compensated. Where an apparently healthy worker received an injury and immediately thereafter becomes incapacitated, in the absence of positive affirmative evidence tending to establish a break in the chain of causation, the conclusion will be that the incapacity resulted from the injury. Justice v. Panther Coal Co., Inc., 173 Va. 1 , 2 S.E.2d 333, 1939 Va. LEXIS 170 (1939); Bristol Builders Supply Co. v. McReynolds, 157 Va. 468 , 162 S.E. 8 , 1932 Va. LEXIS 306 (1932); Winchester Milling Co. v. Sencindiver, 148 Va. 388 , 138 S.E. 479 , 1927 Va. LEXIS 238 (1927).

Where the attending physician does not know what caused the disability, or where it is merely possible that incapacity might have been caused by trauma, claimant has not sustained the burden of proof. Trillhaase v. Univ. of Rochester, 52 O.I.C. 256 (1970).

When it is proven that the claimant’s employment is one of two factors contributing to his disability, full benefits will be allowed. Bergman v. L & W Drywall, 222 Va. 30 , 278 S.E.2d 801, 1981 Va. LEXIS 267 (1981).

“Possibility” that cancer was result of accident is not enough. Scott v. Ford Motor Co., 49 O.I.C. 295 (1967).

Where decedent’s ruptured aneurism either caused fall or resulted from fall, evidence raises mere possibility of causal connection and is not sufficient to produce compensable claim. Eaton v. Clinchfield Coal Co., 60 O.I.C. 149 (1981).

In determining whether the incapacity for work is caused by an injury in the employment, medical testimony is important. Cataract was caused by severe blow to eye by piece of wood. Blackwell v. Miller Mfg. Co., Inc., 49 O.I.C. 23 (1967).

Pre-existing Condition Aggravated by Accident:

Evidence persuasively established that work accident wherein claimant injured his right hip aggravated his pre-existing psychiatric problems. Hearn v. Maryland & Virginia Milk Producers Corp., VWC File No. 208-75-26 (Dec. 21, 2004).

When it appears an employee has received a compensable physical injury which materially aggravated or accelerated a pre-existing disease, which disease thereupon became the direct and immediate cause of disability or death, causal connection between the injury and disability has been established. Ohio Valley Construction Co. v. Jackson, 230 Va. 56 , 334 S.E.2d 554 (1985); Ellis v. Commonwealth, 182 Va. 293 , 28 S.E.2d 730 (1944); Liberty Mutual Ins. Co. v. Money, 174 Va. 50 , 4 S.E.2d 739 (1939); Justice v. Panther Coal Co., 173 Va. 1 , 2 S.E.2d 333 (1939); Berry v. Royster Guano Co., 161 Va. 442 , 171 S.E. 519 (1933); Pendleton v. Flippo Construction, Inc., 1 Va. App. 381, 389 S.E. 210 (1986); Davis v. Glebe Auto Market, 55 O.I.C. 120 (1973); Cutler v. Hoy, 57 O.I.C 98 (1976); Jenkins v. Merit Oil Corp., 59 O.I.C. 153 (1980); Smith v. The Richards Corp., 59 O.I.C. 280 (1980).

If the exertion from employment can be shown to have actually resulted in the sudden and obvious injury to the employee regardless of a predisposing physical weakness or condition, the disability is compensable. Compensation was awarded where the claimant, who was operating a front-end loader over uneven terrain, experienced pain at a particular point in time which intensified during the day. Jewell Ridge Coal Corp. v. McGlothlin, 2 Va. App. 294, 343 S.E.2d 94, 1986 Va. App. LEXIS 271 (1986).

Since the employer takes the employee as he finds him, it is of no moment whether he finds him predisposed to injury by disease, or predisposed to further injury as a result of a prior injury. Bragg v. Lynchburg-Westover Dairies, Inc., 49 O.I.C. 35 (1967); Everett v. Rubino & Farris, Inc., 44 O.I.C. 69 (1962).

The fact that the worker suffered from a chronic ailment, rendering the effects of an accident more injurious than they would have been to an ordinary person, will not defeat a claim for compensation. Liberty v. Mutual Ins. Co. v. Money, 174 Va. 50 , 4 S.E.2d 739 (1939); Williams v. Coal Processing Co., 51 O.I.C. 294 (1969); Stacy v. Jake Hollow Coal Co., 41 O.I.C. 134 (1959).

An injury by accident that materially aggravates or accelerates a pre-existing condition is compensable. While the claimant’s condition may also have been aggravated by other non-work related factors such as snow shoveling and dog walking, it is clear that the claimant’s work injury contributed to his worsened condition, his need for surgery, and his subsequent disability. Under the “two causes” rule, where disability and resulting treatment has two causes, one related to the employment and the other not, benefits will be awarded when it is proven that the employment is a contributing factor to the disability. Wong v. New View Electrical, Inc., 79 O.W.C. 120 (2000).

The fact that the claimant had preexisting back problems is immaterial and not a sufficient defense to liability, where the claimant had not received treatment for his back since July 1992 and had been able to perform regular work until the accident. Campbell v. Buffalo Air Handling, 74 O.W.C. 82 (1995).

If the accident accelerates or aggravates a pre-existing condition, the injured worker is entitled to compensation. On the other hand, an injury due solely to the natural progress of the pre-existing condition is not compensable. Burcham v. Kelly Services, Inc., 77 O.W.C. 50 (1998).

Where a finding is made that minor trauma sustained at work did not aggravate or precipitate disabling complaints from pre-existing tumor, no award can be made. Piver v. City of Norfolk, 57 O.I.C. 293 (1976).

Claimant who had a cataract extraction was awarded benefits resulting from detached retina due to work activity of lifting. Crawford v. Miles Southeastern Corp., 56 O.I.C. 79 (1975).

Benefits awarded where hemangioma was congenital but trauma caused it to become symptomatic. Rose v. Star Band Co., Inc., 51 O.I.C. 233 (1969).

Accident aggravated idiopathic aseptic neurosis of hip joints, contributing cause for surgery. Davis v. Glebe Auto Market, 55 O.I.C. 120 (1973).

Back injury superimposed on pre-existing systemic lupus erythematosus and rheumatoid arthritis, death resulted from accident. Crocker v. Suffolk Oil Co., Inc., 56 O.I.C. 81 (1975) (affd on review).

Medication for original injury aggravated gastrointestinal system, resulting in ulcer. Austin v. Prince William Answering Service, 58 O.I.C. 9 (1971).

Medical sequelae of a primary injury are compensable as a compensable consequence, and the employer is liable for gastrointestinal problems resulting from medications prescribed for the work injury. Cox v. Hensel Phelps Construction Company, 74 O.W.C. 204 (1995).

An employer is responsible for every natural consequence that flows from the injury unless it is the result of the claimant’s intervening intentional conduct. The employer is responsible for treatment of the claimant’s diabetes aggravated by epidural steroid injection treatment of the work injury. Smith v. Holdren’s, Inc., 74 O.W.C. 94 (1995).

Benefits awarded where Buerger’s disease (thromboangiitis obliterans) aggravated by exposure to cold temperatures beyond exposure of general public resulting in amputation of leg. Nellum v. Phelps, 53 O.I.C. 231 (1971).

Pre-existing Condition Caused Accident:

Where worker’s infirmity causes the initial accident, compensation will be awarded if it appears that some aspect of employment entered the causal chain to make consequences more serious than they would otherwise be. Thus, a fall by employee into a tank of water, or down a flight of stairs is compensable, even though worker’s disease caused the fall. However, an idiopathic fall on a level floor is not compensable, unless the employment environment increases the hazard of the fall. Harris v. Jayen Co., 44 O.I.C. 115 (1962); Breeden v. Town of Culpeper, 57 O.I.C. 49 (1976); Rorrer v. Bassett Furniture Co., 37 O.I.C. 273 (1955).

Where injuries following the fall are more severe than they might have been had worker suffered an attack at home or any other place not connected with the employment, compensation will be allowed. Tolker v. B & G Olsen, 50 O.I.C. 318, 320 (1968).

Distinction between unexplained falls and idiopathic falls is discussed in the following cases:.Lester v. Lebanon Shell Station, 49 O.I.C. 186 (1967); Glascock v. Nash Street Associates, 49 O.I.C. 132 (1967); Solyan v. Harrison Tire Co., 44 O.I.C. 252 (1962); Akers v. Va. etc., Mills, 57 O.I.C. 1 (1975); Hill v. Boulevard Supermarket, 59 O.I.C. 125 (1980); PYA/Monarch v. Harris, 22 Va. App. 215, 468 S.E.2d 688, 1996 Va. App. LEXIS 221 (1996).

Cause of accident may be disregarded if injuries would not have occurred except for the employment. Price v. Thalhimer Bros., Inc., 51 O.I.C. 219 (1969); Hicks v. Hercules Powder Co., 49 O.I.C. 151 (1967); Causey v. Bonnie Enterprises, Inc., 49 O.I.C. 60 (1967); Delawder v. Byrd, Inc., 45 O.I.C. 67 (1963).

Epileptic seizures known to employer; employment required working at heights. Huntington v. Moses E.C.C.O., 47 O.I.C. 177 (1965).

In denying benefits for the employee’s aneurysm which resulted in an auto accident, the Court held that “evidence that shows a mere possibility that the accident resulted from an employment related aggravation of an idiopathic condition does not constitute ‘credible evidence’ to support an award of compensation. The evidence failed to establish that a condition of the employment aggravated or caused the aneurysm.” Virginia Department of Transportation v. Mosebrook, 13 Va. App. 536, 413 S.E.2d 350, 8 Va. Law Rep. 1960, 1992 Va. App. LEXIS 32 (1992).

Causal Connection Examples:

Dental problem caused by extensive use of pain medications, including fentanyl, for back injury held causally related to original accident. Wentz v. P & J Automotive, JCN 2039868 (Jan. 28, 2019).

Claimant’s work unloading a dairy truck was not atypically strenuous and the evidence failed to establish that the claimant’s work caused his fatal heart attack as opposed to the injury simply occurring while the work was being performed. The estate of Dinh v. Giant Food, L.L.C., VWC File No. 227-00-71 (Feb. 11, 2008).

De Quervains Disease related to accident. Blick v. Southampton Textile Co., 52 O.I.C. 26 (1970).

Uncommon form of hepatitis contracted during employment. Singer v. Comm. of Va. No. Va. Community College, 58 O.I.C. 326 (1979).

Employee does not bear burden of proving exactly what caused sudden loud noise at work resulting in acoustic trauma. Wolfe v. Arlington County School Board, 55 O.I.C. 384 (1973).

Compensation and medical benefits denied for total knee replacement where evidence failed to establish causal relationship to initial compensable ankle injury. Medical report must be filed under Rule 17 (now Rule 4.2) and is not, as alleged, a work product. Hughes v. Goodyear Tire & Rubber Co., 60 O.I.C. 219 (1981).

Disability caused by medication for a cold, supplied by employer, taken on advice of employer’s nurse was compensable. Camp v. Miller & Rhoads, Inc., 55 O.I.C. 68, 73 (1973).

Complications resulting from anesthesia for removal of pin from hip, causally connected with accident. Duncan v. Smith Bowman Distillery, Inc., 46 O.I.C. 74 (1964).

In awarding benefits the Commission found disablity as a result of a splinter incident at work triggering dermatitis from the medication or reaction to materials exposed to while performing duties. Vaughn v. American Furniture Co., Inc., 53 O.I.C. 363 (1971).

Compensation for partial disability was awarded when tetanus antitoxin for injury caused serum sickness and rheumatoid arthritis. Wilson v. Leggett’s Dept. Store, 50 O.I.C. 346 (1968).

Where claimant was efficient, competent employee prior to accident and subsequently suffered anxiety neurosis, proximately caused by accident, which condition caused him to be unable to perform his duties, compensation was awarded. Minton v. Washington County Board of Supervisors, 40 O.I.C. 94 (1958); Evans v. City of Fredericksburg, 40 O.I.C. 46 (1958); Jordan v. Sunrise Coal Co., 57 O.I.C. 207 (1977).

Psychiatric care for depression following traumatic amputation of both hands was compensable. Weisz v. Murry’s Steaks, Inc., 49 O.I.C. 330 (1967).

Thrombophlebitis was found to be causes by a compensable accident in the following cases:.Watkins v. Martinsville City School Board, 46 O.I.C. 245 (1964); Vaughan v. Scott County School Board, 44 O.I.C. 267 (1962); Satterfield v. Burton Co., Inc., 41 O.I.C. 123 (1959); Moore v. Consumer Auto Services t/a Value Rent-A-Car, 58 O.I.C. 249 (1979).

Where claimant had a pre-existing osteoarthritic condition which was aggravated by trauma and while in traction developed thrombophlebitis, this condition was brought about by type of treatment rendered for traumatic injury and therefore compensable. Stacy v. Jake Hollow Coal Co., 41 O.I.C 134 (1959).

Hip and knee injuries compensable due to accidental fall but extended disability due to back injury is not related since medical evidence reveals prior degenerative disc disease. Spence v. City of Virginia Beach, Police-Animal Control, 60 O.I.C. 416 (1981).

Absent evidence that unwitnessed blow to leg materially aggravated pre-existing phlebitic condition which led to fatal embolism, claim for death benefits must fail. Lucas v. Eccon Construction Company, 60 O.I.C. 292 (1981).

MISREPRESENTATION.

Claimant’s failure to indicate a felony conviction on application did not bar compensation because there was no causal relationship to the accident. Prince William County Service Authority v. Harper, 25 Va. App. 166, 487 S.E.2d 246, 1997 Va. App. LEXIS 441 (1997), aff'd, 256 Va. 277 , 504 S.E.2d 616, 1998 Va. LEXIS 105 (1998).

To successfully establish the defense of fraudulent misrepresentation and bar a claim for compensation benefits, an employer must prove that (1) the employee knew that the representation was false; (2) the employer relied upon the false misrepresentation; (3) such reliance resulted in the consequent injury; and (4) there is a causal relationship between the injury in question and the false representation. Bringas v. Immer Drywall Co., Inc., 76 O.W.C. 172 (1997).

Benefits for accident otherwise compensable will be denied if material misrepresentations as to his physical condition (back injury) are made by prospective employee to prospective employer and employment is afforded on basis of misrepresentations to detriment of employer. Hawkins v. Lane Co., 49 O.I.C 144 (1967); Alexander v. W. N. Jackson Co., 55 O.I.C. 1 (1973); Dobbins v. Contractors Equipment & Supply Co. (appeal denied), 58 O.I.C. 104 (1979); Zook v. Maline & Hyde, Inc., 58 O.I.C. 373 (1979); Bembury v. Newport News Shipbuilding & Dry Dock Co. (appeal denied), 58 O.I.C. 15 (1979); Burke v. Alfred Teves, Inc., 59 O.I.C. 43 (1980).

The claimant’s misrepresentations related to prior claims, work restrictions, medication, and physical condition. Her accident did not involve lifting, and she was physically able to perform her job prior to the accident, when cases of beer fell on her. Any physical limitations which the claimant previously had, or from which she suffered, did not contribute to her accident, and the injuries sustained did not aggravate her preexisting condition. In this case, no causal connection between the misrepresentation and the injury was shown. Young v. Service Distributing, Inc., 77 O.W.C. 72 (1998).

The causal connection between the misrepresentation and the subsequent accident is shown if the injury is to the same part of the body to which the misrepresentation relates, or where the misrepresentation relates to a qualification for the position. Harper v. Prince William Co. Service Auth., 75 O.W.C. 361 (1996).

While the general rule is that a material misrepresentation must be shown to bear some causal connection with the industrial accident, a willful misrepresentation may be found where an employee failed to advise the employer of a previous conviction of a felony because State law would have precluded him from being hired as a security guard. Richards v. Central Security Bureau, Inc., 71 O.W.C. 187 (1992).

An employee’s failure to note previous back pain as a result of a kidney problem on a job application did not bar recovery under the Workers’ Compensation Act for a subsequent back injury because the misrepresentation was not causally connected to the latter injury. Grimes v. Shenandoah Valley Press, 12 Va. App. 665, 406 S.E.2d 407, 7 Va. Law Rep. 2956, 1991 Va. App. LEXIS 143 (1991).

Willful concealment of truth constitutes fraud just as much as willful utterance of a falsehood. Partlow v. City of Alexandria, 53 O.I.C. 247 (1971), (disease incurred in childhood concealed on application for employment); Abernathy v. Union Envelope Co., 51 O.I.C. 1 (1969), (previous injury of wrist not disclosed but questionable whether it would have resulted in denial of employment).

The defense of misrepresentation on an employment application may be raised at the time of an original application or after an award for compensation has been entered. Wishon v. Williams Power Corporation, 69 O.I.C. 76 (1990).

Where the employer alleges misrepresentation on an employment application, the employer is not limited to learning whether the employee had a felony conviction, but may inquire as to how they relate to the position for which the employee applied. Harper v. Prince William Co. Service Auth., 75 O.W.C. 361 (1996).

A claimant who supplied a false social security number and misrepresented on his employment application that he was legally eligible for employment in the United States forfeited his right to receive compensation benefits. Bilbao v. Dee Shoring Company, Inc., 66 O.I.C. 53 (1987).

Where the employee misrepresents his immigration status and provides a false social security number to the employer, which is not revealed to the employer until after the accident, the employer is absolved from providing workers’ compensation benefits. Bringas v. Immer Drywall Co., Inc., 76 O.W.C. 172 (1997).

An employer was at his own risk when he hired an illegal alien without obtaining sufficient documentation. The claimant’s providing of a false Social Security number was not sufficient misrepresentation to defeat the claim. Ramallo v. Fisher & Stachen, Inc., 68 O.I.C. 117 (1989).

OPINIONS OF THE ATTORNEY GENERAL

Covid-19. —

If a first responder becomes ill from COVID-19 from an exposure at work, it is likely a compensable illness under the Workers’ Compensation Act. See opinion of Attorney General to The Honorable Ken Stolle, Sheriff, City of Virginia Beach, 20-024, 2020 Va. AG LEXIS 21 (5/22/20).

If COVID-19 is an upper respiratory disease, it falls under the heart and lung presumption of the Act for first responders, however the statutory presumption applies only to a limited class of first responders under certain circumstances and, therefore, would not have broad applicability to all or most of the first responders whose official duties regularly place them at far greater risk of contracting COVID-19 than the general public following social distancing guidelines. See opinion of Attorney General to The Honorable Ken Stolle, Sheriff, City of Virginia Beach, 20-024, 2020 Va. AG LEXIS 21 (5/22/20).

A first responder who has the benefit of a presumption, has the initial burden of producing evidence to trigger the presumption (evidence of the disease, and evidence of disability or death caused by the disease); once the presumption is triggered, the burden shifts to the employer to rebut the presumption (that the disease was not caused by the employment and that there is a non-work-related cause). See opinion of Attorney General to The Honorable Ken Stolle, Sheriff, City of Virginia Beach, 20-024, 2020 Va. AG LEXIS 21 (5/22/20).

I.General Consideration.

Editor’s note.

Some of the cases annotated below were decided under former §§ 65.1-29, 65.1-30, and 65.1-31 or prior law.

Purpose. —

The purpose of former §§ 65.1-29 through 65.1-34 is to bring within the operation of the Workmen’s (now Workers’) Compensation Act all persons engaged in any work that is a part of the trade, business or occupation of the original party who undertakes as owner, or contracts as contractor, to perform that work, and to make liable to every employee engaged in that work every such owner, or contractor, and subcontractor, above such employee. Sykes v. Stone & Webster Eng'r Corp., 186 Va. 116 , 41 S.E.2d 469, 1947 Va. LEXIS 135 (1947); Anderson v. Thorington Constr. Co., 201 Va. 266 , 110 S.E.2d 396, 1959 Va. LEXIS 221 (1959); Turnage v. Northern Va. Steel Corp., 336 F.2d 837, 1964 U.S. App. LEXIS 4303 (4th Cir. 1964); Vandergrift v. United States, 500 F. Supp. 237, 1979 U.S. Dist. LEXIS 8325 (E.D. Va. 1979), aff'd, 634 F.2d 628 (4th Cir. 1980); Smith v. Horn, 232 Va. 302 , 351 S.E.2d 14, 3 Va. Law Rep. 1265, 1986 Va. LEXIS 257 (1986).

The legislative intention in enacting this section was to impose the obligations of the Act upon an owner in every case in which the work being done is a kind of work which employees of the owner usually or appropriately do, though, in the particular instance, some or all of the work is being accomplished through independent contractors. Walker v. United States Gypsum Co., 270 F.2d 857, 1959 U.S. App. LEXIS 5062 (4th Cir. 1959), cert. denied, 363 U.S. 805, 80 S. Ct. 1240, 4 L. Ed. 2d 1148, 1960 U.S. LEXIS 1084 (1960).

The purpose of this section is to bring within the operation of the Workers’ Compensation Act all persons engaged in any work that is a part of the trade, business, or occupation of the “owner” which is customarily done by the owner’s employees. Southeastern Tidewater Area Manpower Auth. v. Coley, 221 Va. 859 , 275 S.E.2d 589, 1981 Va. LEXIS 220 (1981); Pearman v. United States, 528 F. Supp. 598, 1981 U.S. Dist. LEXIS 16545 (W.D. Va. 1981).

This section is to prevent employers from escaping coverage of the Workers’ Compensation Act by doing, through independent contractors and subcontractors, what they normally would do through employees. Vess v. Davis Elec. Constructors, Inc., 613 F. Supp. 1047, 1985 U.S. Dist. LEXIS 17775 (W.D. Va. 1985), aff'd, 818 F.2d 30, 1987 U.S. App. LEXIS 5600 (4th Cir. 1987).

The central purpose of this section is to bring within the operation of the compensation act all persons engaged in any work that is a part of the trade, business or occupation of the original party who undertakes as owner, or contracts as contractor, to perform that work, and to make liable to every employee engaged in that work every such owner, contractor and subcontractor above the employee. Vess v. Davis Elec. Constructors, Inc., 613 F. Supp. 1047, 1985 U.S. Dist. LEXIS 17775 (W.D. Va. 1985), aff'd, 818 F.2d 30, 1987 U.S. App. LEXIS 5600 (4th Cir. 1987).

Former § 65.1-30, as well as the parallel provisions contained in former §§ 65.1-29 and 65.1-31, were designed to assure employees of protection under the Act. Together these provisions imposed liability on an owner, contractor or subcontractor who subcontracted work which was a part of his trade to another person or a subcontractor who in turn subcontracted with another person. All were liable to pay compensation to any worker employed in the work that each undertook. Smith v. Weber, 3 Va. App. 379, 350 S.E.2d 213, 3 Va. Law Rep. 1114, 1986 Va. App. LEXIS 372 (1986).

This provision is meant to prevent an owner from escaping liability under the Workers’ Compensation Act by the simple expedient of subcontracting away work which is part of its trade, business, or occupation. Such an owner will remain liable under the Act to the extent the work subcontracted is part of that owner’s trade, business, or occupation. Henderson v. Central Tel. Co., 233 Va. 377 , 355 S.E.2d 596, 3 Va. Law Rep. 2494, 1987 Va. LEXIS 203 (1987).

The primary purpose of this section is to protect the employees of subcontractors who are not financially responsible and to prevent employers from relieving themselves of liability (for compensation) by doing through independent contractors what they would otherwise do through direct employees. Oakwood Hebrew Cem. Ass’n v. Spurlock, No. 1978-91-2 (Ct. of Appeals Aug. 18, 1992).

The purpose of the statute is to expand the popular definition of “employer” in order to bring within the Virginia Workers’ Compensation Act independent contractors and subcontractors who are engaged in work that is part of the trade, business, or occupation of the owner. McCotter v. Smithfield Packing Co., 849 F. Supp. 443, 1994 U.S. Dist. LEXIS 5164 (E.D. Va. 1994).

Purpose of this section is to insure compensation coverage for employees of independent contractors and subcontractors, not the subcontractor himself. Clinchfield Coal Co. v. Coleman, 1999 Va. App. LEXIS 662 (Va. Ct. App. Dec. 7, 1999).

The plain meaning of this section is to hold the statutory employer liable to pay compensation as if the worker were his own immediate employee, and the posture of the statutory employer, once he is established as such, is thus one of direct liability. Clinchfield Coal Co. v. Coleman, 1999 Va. App. LEXIS 662 (Va. Ct. App. Dec. 7, 1999).

Former § 65.1-104.2 (see now § 65.2-802 ) does not remove right to proceed under this section. —

The fact that all members of the Virginia Coal Producers Group (VCPG) are jointly and severally obligated to each other under former § 65.1-104.2 does not remove from an injured employee the right to proceed against a statutory employer under this section, but rather, the joint and several liability of the members of the VCPG under former § 65.1-104.2 simply operates to give the statutory employer a broader base of possible indemnification, and it does not, and moreover cannot, alter the statutory employer’s obligations which are plainly set forth in this section. Clinchfield Coal Co. v. Coleman, 1999 Va. App. LEXIS 662 (Va. Ct. App. Dec. 7, 1999).

The issue whether a person is a statutory employee presents a mixed question of law and fact which must be resolved in light of the facts and circumstances of each case. Stone v. Door-Man Mfg. Co., 260 Va. 406 , 537 S.E.2d 305, 2000 Va. LEXIS 134 (2000).

It is well established that the borrowed servant doctrine applies to state and federal workers’ compensation acts. McCotter v. Smithfield Packing Co., 849 F. Supp. 443, 1994 U.S. Dist. LEXIS 5164 (E.D. Va. 1994).

A general contractor cannot avoid liability simply because another insured statutory employer preceded it in the ascending employment hierarchy. Thus, employees of an uninsured sub-subcontractor may look to the subcontractor, and to the general contractor, for coverage, although recovery is not permitted from both. Sites Constr. Co. v. Harbeson, 16 Va. App. 835, 434 S.E.2d 1, 10 Va. Law Rep. 107, 1993 Va. App. LEXIS 328 (1993).

General contractor and subcontractor subject to liability for awards. —

Where neither subcontractor nor general contractor used the service of any of the claimants for pay, neither falls within the definition of “employer” set forth in § 65.2-101 . However, both are subject to liability for awards to the claimants under the Virginia Workers’ Compensation Act because of their status as statutory employers pursuant to this section. Sites Constr. Co. v. Harbeson, 16 Va. App. 835, 434 S.E.2d 1, 10 Va. Law Rep. 107, 1993 Va. App. LEXIS 328 (1993).

Award against first statutory employer permitted. —

The commission’s policy of entering an award against only the first statutory employer in the ascending scale with adequate coverage is neither contrary to nor inconsistent with any statute, has a rational basis in furthering the overall objectives of the act by expediting the receipt of benefits, and has been implicitly approved by the legislature. Sites Constr. Co. v. Harbeson, 16 Va. App. 835, 434 S.E.2d 1, 10 Va. Law Rep. 107, 1993 Va. App. LEXIS 328 (1993).

Owner can subcontract all its work yet remain liable under Workers’ Compensation Act. —

This section contemplates that an owner can subcontract all its work yet remain liable under the Workers’ Compensation Act. Henderson v. Central Tel. Co., 233 Va. 377 , 355 S.E.2d 596, 3 Va. Law Rep. 2494, 1987 Va. LEXIS 203 (1987).

Recovery limited to that specified in Act. —

If a person is engaged in work which is part of the undertaking of the owner or general contractor, regardless of his relationship to the injured workman and his immediate employer, the Workmen’s (now Workers’) Compensation Act operates to place the economic loss upon the project and to limit the workman’s recovery to that specified in the Act. Turnage v. Northern Va. Steel Corp., 336 F.2d 837, 1964 U.S. App. LEXIS 4303 (4th Cir. 1964); Bergen v. Fourth Skyline Corp., 501 F.2d 1174, 1974 U.S. App. LEXIS 7193 (4th Cir. 1974).

Liability imposed on certain parties. —

The Workmen’s (now Workers’) Compensation Act imposes liability not only on the workmen’s employer, but also on the third party who has contracted with the workmen’s employer for the work which is a part of the third party’s trade, business or occupation. Snowden v. VEPCO, 432 F. Supp. 266, 1976 U.S. Dist. LEXIS 11989 (E.D. Va. 1976).

Phrase “workman employed in the work,” to whom compensation benefits are owed, refers to employees, not the subcontractor himself. A subcontractor does not, anywhere, come within the terms of the Act as entitled to compensation. Intermodal Servs., Inc. v. Smith, 234 Va. 596 , 364 S.E.2d 221, 4 Va. Law Rep. 1560, 1988 Va. LEXIS 4 (1988).

Statutory fellow employees. —

Contractors, subcontractors, and all workers who are engaged in the trade, business, or occupation of the owner of a project are deemed to be statutory fellow employees. The remedy for any injury suffered by one of them as a result of the alleged negligence of another, while engaged in the trade, business, or occupation of the owner, is limited to that available under the Workers’ Compensation Act. Nichols v. VVKR, Inc., 241 Va. 516 , 403 S.E.2d 698, 7 Va. Law Rep. 2377, 1991 Va. LEXIS 55 (1991).

Owner became “statutory employer” of contractor’s employees. —

Former §§ 65.1-29 through 65.1-32 (now §§ 65.2-302 and 65.2-303 ) required the owners of a project to accept responsibility for the compensation of injured employees of contractors hired by the owner. The owner thus became the “statutory employer” of the contractor’s employees who, in turn, were the “statutory employees” of the owner. Farish v. Courion Indus., Inc., 722 F.2d 74, 1983 U.S. App. LEXIS 14855 (4th Cir. 1983).

Liability as a statutory employer was properly imposed upon party with whom injured truck driver’s immediate employer had subcontracted, even though the truck driver was injured enroute to the job site and the contractual obligation was conditional upon arrival at the job site. A.G. Van Metre, Jr., Inc. v. Gandy, 7 Va. App. 207, 372 S.E.2d 198, 5 Va. Law Rep. 391, 1988 Va. App. LEXIS 110 (1988).

Statutory employer has right of indemnity. —

The statute provides that, though liable to the employee, the statutory employer has the right of indemnity against the immediate employer. Race Fork Coal Co. v. Turner, 5 Va. App. 350, 363 S.E.2d 423, 4 Va. Law Rep. 1430, 1987 Va. App. LEXIS 247 (1987), rev'd, 237 Va. 639 , 379 S.E.2d 341, 5 Va. Law Rep. 2382, 1989 Va. LEXIS 70 (1989).

Exclusive remedy is under Workmen’s (now Workers’) Compensation Act. —

Where a subcontractor is able to perform the work itself and requires no unreasonable specialized knowledge not possessed by the general contractor, the subcontractor is performing work which was part of the trade, business, or occupation of the general contractor; and because of former §§ 65.1-30 and 65.1-40 (now subsection B and § 65.2-307 ), the exclusive remedy of an employee of the subcontractor is under the Workmen’s Compensation Act. Snead v. Nello L. Teer Co., 353 F. Supp. 434, 1973 U.S. Dist. LEXIS 15205 (W.D. Va. 1973).

Common-law right to sue abrogated. —

A general partner’s statutory election to be covered as an employee by the Virginia Workers’ Compensation Act abrogated his common-law right to sue the owner of a project for injuries sustained while working on the project. Counts v. Stone Container Corp., 239 Va. 152 , 387 S.E.2d 481, 6 Va. Law Rep. 1109, 1990 Va. LEXIS 8 (1990).

Section applies only where there are at least four persons in interest. —

This section is applicable only to cases in which there are at least four persons in interest, namely: (1) an owner or other person who is having work executed for himself; (2) an independent contractor who has undertaken to execute the work for the person first mentioned; (3) a subcontractor, between whom and the independent contractor (the person secondly mentioned), there is a contract for the execution by or under the subcontractor of the whole or some part of the work; and (4) a workman “employed in the work.” Where there are four such persons in interest, the section does depart from the classification made by the general provisions of the Workmen’s (now Workers’) Compensation Act, based on the existence of the relationship of master and servant between the person liable and the workman. Bamber v. City of Norfolk, 138 Va. 26 , 121 S.E. 564 , 1924 Va. LEXIS 8 (1924); Holt v. Bowie, 343 F. Supp. 962, 1972 U.S. Dist. LEXIS 13479 (W.D. Va. 1972) (see discussion of).Sykes v. Stone & Webster Eng'r Corp., 186 Va. 116 , 41 S.E.2d 469, 1947 Va. LEXIS 135 (1947).

This section was not intended to relieve employers from liability for their own negligence which causes injury to the employees of independent contractors engaged in the performance of work for employers outside the scope of the employers’ occupation. Sears, Roebuck & Co. v. Wallace, 172 F.2d 802, 1949 U.S. App. LEXIS 2779 (4th Cir. 1949); Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 1976 Va. LEXIS 223 (1976); Vandergrift v. United States, 500 F. Supp. 237, 1979 U.S. Dist. LEXIS 8325 (E.D. Va. 1979), aff'd, 634 F.2d 628 (4th Cir. 1980); Farish v. Courion Indus., Inc., 722 F.2d 74, 1983 U.S. App. LEXIS 14855 (4th Cir. 1983).

Former § 65.1-5 (now § 65.2-101 ) must be read and reconciled with former §§ 65.1-29 through 65.1-31. Anderson v. Thorington Constr. Co., 201 Va. 266 , 110 S.E.2d 396, 1959 Va. LEXIS 221 (1959); Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 1976 Va. LEXIS 223 (1976); Vandergrift v. United States, 500 F. Supp. 237, 1979 U.S. Dist. LEXIS 8325 (E.D. Va. 1979), aff'd, 634 F.2d 628 (4th Cir. 1980).

Former § 65.1-5 (now § 65.2-101 ) must be reconciled with former § 65.1-29 (now subsection A). Holt v. Bowie, 343 F. Supp. 962, 1972 U.S. Dist. LEXIS 13479 (W.D. Va. 1972).

Former § 65.1-5 (now § 65.2-101 ) must be read and reconciled with provisions of former § 65.1-30 (now subsection B). Smith v. Weber, 3 Va. App. 379, 350 S.E.2d 213, 3 Va. Law Rep. 1114, 1986 Va. App. LEXIS 372 (1986).

Effect of former § 65.1-5 (now § 65.2-101 ). —

When the employee reaches an employer in the ascending scale, of whose trade, business or occupation the work being performed by the employee is not a part, then that employer is not liable to that employee for compensation under this section. At that point former § 65.1-5 (now § 65.2-101 ) intervenes and the employee’s right of action at common law is preserved. Sykes v. Stone & Webster Eng'r Corp., 186 Va. 116 , 41 S.E.2d 469, 1947 Va. LEXIS 135 (1947); Anderson v. Thorington Constr. Co., 201 Va. 266 , 110 S.E.2d 396, 1959 Va. LEXIS 221 (1959); Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 1976 Va. LEXIS 223 (1976); Vandergrift v. United States, 500 F. Supp. 237, 1979 U.S. Dist. LEXIS 8325 (E.D. Va. 1979), aff'd, 634 F.2d 628 (4th Cir. 1980).

If there is any doubt that this section does not include the owner of property who employs an independent contractor to do work for him, it is set at rest by former § 65.1-5 (now § 65.2-101 ), which provides that nothing in the Workmen’s (now Workers’) Compensation Act shall be construed to make the employees of an independent contractor the employees of the person contracting with him. Bamber v. City of Norfolk, 138 Va. 26 , 121 S.E. 564 , 1924 Va. LEXIS 8 (1924) (see discussion of this case in).Sykes v. Stone & Webster Eng'r Corp., 186 Va. 116 , 41 S.E.2d 469, 1947 Va. LEXIS 135 (1947).

Former §§ 65.1-29 and 65.1-30 have same purpose and effect. —

While former §§ 65.1-29 and 65.1-30 place the liability under the Workmen’s (now Workers’) Compensation Act on different people, they do have the same purpose and effect and are in reality almost identical in operation. Snead v. Nello L. Teer Co., 353 F. Supp. 434, 1973 U.S. Dist. LEXIS 15205 (W.D. Va. 1973).

The effect of this section and former § 65.1-32 (now § 65.2-303 ) is to render the owner or contractor the statutory employer of all employees engaged in the work. Turnage v. Northern Va. Steel Corp., 336 F.2d 837, 1964 U.S. App. LEXIS 4303 (4th Cir. 1964).

Section does not affect status of subcontractor. —

This section and former §§ 65.1-30 through 65.1-34 never were intended to affect the status of a subcontractor. They only took in a class of employees (employees of a subcontractor) and made them eligible to compensation just as the employees of the owner or contractor are eligible under the definition of employee in former § 65.1-4 (now § 65.2-101 ). Baker v. Nussman, 152 Va. 293 , 147 S.E. 246 , 1929 Va. LEXIS 170 (1929).

Thus he is not entitled to compensation. —

A subcontractor does not, anywhere, come within the terms of the Workmen’s (now Workers’) Compensation Act as entitled to compensation. His status is now, just as it was before the enactment of this section and former §§ 65.1-30 through 65.1-34, determined by the common law. Baker v. Nussman, 152 Va. 293 , 147 S.E. 246 , 1929 Va. LEXIS 170 (1929).

Liability of principal contractor to subcontractor is secondary. —

While under former §§ 65.1-30 through 65.1-32 the liability of the principal contractor is directly to the workman, as between the principal contractor and subcontractor, the liability of the principal contractor is secondary, and the principle of exoneration does not operate in favor of one primarily liable against one secondarily liable. Sykes v. Stone & Webster Eng'r Corp., 186 Va. 116 , 41 S.E.2d 469, 1947 Va. LEXIS 135 (1947). But see McGann v. Moss, 50 F. Supp. 573, 1943 U.S. Dist. LEXIS 2436 (D. Va. 1943).

Section does not apply where owner and subcontractor occupy relation of buyer and seller. —

One who contracts with the owner of a mill to buy, cut and remove logs from another’s land and deliver them to the mill, carrying on an independent business, performing his own work according to his own methods, using his own equipment, and employing his own servants and exercising exclusive supervision over them, is an independent contractor. The relation between the parties is that of buyer and seller, and the mill owner is not liable under this section for an injury to a workman of the contractor. Perkinson v. Thomas, 158 Va. 699 , 164 S.E. 561 , 1932 Va. LEXIS 289 (1932).

Present contractor, who impliedly assumed previous contractor’s liabilities, was statutory employer. —

Where general contractors conduct similarly manifested an implied agreement to assume previous general contractor’s contractual liabilities with subcontractors, the present general contractor was the statutory employer of employee of subcontractor at the time of his injury. States Roofing Corp. v. Bush Constr. Corp., 15 Va. App. 613, 426 S.E.2d 124, 9 Va. Law Rep. 808, 1993 Va. App. LEXIS 12 (1993).

Builder was general contractor and statutory employer. —

The record contained credible evidence from which the commission could have concluded that builder contracted to deliver a completed home, not merely to supervise its construction, making builder both the general contractor and claimant’s statutory employer. C. Richard Bogese Bldr., Inc. v. Robertson, 17 Va. App. 700, 440 S.E.2d 622, 10 Va. Law Rep. 895, 1994 Va. App. LEXIS 68 (1994).

In a workers’ compensation matter involving an injury at a construction site, because sufficient evidence existed to support the workers’ compensation commission’s finding that the claimant was acting as a borrowed employee at the time of an accident, the commission did not err in finding the general contractor liable as the statutory employer. Liberty Mut. Ins. Corp. v. Herndon, 59 Va. App. 544, 721 S.E.2d 32, 2012 Va. App. LEXIS 36 (2012).

Liability as a statutory employer was properly imposed upon party with whom injured truck driver’s immediate employer had subcontracted, even though the truck driver was injured enroute to the job site and the contractual obligation was conditional upon arrival at the job site. A.G. Van Metre, Jr., Inc. v. Gandy, 7 Va. App. 207, 372 S.E.2d 198, 5 Va. Law Rep. 391, 1988 Va. App. LEXIS 110 (1988).

Employees of subcontractor considered employees for determining applicability of Act. —

The subcontractor’s employees are employees of the contractor for purposes of liability. Since they are the contractor’s employees for purposes of determining liability, reason dictates that they should also be considered employees for determining applicability of the Act. Smith v. Weber, 3 Va. App. 379, 350 S.E.2d 213, 3 Va. Law Rep. 1114, 1986 Va. App. LEXIS 372 (1986).

Immunity as between employee of one subcontractor and other subcontractor. —

If a particular subcontractor and an injured employee’s common law or statutory employer are both working on the same project and are both engaged in the owner’s or general contractor’s work, that particular subcontractor, as a statutory co-employee of the injured worker, is also entitled to the common law immunity provided by the exclusivity provision. Pfeifer v. Krauss Constr. Co. of Va., Inc., 262 Va. 262 , 546 S.E.2d 717, 2001 Va. LEXIS 60 (2001).

The nonresident employee of a nonresident subcontractor was a statutory employee of a Virginia owner under this section. McCann v. Newport News Shipbuilding & Dry Dock Co., 177 F. Supp. 909, 1959 U.S. Dist. LEXIS 2739 (D. Va. 1959).

Status of State prisoner on work release. —

See Owens v. Swift Agric. & Chem. Corp., 477 F. Supp. 91, 1979 U.S. Dist. LEXIS 9887 (E.D. Va.), aff'd, 612 F.2d 1309 (4th Cir. 1979).

Salesman as employee. —

While a producer’s ultimate objective is to place its products in the hands of the consumer public, it does not follow that the salesman handling a manufactured product which reaches the consumer public through a retail store is the statutory employee of the manufacturer. Barnhart v. AMOCO, 237 F. Supp. 492, 1965 U.S. Dist. LEXIS 9737 (E.D. Va. 1965), aff'd, 354 F.2d 659, 1966 U.S. App. LEXIS 7570 (4th Cir. 1966).

If an employee can show that he was unaware of the relationship between his employer and some third party, who was his statutory employer at the time of his injury, and could not reasonably have known of it within 30-day period, he has the right under former § 65.1-85 (now § 65.2-600 ) to introduce evidence in an attempt to satisfy the Industrial Commission that there was a reasonable excuse for not giving the notice. Race Fork Coal Co. v. Turner, 237 Va. 639 , 379 S.E.2d 341, 5 Va. Law Rep. 2382, 1989 Va. LEXIS 70 (1989).

Cancellation of subcontractor’s insurance without notice to contractor did not impose liability on it as a statutory employer without due process of law; contractor’s liability arose from its employment of subcontractor and, vicariously, subcontractor’s employee; its liability as a statutory employer existed without reference to insurance; furthermore, if it were obliged to pay benefits to employee, it was entitled to seek indemnity from subcontractor, and therefore, this was a circumstance which did not fix liability on contractor. Girdley Constr. Co. v. Widger, 1990 Va. App. LEXIS 241 (Va. Ct. App. May 29, 1990).

Insurance carrier required to defend employee. —

Although deemed a statutory employee for purposes of workers’ compensation, individual was not an employee of insured within the plain meaning of the policy. Accordingly, the trial court erred in determining that the employee exclusion clause of the policy permitted insurance company to refuse to fulfill its obligation to defend insured. VEPCO v. Northbrook Property & Cas. Ins. Co., 252 Va. 265 , 475 S.E.2d 264, 1996 Va. LEXIS 81 (1996).

Employer estopped from asserting claimant not statutory employee. —

By virtue of the final order of the circuit court barring claimant’s action at law on the ground that he was the statutory employee of employer, an order which was granted upon employer’s motion, employer was estopped from asserting otherwise when claimant pursued a claim before the Virginia Workers’ Compensation Commission. Richfood, Inc. v. Ragsdale, 26 Va. App. 21, 492 S.E.2d 836, 1997 Va. App. LEXIS 682 (1997).

II.Political Subdivisions.

“Any person” does not include State or political subdivision. —

This section makes no mention of the State or its political subdivisions or municipal corporations. The general term “any person” does not apply to municipal corporations and political subdivisions of the State, and therefore this section is not applicable to them. City of Portsmouth v. Daniels, 157 Va. 614 , 162 S.E. 324 , 1932 Va. LEXIS 316 (1932); Anderson v. Thorington Constr. Co., 201 Va. 266 , 110 S.E.2d 396, 1959 Va. LEXIS 221 (1959).

Test used for governmental entity. —

Statutory employer status is attributed to an owner when the injured employee performs work that is part of the owner’s trade, business or occupation. As applied to a governmental entity such as the United States Navy in the instant case, the appropriate test is what activities the putative statutory employer is mandated to do by statute or regulation. In other words, any activity which a government entity is authorized or required to do is considered its trade, business or occupation. Perry v. United States, 882 F. Supp. 537, 1995 U.S. Dist. LEXIS 4891 (E.D. Va. 1995).

When a subcontractor’s employee was injured while removing electrical conduit from a public university’s building, the university was his statutory employer because the maintenance and preservation of the university’s buildings was something the university was required by § 23-76 to do, so it was part of the university’s trade, business or occupation, and the worker’s remedies against the university were limited to his workers’ compensation remedies, under the exclusivity provision of the Virginia Workers’ Compensation Act, § 65.2-307 A. Jones v. Commonwealth, 267 Va. 218 , 591 S.E.2d 72, 2004 Va. LEXIS 22 (2004).

Any activity of the University of Virginia authorized or required by statute is the trade, business, or occupation of the University for purposes of the Virginia Workers’ Compensation Act, § 65.2-100 et seq. Jones v. Commonwealth, 267 Va. 218 , 591 S.E.2d 72, 2004 Va. LEXIS 22 (2004).

Thus, section does not render city liable to contractor’s employee. —

Where the defendant city in its proprietary capacity was engaged in maintaining a water system and in selling water, and entered into a contract with deceased’s employer for the erection of a standpipe by the employer for the city, and deceased was killed in the course of his employment while working on the standpipe, the city was not liable under this section. Bamber v. City of Norfolk, 138 Va. 26 , 121 S.E. 564 (1924). But see discussion of this case in Sykes v. Stone & Webster Eng’r Corp., 186 Va. 116 , 41 S.E.2d 469 (1947).

But a turnpike authority is an “owner” within the meaning of this section, though the act creating it provides that it is “created and constituted a political subdivision of the Commonwealth.” Anderson v. Thorington Constr. Co., 201 Va. 266 , 110 S.E.2d 396, 1959 Va. LEXIS 221 (1959).

The Federal Employees’ Compensation Act does not exempt federal employees from the Virginia Workers’ Compensation Act (VWCA). The statute merely shields the United States from liability arising out of the death of a federal employee in any type of proceeding, including a proceeding brought under a state workers’ compensation act such as the VWCA. McCotter v. Smithfield Packing Co., 849 F. Supp. 443, 1994 U.S. Dist. LEXIS 5164 (E.D. Va. 1994).

The statutory-employer test applied to governmental entities differs from that usually applied to private business entities. Consequently, local governments’ trade, business, or occupation must be judged according to the public duties they are authorized and empowered by legislative mandate to perform. Roberts v. City of Alexandria, 246 Va. 17 , 431 S.E.2d 275, 9 Va. Law Rep. 1418, 1993 Va. LEXIS 102 (1993).

Recovery under Federal Tort Claims Act precluded. —

The United States Air Force was a statutory employer of a worker killed in an explosion while working for a corporation which was under contract with the Air Force to develop rocket fuel, and thus the exclusive remedy provision of this section prevented any recovery from the government under the Federal Tort Claims Act. Pendley v. United States, 856 F.2d 699, 1988 U.S. App. LEXIS 12649 (4th Cir. 1988), cert. denied, 490 U.S. 1005, 109 S. Ct. 1640, 104 L. Ed. 2d 155, 1989 U.S. LEXIS 1700 (1989).

Employer plant not statutory employer of employee hired by federal government. —

Where plaintiff was hired, trained, and placed at the employer’s plant by the federal government pursuant to federal law requiring food inspectors at meat packing facilities, plaintiff had been paid by the federal government, supervised exclusively by federal employees, and could be fired only by the federal government and employer had no control over the manner in which plaintiff performed her duties, employer was not plaintiff’s statutory employer. McCotter v. Smithfield Packing Co., 849 F. Supp. 443, 1994 U.S. Dist. LEXIS 5164 (E.D. Va. 1994).

Construction of roof was part of municipality’s business or occupation. —

Municipality which engaged a contractor to replace a roof on one of its waterworks facilities was the statutory employer of the contractor’s employee who lost his life in the performance of the contract, since construction of the roof was part of the “trade, business or occupation” of the city. Ford v. City of Richmond, 239 Va. 664 , 391 S.E.2d 270, 6 Va. Law Rep. 2241, 1990 Va. LEXIS 64 (1990).

Medical services delivered to jails are within city’s trade, business, or occupation. —

Because the city is authorized and empowered to operate the jail, and to provide medical services there, the delivery of those medical services are within the city’s trade, business, or occupation. Roberts v. City of Alexandria, 246 Va. 17 , 431 S.E.2d 275, 9 Va. Law Rep. 1418, 1993 Va. LEXIS 102 (1993).

United States as statutory employer. —

Where the work of the plaintiff involved repair and maintenance to a United States Naval vessel and said repair and maintenance was a part of the ordinary operational and readiness concern of the United States Navy, the plaintiff was engaged in the “trade, business or occupation” of the United States Navy, rendering the United States his statutory employer. Hyman v. United States, 796 F. Supp. 905, 1992 U.S. Dist. LEXIS 12502 (E.D. Va. 1992).

State workers’ compensation benefits were the exclusive remedy of an employee of a subcontractor who was injured while working to provide meals at a Marine base since the Marine Corps was her statutory employer under state workers’ compensation law because the Marine Corps was required by statute and regulation to provide meals for its enlisted members, and therefore the work subcontracted out to a food service provider and performed by the employee was part of the Marine Corps’ trade, business, or occupation. Coulter v. United States, 256 F. Supp. 2d 484, 2003 U.S. Dist. LEXIS 6036 (E.D. Va. 2003), aff'd, 90 Fed. Appx. 60, 2004 U.S. App. LEXIS 5345 (4th Cir. 2004).

III.Statutory Employers.

A.Trade, Business, or Occupation.

1.General Consideration.

“Owner” does not necessarily mean a general contractor. —

This section would be meaningless if construed to reach an owner only if the owner is also a general contractor, already subject to the obligations of the Act. Walker v. United States Gypsum Co., 270 F.2d 857, 1959 U.S. App. LEXIS 5062 (4th Cir. 1959), cert. denied, 363 U.S. 805, 80 S. Ct. 1240, 4 L. Ed. 2d 1148, 1960 U.S. LEXIS 1084 (1960).

Section refers to owner who procures another to perform work undertaken by owner. —

This section refers to an owner who undertakes to perform any work which is a part of his trade or business and procures another to perform the whole or any part of that work which the owner had undertaken. Shell Oil Co. v. Leftwich, 212 Va. 715 , 187 S.E.2d 162, 1972 Va. LEXIS 246 (1972).

Action for damages not barred where owner is “other party.” —

The Workmen’s (now Workers’) Compensation Act does not bar an action by the injured employees of an independent contractor against an owner as third party if the owner is one referred to in the Act as an “other party.” Snowden v. VEPCO, 432 F. Supp. 266, 1976 U.S. Dist. LEXIS 11989 (E.D. Va. 1976).

When owner not “other party.” —

The owner under the Workmen’s (now Workers’) Compensation Act is not an “other party” if the subcontractor for whom injured plaintiff worked was performing work which was a part of the “trade, business or occupation” of the owner at the time of the injury. Snowden v. VEPCO, 432 F. Supp. 266, 1976 U.S. Dist. LEXIS 11989 (E.D. Va. 1976).

The interests of the statutory employer and the actual employer are not sufficiently identical to regard the employer as representing all of the legal rights and defenses the statutory employer may have against the claimant. Race Fork Coal Co. v. Turner, 237 Va. 639 , 379 S.E.2d 341, 5 Va. Law Rep. 2382, 1989 Va. LEXIS 70 (1989).

When general contractor is statutory employer. —

If a general contractor contracts with another contractor to perform work which is part of the general contractor’s trade, business or occupation, that other contractor is a subcontractor within the meaning of the Workmen’s (now Workers’) Compensation Act, and, under this section, the general contractor is a statutory employer of the other contractor’s workmen. Slusher v. Paramount Warrior, Inc., 336 F. Supp. 1381, 1971 U.S. Dist. LEXIS 10776 (W.D. Va. 1971).

The effect of this section is to render the general contractor a statutory employer of all employees engaged in the work. If the general contractor is deemed a statutory employer, he is treated as an employer within the meaning of former §§ 65.1-40 and 65.1-103 (see now §§ 65.2-307 and 65.2-800 ), and is therefore immune from a common-law action brought by an injured workman. Slusher v. Paramount Warrior, Inc., 336 F. Supp. 1381, 1971 U.S. Dist. LEXIS 10776 (W.D. Va. 1971).

If the subcontractor was performing work which the general contractor was required to perform then the general contractor would be liable to the workmen of the subcontractor, and the injured workmen would be precluded from suing the general contractor. Snead v. Nello L. Teer Co., 353 F. Supp. 434, 1973 U.S. Dist. LEXIS 15205 (W.D. Va. 1973).

Under an arrangement with a subcontractor, the contractor became a statutory employer within the meaning of the Workmen’s (now Workers’) Compensation Act and was therefore immune from any common-law action by him. Spangler v. Kranco, Inc., 481 F.2d 373, 1973 U.S. App. LEXIS 9092 (4th Cir. 1973).

The principle is well established that a general contractor is the statutory employer of a subcontractor’s employee under this section of the Workers’ Compensation Act if the employee is engaged in the trade, business, or occupation of the general contractor at the time of his injury. Yancey v. JTE Constructors, Inc., 252 Va. 42 , 471 S.E.2d 473, 1996 Va. LEXIS 64 (1996).

General contractor which had a contract to complete and sell a home to a buyer was the statutory employer for workers’ compensation benefits of an employee of a tree service company the contractor hired to trim the trees behind a house pursuant to the contract with the buyer, after the employee was injured in a fall from a tree. Princess Anne Builders, Inc. v. Faucette, 37 Va. App. 102, 554 S.E.2d 113, 2001 Va. App. LEXIS 606 (2001).

Virginia Workers’ Compensation Commission’s finding that a general contractor was a statutory employer was affirmed as the Commission’s finding that the installation of driveway culverts, during which a workers’ compensation claimant was injured, was part of a subcontract was supported by testimony by a subcontractor and an employee of the subcontractor that installing the culverts was a part of the subcontract and an invoice submitted by the subcontractor, which the general contractor paid, that listed installation of the culverts as a portion of the job; the general contractor could not abandon its admission that it hired the subcontractor as a subcontractor, and its self-serving declaration that the culverts were not a part of the job was properly rejected. King George Custom Homes, Inc. v. Hernandez, 2006 Va. App. LEXIS 299 (Va. Ct. App. July 5, 2006).

The decisive factor in making the statutory employer determination under this section is whether the work being performed by the injured workman was part of the trade, business or occupation of the general contractor. If the work being performed was not a part of the general contractor’s trade, business or occupation, then the general contractor is not a statutory employer under former § 65.1-40 (now § 65.2-307 ) and is not liable for workmen’s (now workers’) compensation. Furthermore, if the general contractor is not a statutory employer, the injured workman’s right to maintain an action at common law is preserved by former § 65.1-5 (now § 65.2-101 ). Slusher v. Paramount Warrior, Inc., 336 F. Supp. 1381, 1971 U.S. Dist. LEXIS 10776 (W.D. Va. 1971).

A manufacturer doing construction work for itself, but not for others, can be a substituted employer of the employees of subcontractors within the meaning of the Workmen’s (now Workers’) Compensation Act. Walker v. United States Gypsum Co., 270 F.2d 857, 1959 U.S. App. LEXIS 5062 (4th Cir. 1959), cert. denied, 363 U.S. 805, 80 S. Ct. 1240, 4 L. Ed. 2d 1148, 1960 U.S. LEXIS 1084 (1960).

This section bars suit by employee of contractor or subcontractor against owner of project if employee is injured in work which is a part of owner’s trade, business or occupation. Evans v. Newport News Shipbuilding & Dry Dock Co., 361 F.2d 364, 1966 U.S. App. LEXIS 6204 (4th Cir.), cert. denied, 385 U.S. 959, 87 S. Ct. 397, 17 L. Ed. 2d 304, 1966 U.S. LEXIS 202 (1966).

This section concerns only suits by employees of subcontractors against the owners of the project. Snead v. Nello L. Teer Co., 353 F. Supp. 434, 1973 U.S. Dist. LEXIS 15205 (W.D. Va. 1973).

Owner is liable for compensation only if work is part of his trade or business. —

The section makes the owner liable if the workman, no matter how far down the line, is doing work which the owner has undertaken to perform as a part of his own trade, business or occupation. But if the work which the workman is doing is not a part of the trade, business or occupation of the owner, and the owner contracts with a contractor to do it, the contractor is liable to the workman, but the owner is not. Sykes v. Stone & Webster Eng'r Corp., 186 Va. 116 , 41 S.E.2d 469, 1947 Va. LEXIS 135 (1947); Anderson v. Thorington Constr. Co., 201 Va. 266 , 110 S.E.2d 396, 1959 Va. LEXIS 221 (1959); Vandergrift v. United States, 500 F. Supp. 237, 1979 U.S. Dist. LEXIS 8325 (E.D. Va. 1979), aff'd, 634 F.2d 628 (4th Cir. 1980).

Former §§ 65.1-29 through 65.1-34 do not refer to any person, who, as owner, undertakes to have any work executed for him by another, not as an employee, but as an independent contractor, which work is not yet “a part of,” but which, when completed, is intended to be used in the owner’s trade, business, or occupation. Bamber v. City of Norfolk, 138 Va. 26 , 121 S.E. 564 , 1924 Va. LEXIS 8 (1924).

An owner would be liable to workmen of the contractor or subcontractor if these people did work which the owner ordinarily performed in his trade, business or occupation. Holt v. Bowie, 343 F. Supp. 962, 1972 U.S. Dist. LEXIS 13479 (W.D. Va. 1972).

There is a distinction between an owner or employer who contracts out work which he himself generally does perform or which in the ordinary course of his particular trade or business companies similarly situated actually do or could be expected to perform, and an owner or employer who contracts out work which he does not or never could be expected to perform. In the first situation liability of the owner under the Workmen’s (now Workers’) Compensation Act would attach; in the second case it would not. Holt v. Bowie, 343 F. Supp. 962, 1972 U.S. Dist. LEXIS 13479 (W.D. Va. 1972).

Owners of projects are liable under the Workmen’s (now Workers’) Compensation Act to employees of subcontractors, if these subcontractors are performing work which is part of the trade, business, or occupation of the owner. Snead v. Nello L. Teer Co., 353 F. Supp. 434, 1973 U.S. Dist. LEXIS 15205 (W.D. Va. 1973).

In order for this section to control, the “owner” would have had to have been supervising the construction as part of its daily business, and the defendant would then have had to have sued the “owner.” Snead v. Nello L. Teer Co., 353 F. Supp. 434, 1973 U.S. Dist. LEXIS 15205 (W.D. Va. 1973).

Virginia Workers’ Compensation Commission denied a worker’s claim for compensation benefits because an historical society was not his statutory employers; the complete reconstruction of a school was not a part of the historical society’s trade, business, or occupation but was beyond the restoration project envisioned by the historical society, and its members were not involved in the reconstruction project or other construction activities. Jeffreys v. Uninsured Employer's Fund, 2017 Va. App. LEXIS 249 (Va. Ct. App. Oct. 3, 2017), aff'd, 297 Va. 82 , 823 S.E.2d 476, 2019 Va. LEXIS 8 (2019).

Workers’ compensation claimant failed to prove that a church or its historical society were his statutory employers under subsection A of § 65.2-302 where the complete restructure of a school was beyond the society’s capabilities, the society’s trade, business, or occupation did not include the complete restructure of the building, and none of the society’s members could have undertaken the construction project. Jeffreys v. Uninsured Employer's Fund, 297 Va. 82 , 823 S.E.2d 476, 2019 Va. LEXIS 8 (2019).

Type of work may determine relationship. —

Where credible evidence proved that lumber mill owner did not have any employees who normally carried out the type of work which caused claimant’s injury, i.e., the cutting and harvesting of standing timber, this work, although necessary to lumber mill’s business, was done by independent contractors, such as claimant’s employer. Therefore, the Commission did not err in finding that mill was not claimant’s statutory employer pursuant to subsection A. Uninsured Employer's Fund v. Hilltop Lumber Co., 2000 Va. App. LEXIS 455 (Va. Ct. App. June 20, 2000).

Mowing and maintenance activity that subcontractor had agreed to perform for cemetery association was part of the association’s “trade, business or occupation” within the meaning of former § 65.1-29, and thus, the association was the statutory employer of subcontractor’s employee when he was injured. Oakwood Hebrew Cem. Ass’n v. Spurlock, No. 1978-91-2 (Ct. of Appeals Aug. 18, 1992).

Construction or rehabilitation of a transportation/retail facility was not the trade, business, or occupation of providing mass transportation services, in an action to determine if engineering firm and construction company employees were statutory fellow employees. Nichols v. VVKR, Inc., 241 Va. 516 , 403 S.E.2d 698, 7 Va. Law Rep. 2377, 1991 Va. LEXIS 55 (1991).

Retail sales business. —

Where defendant corporation’s “trade, business or occupation” is a retail sales business whose revenues derive entirely from retail sales, the fact that defendant has a “Property Development Division” concerned with construction oversight, does not place it into the construction trade for purposes of the Workers’ Compensation Act. Ramsburg v. Target Stores, Inc., 982 F. Supp. 1194, 1997 U.S. Dist. LEXIS 16715 (W.D. Va. 1997).

Area manpower authority not liable for employee of nonprofit organization. —

Where an employee was accidentally injured while working for a nonprofit organization which was not insured under any workers’ compensation policy and did not qualify as a self-insured, and where an area manpower authority obtained, disbursed and monitored federal funds for the nonprofit organization, the injured employee was not a statutory employee of the area manpower authority since the administration of the nonprofit organization’s programs, the selection of the individuals to participate therein, the selection of instructors and employees to service the programs, and the salaries, grants, and allowances to be paid were all activities which the area manpower authority did not normally carry on through its employees and which it was not designated to carry on. Southeastern Tidewater Area Manpower Auth. v. Coley, 221 Va. 859 , 275 S.E.2d 589, 1981 Va. LEXIS 220 (1981).

Where portrait photographer operated portrait photography department in retail department store pursuant to license agreement, the retail sales aspect of the photographer’s work was a part of the department store’s trade, business or occupation and the photographer was statutory employee at the time he sustained his injury. Carmody v. F.W. Woolworth Co., 234 Va. 198 , 361 S.E.2d 128, 4 Va. Law Rep. 793, 1987 Va. LEXIS 229 (1987).

Painting not done as part of owners trade or business. —

Manufacturer who engaged a general contractor to construct a building for use in the conduct of its business was not the statutory employer of a worker hired by a subcontractor engaged by the general contractor to paint the building since engaging an independent contractor to perform this work did not constitute a part of manufacturer’s trade, business, or occupation. Cinnamon v. IBM Corp., 238 Va. 471 , 384 S.E.2d 618, 6 Va. Law Rep. 628, 1989 Va. LEXIS 134 (1989).

Company “employer” under Workers’ Compensation Act. —

Virginia Workers’ Compensation Commission did not err in finding that a company was an “employer” under the Virginia Workers’ Compensation Act, subsection A of § 65.2-302 , because the company conducted its business primarily through the employees of its other family-owned business and contracted with that business to perform the upkeep and day-to-day operations of its business, and the Commission had sufficient evidence to conclude that those employees were engaged in the regular business of the company; as such, those employees were statutory employees of the company at the time of claimant’s accident, and the company fell under the jurisdiction of the Act. Sherman & Sherman Props. v. Long, 2011 Va. App. LEXIS 128 (Va. Ct. App. Apr. 12, 2011).

Contracting company was a claimant’s statutory employer because the company contracted with an individual to perform a roofing project during which claimant was injured; thus, the company was liable for the claimant’s work-related injury. Associated Aluminum Prods. v. Elvira-Menez, 2014 Va. App. LEXIS 317 (Va. Ct. App. Sept. 16, 2014).

Exclusivity. —

Where a North Carolina employee was injured while working in Virginia and received workers’ compensation benefits under North Carolina law, the exclusivity provision of the Virginia Workers’ Compensation Act barred the employee’s personal injury suit against a Virginia subcontractor because the injury occurred in Virginia and the subcontractor was a statutory co-employee under Virginia law; the Full Faith and Credit Clause did not require Virginia to defer to the law of North Carolina, the state that paid the employee benefits, in determining whether the suit was barred. Demetres v. East West Constr., Inc., 776 F.3d 271, 2015 U.S. App. LEXIS 629 (4th Cir. 2015).

2.Delivery and Loading/Unloading.

Statutory employer determination. —

Defendant corporation was a “statutory employer” of plaintiff, thus barring plaintiff’s personal injury suit, where the corporation undertook to perform work that was part of its trade, business, or occupation (the manufacture of caprolactam and nylon fiber) and contracted with plaintiff’s employer on a long-term basis to perform a part of that work—the transport of caprolactam, a chemical intermediate used in the manufacture of nylon, between the corporation’s plants; plaintiff, was injured on the corporation’s premises while the corporation was loading his truck with caprolactam, a necessary step in the transport process. Meredith v. Honeywell Int'l, 445 F. Supp. 2d 661, 2006 U.S. Dist. LEXIS 60326 (E.D. Va. 2006), aff'd, 245 Fed. Appx. 325, 2007 U.S. App. LEXIS 20099 (4th Cir. 2007).

Act of sitting in a chair was not a “discrete activity” removed from the loading process (an essential part of the work that defendant corporation performed in the manufacture and processing of caprolactam was transporting the caprolactam between the corporation’s plants), where plaintiff presented documentation to the control operator, a required step in the loading process, and then attempted to sit down in the chair; the act of sitting did not remove plaintiff’s activity from the trade, business, or occupation of the corporation. Meredith v. Honeywell Int'l, 445 F. Supp. 2d 661, 2006 U.S. Dist. LEXIS 60326 (E.D. Va. 2006), aff'd, 245 Fed. Appx. 325, 2007 U.S. App. LEXIS 20099 (4th Cir. 2007).

A truck driver’s remedies against a statutory employer were limited to those provided under the Virginia Workers’ Compensation Act, § 65.2-100 et seq., regardless of the contractual employment relationship between the driver and the statutory employer. Meredith v. Honeywell Int'l, Inc., 245 Fed. Appx. 325, 2007 U.S. App. LEXIS 20099 (4th Cir. 2007).

In a wrongful death action the trial court erred in finding the parties were statutory employees of the Virginia Port Authority and therefore subject to the exclusivity provisions of the Virginia Workers’ Compensation Act; a schedule of rates between the decedent’s employer and the Virginia Port Authority was not a contract that created a statutory employer relationship under subsection A of § 65.2-302 . Moore v. Va. Int'l Terminals, Inc., 283 Va. 232 , 720 S.E.2d 117, 2012 Va. LEXIS 4 (2012).

Trucker as employee. —

Plaintiff was transporting goods to a distribution center, an activity which defendant grocery chain normally performed as part of its grocery business, thus, the transportation, loading and unloading of canned goods was an essential function of its business and independent trucker became its statutory employee when he performed those duties at the time of his injury. Hayden v. Kroger Co., 17 F.3d 74, 1994 U.S. App. LEXIS 3089 (4th Cir. 1994).

Barge terminal not statutory employer of stevedore workers. —

Trial court erred in dismissing an injured worker’s personal injury action against another worker; a barge terminal at which the truck accident occured was not the statutory employer of the two workers, as the terminal was not a party to any contract that required the injured worker or his employer to load or unload a barge. Hudson v. Jarrett, 269 Va. 24 , 606 S.E.2d 827, 2005 Va. LEXIS 2 (2005).

United States Postal Service as statutory employer. —

The U.S. Postal Service was the statutory employer of a truck driver employed by a contract mail hauler as the truck driver transported mail between distribution points and thus engaged in one of the most fundamental aspects of the mail delivery process. Nelson v. United States Postal Serv., 189 F. Supp. 2d 450, 2002 U.S. Dist. LEXIS 3496 (W.D. Va. 2002).

Materialman delivering mixed concrete is not considered to be engaged in the construction of a building; therefore, as a stranger to the business, he may be sued at common law by a workman whom he has injured on the project. Bergen v. Fourth Skyline Corp., 501 F.2d 1174, 1974 U.S. App. LEXIS 7193 (4th Cir. 1974).

When materialman immune from suit at common law. —

If in addition to supplying materials, a materialman delivering mixed concrete also engages in the business of the owner-contractor by working on the job, he is immune from suit. Bergen v. Fourth Skyline Corp., 501 F.2d 1174, 1974 U.S. App. LEXIS 7193 (4th Cir. 1974).

“Trade, business or occupation” of shipowner. —

Where a shipowner had space-chartered a portion of the cargo space on one of its vessels to the United States, pursuant to a contract with Military Sea Transport Service (M.S.T.S.), and the personnel to load and stow the cargo was to be supplied by M.S.T.S. in accordance with the contract, and M.S.T.S. contracted with a stevedoring firm to furnish such personnel, and plaintiff, an employee of the stevedoring firm, was injured on the pier while loading the cargo, the loading of the vessel did not constitute a part of the “trade, business or occupation” of the shipowner within the meaning of this section, and plaintiff as the employee of another independent contractor could maintain a suit at common law against the shipowner. American Export Lines v. Revel, 266 F.2d 82, 1959 U.S. App. LEXIS 5107 (4th Cir. 1959).

Supplier of parts to automobile repair shop not statutory employee. —

A plaintiff who was the sole manager and operator of an automobile supply warehousing business was not a statutory employee of a repair shop where, after personally taking a delivery to the rear service area and assisting the defendant’s employee in unpacking, sorting, and stocking the products contained within the delivery and taking an inventory of the store’s parts to determine which products needed reordering, the plaintiff left the shop to go out to her vehicle and retrieve a product parts catalog or update sheets to check for a new item the employee wished to order and returned to check the catalog for the item with the employee. The plaintiff ceased performing the work of the repair shop when she went to retrieve the catalog and, upon her return to the store, she was acting on behalf of her own employer, not the repair shop, in taking a product order. Rice v. VVP Am., Inc., 137 F. Supp. 2d 658, 2001 U.S. Dist. LEXIS 4888 (E.D. Va. 2001).

Work not part of trade, business or occupation of claimant’s employer. —

If a subcontractor was engaged in work that was not a part of the trade, business or occupation of the injured party’s common law or statutory employer, that subcontractor would be “another party” or a “stranger to the employment,” and not a statutory co-employee entitled to immunity from suit under the provisions of this section. Pfeifer v. Krauss Constr. Co. of Va., Inc., 262 Va. 262 , 546 S.E.2d 717, 2001 Va. LEXIS 60 (2001).

Test. —

The test is not whether the owner, by engaging an independent contractor to perform some part of his business, thereby engages in the business of the independent contractor; it is whether the independent contractor is performing work that is part of the trade, business or occupation of the owner. Barnhart v. AMOCO, 237 F. Supp. 492, 1965 U.S. Dist. LEXIS 9737 (E.D. Va. 1965), aff'd, 354 F.2d 659, 1966 U.S. App. LEXIS 7570 (4th Cir. 1966).

Where a project is undertaken either by an owner as part of his trade, business or occupation or by a general contractor, the responsibility in damages of any party to a workman injured in the project must be tested with reference to his relationship to the overall project. Turnage v. Northern Va. Steel Corp., 336 F.2d 837, 1964 U.S. App. LEXIS 4303 (4th Cir. 1964); Bergen v. Fourth Skyline Corp., 501 F.2d 1174, 1974 U.S. App. LEXIS 7193 (4th Cir. 1974).

The test is not one of whether the subcontractor’s activity is useful, necessary or even absolutely indispensable to the statutory employer’s business, since, after all, this could be said of practically any repair, construction or transportation service. The test (except in cases where the work is obviously a subcontracted fraction of a main contract) is whether this indispensable activity is, in that business, normally carried on through employees rather than independent contractors. Shell Oil Co. v. Leftwich, 212 Va. 715 , 187 S.E.2d 687 (1972); SUNOCO v. Lawrence, 213 Va. 596 , 194 S.E.2d 687, 1973 Va. LEXIS 190 (1973) (see Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323 (1976); Vandergrift v. United States, 500 F. Supp. 237 (E.D. Va. 1979), aff’d, 634 F.2d 628 (4th Cir. 1980); Farish v. Courion Indus., Inc., 722 F.2d 74 (4th Cir. 1983), aff’d on reh’g en banc, 754 F.2d 1111 (4th Cir. 1985)).

The inquiry is not whether owner was engaged in the business of the subcontractor or had ever been, but whether subcontractor’s business activity or work was a part of the business of owner. Snowden v. VEPCO, 432 F. Supp. 266, 1976 U.S. Dist. LEXIS 11989 (E.D. Va. 1976).

Developing the appropriate test and determining whether activities fall within or without an entity’s trade, business, or occupation is not a simple, straightforward exercise. Deciding what is the trade, business, or occupation of an entity is a mixed question of law and fact and is a question that does not readily yield to categorical or absolute standards. Henderson v. Central Tel. Co., 233 Va. 377 , 355 S.E.2d 596, 3 Va. Law Rep. 2494, 1987 Va. LEXIS 203 (1987).

The normal work test, which relates to the determination of whether an owner is the statutory employer of the employees of the owner’s general contractors or subcontractors in the circumstances set forth in subsection A, is defined as follows: If the work out of which the industrial accident arose is work normally carried on through the owner’s employees rather than independent contractors, it is, in the language of the statute, a part of the owner’s trade, business or occupation. In such case, the owner is the statutory employer of the injured worker, whether directly employed by the independent contractor or by a subcontractor. Evans v. B.F. Perkins Co., a Div. of Standex Intern Corp., 166 F.3d 642, 1999 U.S. App. LEXIS 1139 (4th Cir. 1999).

In determining whether owner and subcontractor qualified as plaintiff’s statutory employers, the question was whether plaintiff was performing part of owner’s main business concern. Evans v. B.F. Perkins Co., a Div. of Standex Intern Corp., 166 F.3d 642, 1999 U.S. App. LEXIS 1139 (4th Cir. 1999).

Contractors, subcontractors and all workers who are engaged in the trade, business or occupation of the owner of a project are deemed to be that owner’s statutory employees under the workers’ compensation law. An activity is part of the trade, business or occupation of the owner if the activity is, in that business, normally carried on through employees rather than independent contractors. Rice v. VVP Am., Inc., 137 F. Supp. 2d 658, 2001 U.S. Dist. LEXIS 4888 (E.D. Va. 2001).

Determined from all the facts. —

Whether the work being performed is a part of the trade, business or occupation of the owner must be determined from all of the facts. Snowden v. VEPCO, 432 F. Supp. 266, 1976 U.S. Dist. LEXIS 11989 (E.D. Va. 1976).

Whether employees of independent contractor could maintain negligence action against defendant bank depended upon whether the work performed by independent contractor was part of the defendant’s “trade, business or occupation.” Johnson v. Jefferson Nat'l Bank, 244 Va. 482 , 422 S.E.2d 778, 9 Va. Law Rep. 501, 1992 Va. LEXIS 120 (1992) (decided under former § 65.1-29).

Liability not based on future use of project. —

The determination of liability is not based on the future use to which any particular project will be put. Holt v. Bowie, 343 F. Supp. 962, 1972 U.S. Dist. LEXIS 13479 (W.D. Va. 1972).

Frequency and regularity of performance are factors to be considered in determining whether work is “normally carried on through employees.” Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 1976 Va. LEXIS 223 (1976); Vandergrift v. United States, 500 F. Supp. 237, 1979 U.S. Dist. LEXIS 8325 (E.D. Va. 1979), aff'd, 634 F.2d 628 (4th Cir. 1980).

The fact that services are useful, necessary, or even absolutely indispensable to the work does not conclusively make them part of defendant’s “trade, business or occupation.” Salih v. Lane, 244 Va. 436 , 423 S.E.2d 192, 9 Va. Law Rep. 475, 1992 Va. LEXIS 116 (1992) (decided under former § 65.1-30).

Mere capacity to perform, standing alone, is not determinative. Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 1976 Va. LEXIS 223 (1976); Vandergrift v. United States, 500 F. Supp. 237, 1979 U.S. Dist. LEXIS 8325 (E.D. Va. 1979), aff'd, 634 F.2d 628 (4th Cir. 1980).

Nor is performance which is a de minimis part of the total business operation. Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 1976 Va. LEXIS 223 (1976); Vandergrift v. United States, 500 F. Supp. 237, 1979 U.S. Dist. LEXIS 8325 (E.D. Va. 1979), aff'd, 634 F.2d 628 (4th Cir. 1980).

Work appropriately performed by employer’s own employees is part of his business. —

If the work is of such a character that it ordinarily or appropriately would be performed by the principal employer’s own employees in the prosecution of its business, or as an essential part in the maintenance thereof, it is a part or process of his work. Sears, Roebuck & Co. v. Wallace, 172 F.2d 802, 1949 U.S. App. LEXIS 2779 (4th Cir. 1949).

Thus plant maintenance or construction work regularly and customarily done by a manufacturer for himself is part of his trade, business or occupation within the meaning of this section. Walker v. United States Gypsum Co., 270 F.2d 857, 1959 U.S. App. LEXIS 5062 (4th Cir. 1959), cert. denied, 363 U.S. 805, 80 S. Ct. 1240, 4 L. Ed. 2d 1148, 1960 U.S. LEXIS 1084 (1960).

And a manufacturer doing construction work for itself, and not for others, can be a substituted employer of the employees of subcontractors within the meaning of the Workmen’s (now Workers’) Compensation Act. Walker v. United States Gypsum Co., 270 F.2d 857, 1959 U.S. App. LEXIS 5062 (4th Cir. 1959), cert. denied, 363 U.S. 805, 80 S. Ct. 1240, 4 L. Ed. 2d 1148, 1960 U.S. LEXIS 1084 (1960).

Construction work not part of manufacturing business. —

As a general rule, the several trades involved in construction work are not part of the business of manufacturing products for sale; every manufacturer must have a plant, but this fact alone does not make the work of constructing a plant a part of the trade or business of every manufacturer who engages a contractor to construct a plant. Stone v. Door-Man Mfg. Co., 260 Va. 406 , 537 S.E.2d 305, 2000 Va. LEXIS 134 (2000).

Shared responsibility for loading and securing owner’s transformers made driver shared employee. —

Driver who was employed by a subcontractor and fell off an owner’s ladder while tarping a load of power transformers was the owner’s statutory employee under subsection A of § 65.2-302 because the owner’s employees and the subcontractor’s employees shared responsibility for tarping and securing the transformers to a trailer; thus, § 65.2-307 barred the driver from suing the owner for negligence. Armendarez v. ABB, Inc., No. 7:07CV00557, 2008 U.S. Dist. LEXIS 82241 (W.D. Va. Oct. 16, 2008).

Work not done as part of owner’s trade or business. —

One who contracts with the owner of a mill to buy, cut and remove logs from another’s land and deliver to the mill, carrying on an independent business, performing his own work according to his own methods, using his own equipment and employing his own servants and exercising exclusive supervision over them, does not perform any work for the mill owner which constitutes part of the mill owner’s trade or business. Perkinson v. Thomas, 158 Va. 699 , 164 S.E. 561 , 1932 Va. LEXIS 289 (1932).

3.Stranger to the Business.

“Stranger to the work” test. —

The work in which a Ford employee’s employer was engaged was the particular business of manufacturing and selling motor vehicles and the defendants, who were contractors and subcontractors hired by Ford to construct a new body shop, were strangers to that business and, therefore, could not show that the employee was their statutory fellow employee and the employee’s common-law action for personal injuries against the defendants was not barred. Stone v. Door-Man Mfg. Co., 260 Va. 406 , 537 S.E.2d 305, 2000 Va. LEXIS 134 (2000).

Where, in an area covered by a distributor under his contract with an oil company, only the distributor could solicit business—the oil company was forbidden to do so, except as to certain national accounts over which the distributor had no control—it was not a part of the trade, business or occupation of the oil company to carry on business in the area allocated to the distributor. Barnhart v. AMOCO, 237 F. Supp. 492, 1965 U.S. Dist. LEXIS 9737 (E.D. Va. 1965), aff'd, 354 F.2d 659, 1966 U.S. App. LEXIS 7570 (4th Cir. 1966).

When the owner of a merchandising business employed a contractor to make alterations in its storage warehouse to facilitate its merchandising activity, the owner was free from the obligation to furnish compensation to the contractor’s employees and remained liable for its torts. Sears, Roebuck & Co. v. Wallace, 172 F.2d 802, 1949 U.S. App. LEXIS 2779 (4th Cir. 1949).

The work of building a church was not a part of the trade, business or occupation of the church so as to make the church liable for compensation under this section. Kramer v. Kramer, 199 Va. 409 , 100 S.E.2d 37, 1957 Va. LEXIS 205 (1957); Anderson v. Thorington Constr. Co., 201 Va. 266 , 110 S.E.2d 396, 1959 Va. LEXIS 221 (1959).

An oil company which is engaged in exploring, drilling and processing petroleum products and then wholesaling such products to retail dealers but which does not operate retail service stations or provide automotive services through its own employees is not a statutory employer of employees of the independent contractors which retail its products. Shell Oil Co. v. Leftwich, 212 Va. 715 , 187 S.E.2d 162, 1972 Va. LEXIS 246 (1972).

Where the four oil companies operated service stations which constituted less than two percent of all service stations of a certain brand name in Virginia, the oil company was not normally in the business of retailing petroleum products and performing automotive services; therefore, the employee of an independent dealer was not the statutory employee of the oil company. SUNOCO v. Lawrence, 213 Va. 596 , 194 S.E.2d 687, 1973 Va. LEXIS 190 (1973).

Tobacco companies do not as a part of the conduct of their usual business operations send out their own trucks to pick up tobacco from their suppliers; therefore, employees of a trucking company do not become the employees of the tobacco companies by operation of this section and they are not precluded from suing the tobacco companies because of former § 65.1-40 (now § 65.2-307 ). Barber v. Loews Theatres, Inc., 355 F. Supp. 136, 1972 U.S. Dist. LEXIS 10741 (W.D. Va. 1972).

Where no evidence showed that construction and leasing company normally installed and maintained leasing signs through its own employees, thus, although claimant’s work may have been useful or necessary to the company’s business, because the company did not perform such work through its own employees, the commission did not err in finding that claimant’s activity was not part of the company’s trade, business, or occupation. Accordingly, the commission did not err in finding that the company was not claimant’s statutory employer. Spitzer v. Fried Co., 1997 Va. App. LEXIS 331 (Va. Ct. App. May 27, 1997).

In the manufacturing industry, construction work is typically outside the custom of the trade, and manufacturers who use their employees for such work generally do so only infrequently and irregularly. The courts have largely agreed that such manufacturers are not statutory employers of employees of independent contractors hired for such work. Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 1976 Va. LEXIS 223 (1976).

Where appellant claimant was injured while building sheds for a contractor who had agreed to build the sheds for a mill, the mill was not the claimant’s statutory employer under the first prong of the Shell Oil test and subsection A of § 65.2-302 because, although the mill provided the materials for the sheds and sold the sheds when they were completed, the mill was not in the business, trade, or occupation of building sheds and never built sheds except on one occasion when the claimant was injured. Berger v. Dalton Lumber Corp., 2002 Va. App. LEXIS 202 (Va. Ct. App. Apr. 2, 2002).

But where a manufacturer regularly does its own construction work with its own employees, designation of that manufacturer as a statutory employer may occur according to the other circumstances of the case. Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 1976 Va. LEXIS 223 (1976).

Janitorial subcontractor. —

Virginia Worker’s Compensation Act statutory bar prevented the employee from recovering from the employer’s janitorial subcontractor; the facts established the subcontractor not a stranger to the employer’s business. The essential nature of the subcontractor’s function was demonstrated by the fact the subcontractor’s work was required to be performed every regular business day; further, the fact the employer was responsible for paying the subcontractors associated with cleaning/trash pickup emphasized such parties’ overarching responsibility for properly maintaining the premises. McGowan v. ABM Janitorial Servs., Northeast, Inc., No. 2:10cv388, 2011 U.S. Dist. LEXIS 70621 (E.D. Va. June 29, 2011), aff'd, 464 Fed. Appx. 153, 2012 U.S. App. LEXIS 2266 (4th Cir. 2012).

Construction work not part of owner’s trade or business. —

Decedent, an employee of a contractor hired by an owner to construct warehouses, was not engaged in the owner’s trade or business when he suffered fatal injuries in the course of employment, as his construction work was not part of the owner’s business, which was real estate development; thus, the owner was not his statutory employer, and workers compensation exclusivity under § 65.2-307 did not bar plaintiff’s wrongful death suit against the owner. Rodriguez v. Leesburg Bus. Park, LLC, 287 Va. 187 , 754 S.E.2d 275, 2014 Va. LEXIS 25 (2014).

Installation and erection of an air compressor was part of a shipyard’s “trade, business or occupation,” so that an employee of the seller of the compressor, engaged in such installation, was not a “stranger” to the business of the shipyard, and the Workers’ Compensation Act was applicable. McCann v. Newport News Shipbuilding & Dry Dock Co., 177 F. Supp. 909, 1959 U.S. Dist. LEXIS 2739 (D. Va. 1959).

Where a foundation constructed by an independent contractor was an integral part of the installation of an air compressor on the premises of a shipyard, the work performed by the independent contractor constituted a part of the “trade, business or occupation” of the shipyard and the independent contractor would not be considered a “stranger to the business” of the shipyard. McCann v. Newport News Shipbuilding & Dry Dock Co., 177 F. Supp. 909, 1959 U.S. Dist. LEXIS 2739 (D. Va. 1959).

Injury caused by “stranger to the business.” —

Where the injury is caused by the negligence of one not engaged in the overall undertaking, a “stranger to the business,” it is not an accident inherent in the project, the cost of which should ultimately be borne by the project, and the injured workman’s rights and remedies outside of the Act are preserved. Turnage v. Northern Va. Steel Corp., 336 F.2d 837, 1964 U.S. App. LEXIS 4303 (4th Cir. 1964); Bergen v. Fourth Skyline Corp., 501 F.2d 1174, 1974 U.S. App. LEXIS 7193 (4th Cir. 1974).

Public utility liable where installation of the equipment was required by law. —

Though the public utility did not normally install the type of central office equipment that subcontractor’s employee was installing, the installation of that equipment was nevertheless part of the public utility’s trade, business, or occupation because it was an addition to the physical plant that the public utility was required by law to provide. Henderson v. Central Tel. Co., 233 Va. 377 , 355 S.E.2d 596, 3 Va. Law Rep. 2494, 1987 Va. LEXIS 203 (1987).

B.Subcontracted Fraction.

Subcontracted fraction test. —

Under the “subcontracted fraction of the work” test, a general contractor was the statutory employer of an employee of a subcontractor and was obligated to provide benefits to the claimant where the general contractor had been hired to repair and reshingle a flat roof, reshingle the rest of the roof and build a new front porch, and had subcontracted the fraction of the contract requiring the replacement of the roof to the claimant’s employer; the general contractor’s trade, business or occupation was general home repair, which includes roof repair, it had entered into a single contract to repair the porch and roof of a residence and, when the claimant was injured while working on the subcontracted fraction of the work involving the replacement of the roof, he was engaged in the general contractor’s trade or business. Mount Vernon Bldrs., Inc. v. Rotty, 28 Va. App. 511, 507 S.E.2d 95, 1998 Va. App. LEXIS 616 (1998).

Workers’ Compensation Commission properly denied a worker benefits for an injury he received while installing laminate flooring in a commercial building because the employer had less than three employee, the worker failed to prove that any of the alleged employers were statutorily liable for his injuries where the building manager was merely acting as an agent for the owner in contracting with a tenant for work on a portion of the building, and the owner hired independent contractors — not subcontractors — including the employer to perform the work on its building. Divino v. Uninsured Emplr's Fund, 2020 Va. App. LEXIS 202 (Va. Ct. App. July 14, 2020).

Subcontracted fraction exception. —

The subcontracted fraction exception is defined as follows: If the work out of which the accident arose was obviously a subcontracted fraction of that contract and, in the language of the statute, not part of the trade, business or occupation of the owner, the general contractor who engaged the subcontractor to perform that fraction is the statutory employer of the injured worker, whether directly employed by the primary subcontractor or by a secondary subcontractor. Evans v. B.F. Perkins Co., a Div. of Standex Intern Corp., 166 F.3d 642, 1999 U.S. App. LEXIS 1139 (4th Cir. 1999).

Where work employee performed was a subcontracted fraction of owner’s “main business concern,” under the statute, owner and general contractor qualified as employee’s statutory employers and, as such, were immune from employee’s Virginia common law action. Evans v. B.F. Perkins Co., a Div. of Standex Intern Corp., 166 F.3d 642, 1999 U.S. App. LEXIS 1139 (4th Cir. 1999).

Although the Commission did not specifically analyze the subcontractor’s status using the subcontracted-fraction test, the Commission did not err in requiring the subcontractor to pay benefits to claimant. The divit installation was clearly a subcontracted fraction of the main remodeling contract and not part of the trade, business, or occupation of the owner, whose business was operating a restaurant. Thus, the subcontractor was claimant’s statutory employer and liable for benefits under this section. F. Richard Wilton, Jr., Inc. v. Gibson, 22 Va. App. 606, 471 S.E.2d 832, 1996 Va. App. LEXIS 430 (1996).

C.Independent Contractors.

Section not applicable to independent contractors. —

Where independent contractor drove truck for employer and was in accident, commission did not erroneously make distinction between his status and that of other drivers of his trucks, since this section is not applicable to independent contractors even though they may otherwise be engaged in work of owner. Smith v. Charles G. Crews Sons, No. 0246-88-3 (Ct. of Appeals March 7, 1989).

Roofer was acting as an independent contractor at time of his injury, and therefore was not entitled to recover from roofing company as a statutory employer under this section. Juarez v. C. Woolfrey Constr., 1999 Va. App. LEXIS 370 (Va. Ct. App. June 22, 1999).

One who is engaged in the trade, business or occupation of another, when engaged as a subcontractor, falls under the protective canopy of the Workmen’s (now Workers’) Compensation Act. In certain instances this is true even if the party is an independent contractor. Barnhart v. AMOCO, 237 F. Supp. 492, 1965 U.S. Dist. LEXIS 9737 (E.D. Va. 1965), aff'd, 354 F.2d 659, 1966 U.S. App. LEXIS 7570 (4th Cir. 1966).

The workers’ compensation exclusive remedy provision barred a personal injury suit by an employee of one subcontractor on a condominium construction project against another subcontractor for personal injuries sustained during the course of the employee’s job. Both the plaintiff’s employer, which had contracted to complete the exterior finish system of the project, and the defendant subcontractor, which had contracted to dig, install and test natural gas lines and to connect them to the condominium buildings, were engaged in the work of the general contractor and, therefore, the defendant subcontractor was the plaintiff’s co-statutory employee and was immune from suit. Pfeifer v. Krauss Constr. Co. of Va., Inc., 262 Va. 262 , 546 S.E.2d 717, 2001 Va. LEXIS 60 (2001).

Relationship of independent contractor not transformed into that of master-servant. —

The relationship of statutory employer does not transform the relationship of independent contractor into that of master-servant or invoke the doctrine of respondeat superior. Race Fork Coal Co. v. Turner, 5 Va. App. 350, 363 S.E.2d 423, 4 Va. Law Rep. 1430, 1987 Va. App. LEXIS 247 (1987), rev'd, 237 Va. 639 , 379 S.E.2d 341, 5 Va. Law Rep. 2382, 1989 Va. LEXIS 70 (1989).

Protection afforded to independent contractor. —

Although the basic purpose of this section is to assure that workers are protected by responsible employers paying workers’ compensation benefits, the section has the ancillary effect of placing independent contractors subject to its terms under the protective umbrella of the owner’s workers’ compensation coverage. An independent contractor performing services for a “statutory employer” cannot be an “other party” liable in a common-law action. The contractor’s employees are therefore barred from suing their employer to the same extent that they are barred from suing the owner who is their “statutory employer.” Farish v. Courion Indus., Inc., 722 F.2d 74, 1983 U.S. App. LEXIS 14855 (4th Cir. 1983); Vess v. Davis Elec. Constructors, Inc., 613 F. Supp. 1047, 1985 U.S. Dist. LEXIS 17775 (W.D. Va. 1985), aff'd, 818 F.2d 30, 1987 U.S. App. LEXIS 5600 (4th Cir. 1987).

When workmen employed by independent contractor may maintain common-law action against general contractor. —

If a general contractor contracts with another contractor to perform work which is not a part of the general contractor’s trade, business or occupation, that other contractor is an independent contractor within the meaning of the Workmen’s (now Workers’) Compensation Act, and under former § 65.1-5 (now § 65.2-101 ), workmen employed by the other contractor are not precluded from maintaining a common-law action against the general contractor. Slusher v. Paramount Warrior, Inc., 336 F. Supp. 1381, 1971 U.S. Dist. LEXIS 10776 (W.D. Va. 1971).

Owner is not required to furnish compensation for the employee of a contractor or subcontractor and remains liable as a third party to the employee for negligence which causes injury, unless the work undertaken by the contractor is part of the owner’s trade, business or occupation. When the work is not within the scope of the owner’s business, and he undertakes to have it executed by an independent contractor, the latter’s employees, to use the language of former § 65.1-5 (now § 65.2-101 ), are not considered “the employees of the person or corporation employing or contracting with such independent contractor.” Sears, Roebuck & Co. v. Wallace, 172 F.2d 802, 1949 U.S. App. LEXIS 2779 (4th Cir. 1949).

Contractor had no duty to inquire into work eligibility of subcontractor’s employees. —

Claimant was employed by subcontractor, and contractor, though a statutory employer of claimant, had no duty to inquire into the work eligibility of his subcontractor’s employees. Manis Construction Co. v. Arellano, 13 Va. App. 292, 411 S.E.2d 233, 8 Va. Law Rep. 1466, 1991 Va. App. LEXIS 301 (1991).

Firm was not statutory employer. —

Firm hired to “oversee and coordinate the work remaining with the existing subcontractors” on a home building project was not claimant’s statutory employer, where there was no contract between the firm and the carpentry contractor who employed claimant and who was paid directly by the homeowners. R & Q Constr. Co. v. Muddiman, No. 1720-89-4 (Ct. of Appeals Oct. 30, 1990).

Owner is liable for compensation only if work is part of his trade or business. —

Liability will only be imposed on an owner if an independent contractor is doing work which the owner generally does perform. Holt v. Bowie, 343 F. Supp. 962, 1972 U.S. Dist. LEXIS 13479 (W.D. Va. 1972).

An owner, simply by acting as his own general contractor, contracting with independent contractors, does not thereby become a statutory employer unless the work performed by the independent contractor “is a part of [the owner’s] trade, business or occupation.” Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 1976 Va. LEXIS 223 (1976).

The trial court did not err in rejecting in claimant’s argument that even if the commission did not err in finding that he was an independent contractor, it erred in not holding defendant responsible to him for workers’ compensation benefits pursuant to this section; this section does not provide workers’ compensation benefits to independent contractors who are not employees under the Act. Rather, it renders an owner liable for workers’ compensation benefits to workers employed by a subcontractor, where the owner has contracted with the subcontractor for the subcontractor to perform work which is a part of the owner’s trade, business, or occupation. Bowling v. P & G Oil Corp., 1996 Va. App. LEXIS 780 (Va. Ct. App. Dec. 10, 1996).

But owner may perform part of trade or business through subcontractor. —

There was no merit in the contention that though the owner, a turnpike authority, was vested with the power and responsibility of building a road it did not exercise such power in that it employed no workmen for that purpose. The answer to this argument is that by its express terms this section contemplates that the owner may perform or execute work which is a part of his trade, business or occupation through a “subcontractor.” Anderson v. Thorington Constr. Co., 201 Va. 266 , 110 S.E.2d 396, 1959 Va. LEXIS 221 (1959).

Then employees of subcontractor are statutory employees of owner. —

Once it is established that the work being done by the subcontractor is a part of the owner’s general business, the employees of the subcontractor became statutory employees of the owner even though their immediate employer is an independent contractor. Snowden v. VEPCO, 432 F. Supp. 266, 1976 U.S. Dist. LEXIS 11989 (E.D. Va. 1976).

Where an independent contractor is performing work which is a part of the trade, business or occupation of the owner, the employees of the independent contractor are statutory employees of the owner, and as such limited to the benefits and compensation under the Workmen’s (now Workers’) Compensation Act, and precluded from instituting or maintaining a suit at common law against the owner. This is so even where employee’s employer carried workmen’s (now workers’) compensation for his employees, and thus made it unnecessary for the employee to look to the owner for said benefits. Snowden v. VEPCO, 432 F. Supp. 266, 1976 U.S. Dist. LEXIS 11989 (E.D. Va. 1976).

Lawn care provider was not a statutory employer under subsection A of § 65.2-302 because a business owner, who had subcontracted all of his lawn care business to the provider and used the provider’s employees, retained control of daily operations and oversaw the work to be done at the time of the claimant’s accident. The business owner was the claimant’s statutory employer and had to comply with its obligation to provide coverage under the Workers’ Compensation Act. Turf Care, Inc. v. Henson, 51 Va. App. 318, 657 S.E.2d 787, 2008 Va. App. LEXIS 104 (2008).

Construction contractor and electrical contractor held statutory employees of utility company. —

Even though a construction contractor and an electrical contractor were independent contractors, in a construction project for a utility company their employees were statutory employees of the utility company since both contractors were engaged in the trade, occupation and business of the utility company. Thus, plaintiff, the administrator of the estate of an employee of the construction contractor who was electrocuted, could not be allowed to pursue a common-law negligence action against the electrical contractor. Vess v. Davis Elec. Constructors, Inc., 613 F. Supp. 1047, 1985 U.S. Dist. LEXIS 17775 (W.D. Va. 1985), aff'd, 818 F.2d 30, 1987 U.S. App. LEXIS 5600 (4th Cir. 1987).

CIRCUIT COURT OPINIONS

Claim barred. —

Subcontractor to federal government agency, whose employees allegedly injured an employee of another subcontractor to the federal government agency, could not be sued by the injured employee, since under the authorized governmental activity test the employees were engaged in the federal government agency’s trade, business, or occupation, and were statutory fellow employees; therefore, the injured employee’s claim was barred by the operation of the exclusivity provisions of the Workers’ Compensation Act. Burke v. H & H Consol., Inc., 55 Va. Cir. 84, 2001 Va. Cir. LEXIS 242 (Norfolk Mar. 15, 2001).

Where a subcontractor was, at the time of the injury, a statutory employee, he was barred from pursuing a common law claim by application of the Virginia Code. Ferreira v. Boeing Serv. Co., 60 Va. Cir. 237, 2002 Va. Cir. LEXIS 279 (Fairfax County Oct. 17, 2002).

Accident victim’s claim against a contracting elevator company that maintained city elevators was barred by the exclusive remedy provision, § 65.2-307 , of the Virginia Workers’ Compensation Act, § 65.2-100 et seq., as (1) the victim was a statutory employee of the city; (2) the mandate of the city included the improvement, repair, and maintenance of public buildings; (3) the work delegated by the city to the elevator contracting company, and performed by its employees, was part of the trade, business, or occupation of the city; and (4) the elevator contracting company was not an “other party” against whom the victim could maintain a suit in tort, under § 65.2-309 . Brooks v. Blueridge Gen., Inc., 67 Va. Cir. 274, 2005 Va. Cir. LEXIS 46 (Portsmouth May 9, 2005).

Injured employee for a subcontractor on a construction project was barred by §§ 65.2-300 and 65.2-307 from bringing suit against the general contractor and two other subcontractors for the construction project because, under subsection B of § 65.2-302 , the general contractor was the statutory employer of the employee and the subcontractors were statutory co-employees of the employee. Aguilar v. Diaz, 88 Va. Cir. 44, 2014 Va. Cir. LEXIS 6 (Loudoun County Feb. 10, 2014).

Claim not barred. —

Truck driver’s action to recover damages for injuries he sustained while unfolding a tarp was not barred because pursuant to the Normal Work Test, a company could not be designated as a statutory employer for purposes of the exclusivity provision of the Virginia Workers’ Compensation Act since tarping was not an activity in its normal course of business carried on by its employees; there was no evidence the company’s employees held a responsibility to assist contracted drivers in tarping loads. Pack v. Georgia-Pacific LLC, 95 Va. Cir. 351, 2017 Va. Cir. LEXIS 74 (Roanoke Apr. 6, 2017).

Longshoreman as statutory employee. —

Because the longshoreman was a “statutory employee” of a shipping company, his sole remedy for injuries received while engaged in his employment as it related to the subcontractors was governed by the Workers’ Compensation Act. Butts v. York Int'l Corp., 59 Va. Cir. 422, 2002 Va. Cir. LEXIS 232 (Portsmouth Sept. 5, 2002).

Subcontractor as statutory employee. —

Suit filed by an injured worker, who was employed by a trucking company, against a dairy was dismissed as he was a statutory employee of the dairy under § 65.2-302 and his exclusive remedy was to file a claim under the Virginia Workers’ Compensation Act, § 65.2-100 et seq., as: (1) the worker was injured while reloading returned goods and empty milk crates onto trailers at the time of his injury, (2) loading returned goods and empty milk crates onto trailers for return to the dairy was a part of the dairy’s business of distributing dairy products, and was done by dairy employees at nearly every distribution center, and (3) that loading returned goods and empty crates onto the trailers was the trucking company’s contractual obligation was demonstrated by the plain language of the contract. Bishop v. Valley Rich Dairy, 62 Va. Cir. 354, 2003 Va. Cir. LEXIS 121 (Roanoke July 28, 2003).

Employee of subcontractor as statutory employee. —

Truck driver who worked for a company that was hired by a business to transport merchandise from a distribution center the business owned to its stores was a statutory employee of the business, and he was precluded by the Virginia Workers’ Compensation Act from suing the business to recover damages for injuries he sustained when he was struck by a tractor driven by one of the business’s employees while he was at the distribution center to pick up merchandise for transport. Leake v. Family Dollar Stores, Inc., 62 Va. Cir. 46, 2003 Va. Cir. LEXIS 317 (Warren County May 7, 2003).

Subcontracted fraction exception. —

Injured party was employed by a security firm to assist in controlling the crowd at an auto race when the injured party was hit by a piece of debris that fell from a hydraulic lift operated by a broadcasting company. The injured party was a statutory employee of racetrack by means of the subcontracted fraction exception, and therefore workers’ compensation was the exclusive remedy as to the racetrack. There was no evidence that the racing league that sponsored the event was in the business of broadcasting, and because the broadcasting company was a stranger to the work of the racing league and not engaged in the racing league’s trade, business, or occupation, the broadcasting company was not a statutory employee of the racing league under the Virginia Workers’ Compensation Act, nor a fellow statutory employee with the injured party, and therefore those defendants were “other parties” as defined by § 65.2-309 and were subject to suit. Lincoln v. Int'l Speedway Corp., 59 Va. Cir. 133, 2002 Va. Cir. LEXIS 333 (Richmond May 29, 2002).

Subcontractor fraction test was inapplicable because there was no general contractor; the owner of the machinery hired multiple independent, prime contractors to perform the work of converting the machinery. Standish Alexander v. St Tissue, LLC, 94 Va. Cir. 426, 2016 Va. Cir. LEXIS 192 (Richmond Oct. 25, 2016).

Work not part of trade, business or occupation of claimant’s employer. —

Business’s plea in bar asserting that an injured contractor was its statutory employee at the time of his injury, and thus, he was limited to a claim for workers’ compensation benefits in his personal injury action, was overruled because the work being performed by his direct employer, installing and repairing fire detection and sprinkler systems, was not part of the normal trade, business, or occupation of the business, which primarily involved meat processing; moreover, any plumbing work on the waterlines performed by the business’s 50 to 60 person maintenance team was a de minimis part of the business’s 500-contractor work force. Fose v. Gwaltney of Smithfield, Ltd., 67 Va. Cir. 347, 2005 Va. Cir. LEXIS 47 (Portsmouth May 12, 2005).

Plea in bar by an elevator company, which contracted with an employer to maintain and repair the elevators at a building which the employer managed, on the basis of the exclusive remedy provision of subsection A of § 65.2-307 was denied because the employer, which paid workers’ compensation benefits to its employee who was injured when an elevator at the building malfunctioned, was not the elevator company’s statutory employer. While the maintenance of the elevators in the building was clearly an indispensable activity of the businesses of both the employer and the owners of the building, the evidence was insufficient to persuade the court that elevator maintenance and repair was an activity that was normally carried on by employees of either the employer or the building owner. Guardian Realty Mgmt., Inc. v. Otis Elevator Co., 2006 Va. Cir. LEXIS 40 (Fairfax County Jan. 5, 2006).

Because contractors did not have an employer in common with the decedent, they were not statutory co-employees, and none of the self-described statutory co-employees were employed by the decedent’s actual employer; thus, the contractors were “other parties,” and the exclusivity provision of the Virginia Workers’ Compensation Act did not apply to the estate’s wrongful death action. Standish Alexander v. St Tissue, LLC, 94 Va. Cir. 426, 2016 Va. Cir. LEXIS 192 (Richmond Oct. 25, 2016).

Holding company was not the decedent’s statutory employer because it manufactured and sold tissue paper, and converting a copy paper plant into a tissue paper plant was an essential preliminary step to allow the holding company to manufacture and sell tissue paper, but the business of the decedent’s employer was manufacturing, not converting plants; thus, the holding company was an “other party,” and the exclusivity provision did not apply in the estate’s wrongful death action. Standish Alexander v. St Tissue, LLC, 94 Va. Cir. 426, 2016 Va. Cir. LEXIS 192 (Richmond Oct. 25, 2016).

“Stranger to the work” test. —

Exclusive remedy provisions of the Virginia Workers’ Compensation Act did not prevent, plaintiff, subcontractor 1’s employee, from suing defendant subcontractor 2 for injuries he received on the job site while painting a coal loader, because plaintiff was a stranger to the owner’s work and not a statutory employee of the owner for purposes of subsection A of § 65.2-302 . Applying the normal work test, the court held that the highly specialized and infrequently performed painting project was not a part of the owner’s trade, business, or occupation. Masterson v. Am. Heavy Indus., 84 Va. Cir. 432, 2012 Va. Cir. LEXIS 126 (Norfolk Apr. 12, 2012).

Employees of stevedoring companies were statutory employees of Virginia Port Authority. —

Where plaintiff employee and defendant employee worked for stevedoring companies operating at a general cargo terminal owned by the Virginia Port Authority (VPA), and plaintiff alleged that he was injured as a result of defendant’s negligence, plaintiff’s exclusive remedy was under the Virginia Workers’ Compensation Act because plaintiff and defendant were statutory fellow employees. The work of the parties’ employers constituted the “trade, business, or occupation” of the VPA. Stephen v. Dickens, 63 Va. Cir. 403, 2003 Va. Cir. LEXIS 348 (Norfolk Nov. 13, 2003).

Roanoke Regional Airport Commission not statutory employer. —

Roanoke Regional Airport Commission was not the statutory employer of a driver of a transportation service since the founding act establishing the Commission granted it the authority to establish and operate an airport and air navigation facilities, and the power to grant the authority to operate a ground transportation service, but not the power to operate a ground transportation facility; since the Commission did not and could not subcontract with the driver’s employer to provide transportation services, the Commission was not the statutory employer of the driver, and the driver’s suit was not barred by the exclusivity rule of subsection A of § 65.2-307 . Cunningham v. Roanoke Reg'l Airport Comm'n, 2006 Va. Cir. LEXIS 273 (Roanoke County Dec. 28, 2006).

Grocery store was truck driver’s statutory employer. —

Because a truck driver was still in the process of completing a delivery at the time of his alleged injury, and hence, still engaged in the trade, business, or occupation of the grocery store at the time of the accident, his exclusive remedy for said injury was under the laws covering workers’ compensation; thus, the grocery store’s plea of the workers’ compensation bar was sustained. Walls v. Food Lion, L.L.C., 66 Va. Cir. 26, 2004 Va. Cir. LEXIS 341 (Richmond July 13, 2004).

I.Intentional Acts.

Editor’s note.

Some of the cases annotated below were decided under former § 65.1-38 or prior law.

A.“Willfulness” generally.

“Willful” imports something more than a mere exercise of the will in doing the act. It imports a wrongful intention, an intention to do an act that the employee knows, or ought to know, is wrongful, or forbidden by law. It involves the idea of premeditation and determination to do the act, though known to be forbidden. There cannot be a willful failure to perform an unknown duty. The language used in this section covers something more than negligence, however gross. King v. Empire Collieries Co., 148 Va. 585 , 139 S.E. 478 , 1927 Va. LEXIS 257 (1927).

“Willful misconduct” is a question of fact. —

The question of whether an employee was guilty of willful misconduct is a question of fact to be resolved by the commission. Watford v. Colonial Williamsburg Foundation, 13 Va. App. 501, 413 S.E.2d 69, 8 Va. Law Rep. 1662, 1992 Va. App. LEXIS 2 (1992) (decided under former § 65.1-38).

This claim was denied on the ground that the employee who died in an industrial accident had engaged in willful misconduct. Adams ex rel. Boysaw v. Hercules, Inc., 21 Va. App. 458, 465 S.E.2d 135, 1995 Va. App. LEXIS 931 (1995).

The questions of whether an employee is guilty of willful misconduct and whether such misconduct is a proximate cause of the employee’s accident are issues of fact. Brockway v. Easter, 20 Va. App. 268, 456 S.E.2d 159, 1995 Va. App. LEXIS 452 (1995).

“Willful misconduct” in abstract mixed question of fact and law. —

Whether employee’s conduct in the abstract constitutes willful misconduct is a mixed question of fact and law and is reviewable by Court of Appeals. Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 327, 437 S.E.2d 205, 10 Va. Law Rep. 578, 1993 Va. App. LEXIS 560 (1993).

It signifies “with deliberate intent.” —

The meaning of the word “willful” in this connection is “with deliberate intent.” If the employee knows the rule, and yet intentionally does the forbidden thing, he has “willfully failed to obey” the rule. Riverside & Dan River Cotton Mills, Inc. v. Thaxton, 161 Va. 863 , 172 S.E. 261 , 1934 Va. LEXIS 311 (1934).

Willful misconduct requires something more than negligence. “ ‘Willful’ . . . imports something more than a mere exercise of the will in doing the act. It imports a wrongful intention.” One of the salutary purposes of worker’s compensation acts is to provide specified benefits for injuries arising out of and in the course of employment regardless of fault of the employer or employee, except instances of willful misconduct or intentional injury. The common law defense of contributory negligence is abolished by the act. Uninsured Employer's Fund v. Keppel, 1 Va. App. 162, 335 S.E.2d 851, 1985 Va. App. LEXIS 78 (1985).

Negligence, regardless how gross, does not bar recovery for worker’s compensation benefits. Uninsured Employer's Fund v. Keppel, 1 Va. App. 162, 335 S.E.2d 851, 1985 Va. App. LEXIS 78 (1985).

Where it was unclear whether an employee’s failure to stop at a stop sign was willful disobedience or negligence, the employee was improperly denied workers’ compensation benefits for his injures in an accident arising from his failure to stop; willful misconduct requires something more than negligence. Finney v. Mason, 2004 Va. App. LEXIS 344 (Va. Ct. App. July 13, 2004).

Proof of negligence, even gross negligence, alone will not support the defense, for willful misconduct imports something more than a mere exercise of the will in doing the act; it imports a wrongful intention. Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 327, 437 S.E.2d 205, 10 Va. Law Rep. 578, 1993 Va. App. LEXIS 560 (1993).

Proof of negligence will not support the defense of willful misconduct; willful misconduct requires something more than negligence. Phipps v. Rann Indus., Inc., 16 Va. App. 394, 429 S.E.2d 886, 9 Va. Law Rep. 1342, 1993 Va. App. LEXIS 119 (1993).

Notice and burden of proof. —

This section and Rule 4 of the Rules of the Industrial (now Workers’ Compensation) Commission merely require the giving of notice if the employer intends to interpose an affirmative defense to bar an otherwise meritorious claim. Neither provision relieves the claimant of the burden of proving his case. Anderson v. East Coast Fish & Scallop, 10 Va. App. 215, 391 S.E.2d 347, 6 Va. Law Rep. 2306, 1990 Va. App. LEXIS 69 (1990).

Virginia Workers’ Compensation Commission properly found that a workers’ compensation benefits claimant’s evidence established an injury by accident because there were no inconsistencies in the claimant’s testimony; because a credible claim was established, evidence of self-inflicted injury under § 65.2-306 could only be admitted to contradict the claim upon notice that the defense would be raised, and an employer failed to give such notice. Jenkins v. Webb, 52 Va. App. 206, 662 S.E.2d 633, 2008 Va. App. LEXIS 300 (2008).

Virginia Workers’ Compensation Commission properly awarded a workers’ compensation claimant benefits because an employer offered no excuse or explanation for its failure to comply with the notice requirements of Va. Workers’ Comp. Comm’n R. 1.10; the employer never asserted a self-inflicted injury defense under § 65.2-306 , and the failure to give proper notice deprived the claimant of the opportunity to subpoena witnesses and gather evidence in response to the defense. Jenkins v. Webb, 52 Va. App. 206, 662 S.E.2d 633, 2008 Va. App. LEXIS 300 (2008).

Suicide may be compensable. —

Where injury and its consequences directly result in worker’s loss of normal judgment and domination by a disturbance of the mind causing the suicide, his suicide is compensable. A suicide committed by worker suffering from this degree of disturbance is not considered “willful” or an “intentional” injury even though the action is volitional since the suicide relates back to the original injury rather than existing independently of the injury. Food Distribs. v. Estate of Ball, 24 Va. App. 692, 485 S.E.2d 155, 1997 Va. App. LEXIS 311 (1997).

Failure to report OSHA violation. —

Evidence was not sufficient to show that complainant was guilty of willful misconduct by failing to report an Occupational Safety & Health Act (OSHA) violation. Wyle v. Professional Services Industries, 12 Va. App. 684, 406 S.E.2d 410, 7 Va. Law Rep. 2961, 1991 Va. App. LEXIS 142 (1991).

Facts not showing willful misconduct. —

Where a member of the national guard, while returning to camp with an intoxicated companion, suffered injury when struck by an electric car while attempting to recover his companion from the track, it was held that the fact that claimant might have dozed while sitting on the track was not such misconduct as precluded recovery under this section. Globe Indem. Co. v. Forrest, 165 Va. 267 , 182 S.E. 215 , 1935 Va. LEXIS 295 (1935).

Although employee may have been guilty of driving too fast under the circumstances of the heavy load on his truck and the curve in the highway, and thus causing his truck to overturn which caused his death, and in so doing, his conduct was negligent, possibly even grossly negligent, however, proof of gross negligence did not equate with proof of willful misconduct, thus, proof of trucker’s violation of the statute through negligence, without more, did not support a finding of willful misconduct to justify barring award of death benefits to trucker’s widow and daughter. Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 327, 437 S.E.2d 205, 10 Va. Law Rep. 578, 1993 Va. App. LEXIS 560 (1993).

Credible evidence supported Commissions’s finding that claimant was engaged in a “troubleshooting mission” and that, under these circumstances, it was permissible to work on the belt with the drive pulley operating. Upon this finding, employer’s defense of willful misconduct or violation of a safety rule could not prevail. Brockway v. Easter, 20 Va. App. 268, 456 S.E.2d 159, 1995 Va. App. LEXIS 452 (1995).

Willful misconduct barring award to tow truck driver was not present where there was no evidence that his failure to wear a seat belt was willful or intentional and the evidence was insufficient to prove that he had been wearing his seat belt at the time of the accident, this would have prevented the injury. Old v. Huckaby, 1995 Va. App. LEXIS 563 (Va. Ct. App. July 5, 1995).

Credible evidence proved that the October 1995 injury was minor and did not cause disability. Claimant testified that she was not aware that she had sustained any fracture as a result of the October 1995 incident. Based upon this evidence, the commission could conclude that claimant did not intend to mislead her employer or her doctors when she failed to mention the October 1995 incident. Accordingly, the Commission did not err in holding that claimant was not barred from receiving an award of compensation benefits on the ground of willful misconduct. Georgia-Pacific Corp. v. Hicks, 1997 Va. App. LEXIS 558 (Va. Ct. App. Aug. 26, 1997).

Evidence was insufficient to show that the claimant willfully failed to use a safety appliance at the time that he was injured while demolishing a chimney where (1) the claimant testified that he had never demolished a chimney before and sought instruction from employer, but received no safety directions, and (2) no evidence showed that the employer ever held safety meetings; that the employer ever promulgated safety rules, or that the employer ever told its employees, including the claimant, to shore the chimney by using a brace. Jungers v. Powers, 1998 Va. App. LEXIS 545 (Va. Ct. App. Oct. 27, 1998).

The Workers’ Compensation Commission did not err in failing to find that the claimant was barred from recovery by subdivisions (A)(1) or (5) based on his conduct in reaching into a machine that split concrete blocks in order to remove a chunk of concrete where the claimant and other employees testified that the employer did not train or instruct its employees with regard to the method of removing chunks from the machine and that employees routinely reached into the machine with their hands to remove chunks. Tarmac America, Inc. v. Salmon, Jr., 1998 Va. App. LEXIS 636 (Va. Ct. App. Dec. 8, 1998).

Where a truck driver had been injured in an accident which occurred when he was unable to stop before striking another vehicle and the employer argued that the speed at which the driver was traveling was excessive given the weather conditions, even if the court was to conclude that the weather conditions dictated a lesser speed, the driver’s conduct, at most, might be characterized as negligent and negligence alone, even gross negligence, will not support a finding of willful misconduct. Dan River, Inc. v. Giggetts, 34 Va. App. 297, 541 S.E.2d 294, 2001 Va. App. LEXIS 61 (2001).

No intentional or willful violation of a company safety rule that an employee behave in a certain way if he was behind, crossing, or in a driver’s blind spot existed where an employee was killed by a vacuum truck that unexpectedly backed over the employee, as credible evidence supported the finding that the employee was unaware that the employee was behind the vacuum truck or in the driver’s blind spot. Mega Contrs. v. Burrell, 2003 Va. App. LEXIS 35 (Va. Ct. App. Feb. 4, 2003).

Where the workers’ compensation claimant, a professional hockey player, was injured in a fight that the claimant was ordered by the claimant’s coach to instigate, the employer, in a workers’ compensation case, did not show that the claimant’s injury was the result of willful misconduct under § 65.2-306 , as the employer failed to rebut the evidence that the claimant was engaged in an activity required by the claimant’s employment; furthermore, the employer failed to rely on the willful misconduct defense in accordance with Virginia Workers’ Comp. Comm’n R. 1.10. Norfolk Admirals v. Jones, 2005 Va. App. LEXIS 443 (Va. Ct. App. Nov. 1, 2005).

Workers’ Compensation Commission did not err in rejecting the employer’s willful misconduct defense based on the fact that the claimant tested positive for methadone after the accident, because the testimony of the director of the medical clinic where the claimant received methadone explained that the medication was administered in a structured program under a doctor’s supervision, and would not have interfered with a patient’s normal activities, including the ability to work. Dominion Coal Corp. v. Bowman, 53 Va. App. 367, 672 S.E.2d 122, 2009 Va. App. LEXIS 55 (2009).

Claimant was entitled to temporary total disability and medical benefits, following an altercation at work with a coworker, because credible evidence supported a finding that the claimant’s lower back injury arose out of the claimant’s employment, in that the claimant was not the aggressor in the work-related altercation and in that the claimant did not intend to act unprofessionally, did not willfully breach the employer’s professional conduct rules, or otherwise willfully commit misconduct. Fairfax Cnty. Gov't v. Monroe, 2015 Va. App. LEXIS 125 (Va. Ct. App. Apr. 14, 2015).

Employee guilty of willful misconduct. —

Where an electrician was killed by replacing light bulbs without taking out the switch controlling adjoining power lines, which, by a rule of his employer, he was required to do, it was held that the electrician was guilty of “willful misconduct” and could not recover. Riverside & Dan River Cotton Mills, Inc. v. Thaxton, 161 Va. 863 , 172 S.E. 261 , 1934 Va. LEXIS 311 (1934).

Commission held justified in concluding that claimant, a lineman, was guilty of willful misconduct in disregarding a company rule that he wear rubber gloves when working on an energized line, and that this conduct was the proximate cause of his injury since it was his hand which first came in contact with the line. Mills v. VEPCO, 197 Va. 547 , 90 S.E.2d 124, 1955 Va. LEXIS 254 (1955).

In a claim arising out of the amputation of the claimant’s hand when she attempted to dislodge a piece of meat debris from the tray of a machine she was assigned to clean, the Commission correctly concluded that the claimant had successfully rebutted the employer’s defense of willful breach of a safety rule where the evidence revealed that at least one supervisor occasionally used his hand to remove stuck meat debris without fear of any disciplinary consequences from the employer, the claimant’s testimony indicated that she witnessed her supervisor on several occasions remove meat debris from the tray by using his hands, the claimant further testified that she was instructed by the supervisor to use her hands to remove meat debris while the machine was running and a co-worker testified that she regularly used her hands to remove stuck meat debris while the machine was engaged. Gwaltney of Smithfield, Ltd. v. Hagins, 32 Va. App. 386, 528 S.E.2d 162, 2000 Va. App. LEXIS 328 (2000).

The Commission did not err in ruling that an employee was barred from receiving workers’ compensation benefits on the grounds that he had willfully violated a safety rule by being lifted into the air by a forklift while standing on a pallet. The evidence established that a rule prohibited lifting a worker on a forklift without a safety cage, that this rule was designed to provide for the safety of employees, and that the employee knew of the rule. Wallace v. Prod. Support Servs., 2001 Va. App. LEXIS 315 (Va. Ct. App. June 5, 2001).

Denial of a worker’s claim for compensation for injury caused by his use of an “up-cut” saw was proper pursuant to subsection A of § 65.2-306 because the worker’s supervisor testified that the worker was never trained to use the saw, had enough wood already at his workstation to complete his project, and could have used another available saw on day of the accident; the workers’ compensation commission found the supervisor’s testimony credible and rejected the worker’s testimony. The worker testified that he understood “pretty much” everything and knew he was not to use equipment for which he received no training. Pinoth v. Glaize Co., 2006 Va. App. LEXIS 303 (Va. Ct. App. July 11, 2006).

B.Safety Rules, Regulations, etc.

To prevail upon a defense of willful misconduct under this section, employer had to establish: (1) that the safety rule was reasonable, (2) that the rule was known to employee, (3) that the rule was for employee’s benefit, and (4) that employee intentionally undertook the forbidden act. Spruill v. C. W. Wright Construction Company, Inc., 8 Va. App. 330, 381 S.E.2d 359, 5 Va. Law Rep. 2951, 1989 Va. App. LEXIS 72 (1989).

If the safety rule is reasonable and is known to the employee and for his benefit, and yet he intentionally does the forbidden act, then he is guilty of willful misconduct within the meaning of this section. Watford v. Colonial Williamsburg Foundation, 13 Va. App. 501, 413 S.E.2d 69, 8 Va. Law Rep. 1662, 1992 Va. App. LEXIS 2 (1992) (decided under former § 65.1-38).

To successfully raise a defense of willful misconduct, the employer must establish (1) that the safety rule or other duty was reasonable, (2) that the rule was known to the employee, (3) that the rule was for the employee’s benefit, and (4) that the employee intentionally undertook the forbidden act. Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 327, 437 S.E.2d 205, 10 Va. Law Rep. 578, 1993 Va. App. LEXIS 560 (1993).

To establish a defense based on an employee’s willful breach of a rule or regulation adopted by the employer, the employer must prove: (1) The rule was reasonable; (2) the employee knew of the rule; (3) the rule was for the employee’s benefit and (4) the employee intentionally performed the forbidden act. Dan River, Inc. v. Giggetts, 34 Va. App. 297, 541 S.E.2d 294, 2001 Va. App. LEXIS 61 (2001).

Employer must prove “willful” disregard. —

The employer bears the burden of proving that the claimant’s conduct was in “willful” disregard of a reasonable safety rule established by the employer and made known to the claimant. Gwaltney of Smithfield, Ltd. v. Hagins, 32 Va. App. 386, 528 S.E.2d 162, 2000 Va. App. LEXIS 328 (2000).

Breach of express safety rule or order. —

Ordinarily, the breach of an express rule or order will be held to be serious or willful misconduct as a matter of fact, especially if the rule or order was made especially for the safety of the employee. Riverside & Dan River Cotton Mills, Inc. v. Thaxton, 161 Va. 863 , 172 S.E. 261 , 1934 Va. LEXIS 311 (1934).

Where an employee, with actual knowledge of a safety rule, with practical knowledge of its importance and purpose, and despite the warning of his superior and that of his fellow workman, deliberately and willfully failed to comply with the regulation, and failed to use the safety appliance designed for his protection and security, the situation came squarely within this section. Griffey v. Clinchfield Coal Corp., 183 Va. 715 , 33 S.E.2d 178, 1945 Va. LEXIS 219 (1945).

If a safety rule is reasonable and is known to the employee and for his benefit, and yet he intentionally does the forbidden act, then he is guilty of willful misconduct within the meaning of this section. The employer is not required to prove that the employee, with the rule in mind, purposely determined to break it. Mills v. VEPCO, 197 Va. 547 , 90 S.E.2d 124, 1955 Va. LEXIS 254 (1955); Peanut City Iron & Metal Co., Inc. v. Jenkins, 207 Va. 399 , 150 S.E.2d 120, 1966 Va. LEXIS 235 (1966).

Disregard of an express order, especially one made for the safety of the employees, usually constitutes willful misconduct. Uninsured Employer's Fund v. Keppel, 1 Va. App. 162, 335 S.E.2d 851, 1985 Va. App. LEXIS 78 (1985).

Where an experienced steel worker knew about a safety rule and its purpose, but was not in compliance when injured, credible evidence supported the workers’ compensation commission’s finding that the worker willfully violated a safety rule and was not entitled to workers’ compensation benefits. Byam v. North Star Constr. Corp., 2003 Va. App. LEXIS 209 (Va. Ct. App. Apr. 8, 2003).

Where an employer had created reasonable safety rules regarding hair, the employee was aware of the rules, and the employee willfully violated the rules by failing to restrain the employee’s hair while working on a machine, the employee was not entitled to workers’ compensation benefits under subdivision A 5 of § 65.2-306 . Daniel v. Atlas Roofing, 2003 Va. App. LEXIS 682 (Va. Ct. App. Dec. 23, 2003).

Evidence supported a workers’ compensation commission’s finding that a worker’s conduct was a willful disregard of a safety rule, and the commission’s denial of benefits to the worker where, although the worker was told to install toe boards on a roofing job, the worker failed to follow the directed procedure, leading to his fall from roof. Zeledon v. GCR, Inc., 2005 Va. App. LEXIS 426 (Va. Ct. App. Oct. 25, 2005).

Workers’ Compensation Commission did not err in denying claimant benefits because credible evidence supported the findings that he intentionally violated a known safety rule by placing his left hand over a moving saw blade; the facts clearly proved that the requirement that a carpenter keep his hands away from the saw blade was a known safety rule, and claimant acknowledged that he intentionally placed his hand over the spinning blade to hold down a piece of wood. Gutierrez-Lazo v. Coburn & Clay Bldg. Dev. Corp., 2014 Va. App. LEXIS 230 (Va. Ct. App. June 3, 2014).

Virginia Workers’ Compensation Commission did not err in concluding that an employer proved its affirmative defense of willful misconduct because credible evidence supported a finding that the claimant’s willful violation of his employer’s rule and the statutory requirement proximately caused his injuries; the Commission could reasonably infer that the claimant’s injuries resulted from being thrown out of the driver’s seat, which was a consequence of his failure to wear a seatbelt. Mailloux v. Am. Transp., 2018 Va. App. LEXIS 260 (Va. Ct. App. Oct. 9, 2018).

Intentional violation not found. —

Workers’ Compensation Commission properly found that the employer did not meet its burden of proving that claimant was injured because she intentionally violated a known safety rule; Commission was free to interpret claimant’s testimony as meaning that she had to do her job even if obstacles were in the way, as long as working around them did not violate employer’s clear path rule. Thus, claimant’s actions amounted to negligence at most, which did not preclude an award of benefits. Klockner Pentaplast of Am. v. Miller, 2021 Va. App. LEXIS 135 (Va. Ct. App. July 27, 2021).

While this section generally bars an employee's claim before the Commission for injury sustained by willful breach of an employer's safety rule, an employee may overcome this bar by showing that the safety rule was not actually kept alive by any bona fide enforcement; the evidence is sufficient to conclude employer failed to adequately enforce its own safety rule. Truteam & Ace Am. Ins. Co. v. Dequintanilla, 2022 Va. App. LEXIS 26 (Va. Ct. App. Feb. 1, 2022).

Reasonableness of rule mixed question of law and fact. —

Whether the rule is reasonable and applies to the situation from which the injury results, and whether the claimant knowingly violated it, is a mixed question of law and fact to be decided by the Commission and reviewable by Appellate Court. Brockway v. Easter, 20 Va. App. 268, 456 S.E.2d 159, 1995 Va. App. LEXIS 452 (1995).

Proof of a pattern or practice of failing to discipline employees guilty of willful violations of a safety rule defeats the defense afforded an employer by this section, but only when such violations occur under circumstances charging the employer with knowledge and acquiescence. VEPCO v. Kremposky, 227 Va. 265 , 315 S.E.2d 231, 1984 Va. LEXIS 242 (1984).

Rule enforced by employer. —

Workers’ compensation benefits were properly denied to a claimant under subsection A of § 65.2-306 on the basis that he breached a workplace safety rule requiring him to wear back brace. Though the claimant was never disciplined for not wearing a back brace, he was corrected each time he was observed not wearing one, and he complied with the correction; thus, the rule was enforced. Mouhssine v. Crystal City Laundry, 62 Va. App. 65, 741 S.E.2d 804, 2013 Va. App. LEXIS 153 (2013).

Employer’s failure to enforce other rules was not a defense. —

Employer’s subdivision A 5 of § 65.2-306 defense was successful as the employer’s failure to enforce a safety rule requiring employees to read a meat slicer manual and undergo training prior to operating the slicer did not negate the employer’s more specific safety rule requiring employees to unplug the slicer prior to cleaning. Pitt v. Shackleford's Rest. & Va. Commerce Group Self-Insurance Ass'n, 2012 Va. App. LEXIS 94 (Va. Ct. App. Mar. 27, 2012).

Employee may rebut the defense of willful misconduct by showing that the violated rule was not kept alive by bona fide enforcement or that there was a valid reason for his inability to obey the rule. Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 327, 437 S.E.2d 205, 10 Va. Law Rep. 578, 1993 Va. App. LEXIS 560 (1993).

Knowledge of rule must be shown. —

A claimant was not barred from receiving compensation because of his willful misconduct in disobeying an alleged rule where knowledge of the rule had not been brought home to him, and, moreover, it did not appear that the alleged regulation was approved by the Commission, as this section requires. Tyree v. Commonwealth, 164 Va. 218 , 179 S.E. 297 , 1935 Va. LEXIS 196 (1935).

Where worker, who had limited command of the English language, did not understand the safety documents he signed, was unaware of the employer’s written safety policy that prohibited his from putting his hands into the machines, did not recall being given safety instructions about his hands, and was not shown a safety video, the commmission’s determination that the employer did not prove it had made the rule known to the worker or had taken “reasonable steps” to do so was supported by credible evidence, and the commission’s award of benefits to the worker would be affirmed. Valleydale Foods, Inc. v. Lee, 2002 Va. App. LEXIS 21 (Va. Ct. App. Jan. 15, 2002).

Virginia Workers’ Compensation Commission did not err in finding that a decedent’s death was not due to willful misconduct that barred his heirs’ recovery, because the evidence supported the Commission’s finding that the decedent’s method of riding on a lift was, at most, negligent and did not violate a known safety rule. Va. Linen Serv. v. Wise, 2005 Va. App. LEXIS 224 (Va. Ct. App. June 7, 2005).

Workers’ Compensation Commission did not err in relying on claimant’s use of a table saw, rather than a jigsaw, to cut a small piece of wood to bar his compensation benefits because the employer’s notice included the particular allegation of violation; the employer’s notice stated that in addition to safety guard and push stick violations, claimant did not keep his hands away from the saw blade while cutting the board. Gutierrez-Lazo v. Coburn & Clay Bldg. Dev. Corp., 2014 Va. App. LEXIS 230 (Va. Ct. App. June 3, 2014).

Intentional violation of safety rule properly found. —

Sufficient evidence supported a finding that a workers’ compensation claimant intentionally violated a known safety rule for subdivision A 5 of § 65.2-306 purposes where: (1) although the employer did not train the claimant in the operation and cleaning of a meat slicer, the claimant had used one in his previous job; (2) safety rules governing the operation of the slicer were posted directly above it; (3) the claimant admitted he knew he was supposed to unplug the machine before cleaning it; (4) the claimant, who had already removed the slicer’s visible safety equipment and handle for cleaning, was away from the machine for no more than 5 to 10 seconds, and there was not sufficient time for anyone else to plug the machine back in; and (5) based on the fact that the slicer came on when the clamant began to clean it, the workers’ compensation commission was entitled to disbelieve his testimony that he unplugged the machine before cleaning it. Pitt v. Shackleford's Rest. & Va. Commerce Group Self-Insurance Ass'n, 2012 Va. App. LEXIS 94 (Va. Ct. App. Mar. 27, 2012).

Claimant was not entitled to workers’ compensation benefits because the claimant intentionally committed conduct that was forbidden under a workplace safety rule which the employer had put in place that was communicated to the claimant on a number of occasions. Therefore, the claimant’s conduct was willful. Layne v. Crist Elec. Contr., Inc., 64 Va. App. 342, 768 S.E.2d 261, 2015 Va. App. LEXIS 37 (2015).

Denial of workers’ compensation claim by an employee, a truck driver, was appropriate because the employee willfully violated known safety rules regarding securing company trucks that were promulgated in part for the benefit of the employee and the employee’s own failure to engage a truck’s emergency brake and to install tire chocks caused resulted in the employee’s injuries. In addition, the employee failed to rebut the defense as the evidence did not establish that the safety rule was not enforced. Callahan v. Rappahannock Goodwill, 2018 Va. App. LEXIS 288 (Va. Ct. App. Oct. 23, 2018).

Workers’ Compensation Commission did not err in denying the claim for benefits because the claimant’s injury was caused by his violation of a known safety rule that was enforced by the employer as the claimant could have entered the fenced area through the gate, thus causing the machinery within the area to automatically deactivate, but, instead, he circumvented the gate and entered the area through a small opening not designed for ingress while the machines continued to operate, and one of those machines pinned the claimant’s leg and injured it; and the claimant himself acknowledged that the safety rule requiring employees to enter the fenced area through the gate, thereby deactivating the equipment in the area, was enforced. Jones v. Crothall Laundry, 69 Va. App. 767, 823 S.E.2d 37, 2019 Va. App. LEXIS 35 (2019).

Workers’ Compensation Commission properly barred an employee from an award of benefits because, by acknowledging that he intended to put his seat belt on at some point, and yet did not put it on when he knew he was required to do so, the employee demonstrated that he was violating the seatbelt statute purposefully, not accidentally, and with deliberate intent, and the uncontested and uncontroverted evidence supported the court’s finding that the employee’s injuries were proximately caused by his failure to wear his seat belt and his resulting ejection from his truck. Mizelle v. Holiday Ice, Inc., 2020 Va. App. LEXIS 68 (Va. Ct. App. Mar. 10, 2020).

Intentional violation not found. —

Workers’ Compensation Commission properly awarded total disability benefits and medical benefits to the employee because credible evidence supported the Commission’s finding that the employee established that he was injured while working for employer, and that his actions in attempting to guide a hand truck did not constitute “lifting” in violation of employer’s safety rule and the Virginia Code inasmuch as the employee never contended that he injured his back while lifting boxes. Snelling Staffing/Chesapeake & Ace Am. Ins. Co. v. Edwards, 2019 Va. App. LEXIS 79 (Va. Ct. App. Apr. 9, 2019).

Because credible evidence supported the Workers’ Compensation Commission’s finding that the employer failed to meet its burden to prove that claimant willfully breached a known safety rule when claimant entered a trommel to clean it, the grant of benefits was upheld. Claimant presented the only evidence of what actually happened on the date of the accident, testifying the key to the trommel was in the off position when he entered the trommel, the trommel was not turning when he entered it, and after he had been working inside the machine for two minutes, the trommel began to spin. Loudoun Composting, LLC v. Hernandez, 2020 Va. App. LEXIS 185 (Va. Ct. App. June 30, 2020).

Recovery not barred where application of safety rule not clear. —

Sufficient evidence supported the holding of the Virginia Workers’ Compensation Commission that § 65.2-306 did not bar a workers’ compensation claim arising from the claimant’s injury suffered while lifting a slab of granite because, although a known safety rule existed that required the use of a forklift for certain lifting, it was not obvious when the use of forklifts was required, and the employer’s owner admitted that he had not given specific rules or guidelines as to when to use a forklift. Am. Zurich Ins. Co. v. Amundsen, 2009 Va. App. LEXIS 150 (Va. Ct. App. Mar. 31, 2009).

Finding by Commission that rule is reasonable satisfies statutory requirement. —

The statutory requirement of Commission approval is satisfied by the finding of the Commission, in the course of claim litigation, that the rule is reasonable and proper for enforcement. Watford v. Colonial Williamsburg Foundation, 13 Va. App. 501, 413 S.E.2d 69, 8 Va. Law Rep. 1662, 1992 Va. App. LEXIS 2 (1992) (decided under former § 65.1-38).

Acts prohibited by statute. —

If an employee is injured by an accident which arises out of and in the course of his employment, and which proximately causes the injury complained of, he is not barred from recovery under the section by the fact that at the time of the accident he was engaged in doing an act which was forbidden by a general statute of the State, for the violation of which a penalty is prescribed, unless the employer can show that he had knowledge of the statute, or that reasonable steps had been taken to bring home to him notice of its existence. The burden is on the employer to show that the employee willfully neglected or refused to observe the statute. King v. Empire Collieries Co., 148 Va. 585 , 139 S.E. 478 , 1927 Va. LEXIS 257 (1927).

Any violation of any traffic law did not constitute a willful failure to perform a duty required by statute. Finney v. Mason, 2004 Va. App. LEXIS 344 (Va. Ct. App. July 13, 2004).

Workers’ compensation claim was properly denied on the ground that the claim was barred under subsection A of § 65.2-306 by the claimant’s willful failure to perform a duty required by statute since the evidence showed that, despite highway signs warning against stopping on the side of the road unless it was an emergency, the claimant stopped his truck on the shoulder to urinate and, therefore, failed to comply with § 46.2-830 by not obeying lawfully erected signs. The Workers’ Compensation Commission’s finding that the claimant’s excuse, unsupported by any evidence that he had a medical condition that caused the sudden need to urinate, did not constitute an “emergency” was a matter for the Commission to determine based upon an assessment of the evidence and the claimant’s credibility. Patterson v. Valley Proteins, Inc., 2006 Va. App. LEXIS 68 (Va. Ct. App. Feb. 21, 2006).

Workers’ Compensation Commission’s finding that a workers’ compensation claimant’s violation of state law by stopping his truck on the shoulder of a highway to urinate was the proximate cause of his subsequent accident in which he was struck by another truck while he was pulling his truck back onto the highway was supported by the evidence. The claimant’s act of merging into traffic necessarily followed his act of deliberately stopping on the side of the road, and thus, stopping on the side of the road began a natural and continuous sequence that proximately caused the accident. Patterson v. Valley Proteins, Inc., 2006 Va. App. LEXIS 68 (Va. Ct. App. Feb. 21, 2006).

Failure to wear safety belt was not willful violation of rule. —

Commission’s finding, that claimant’s failure to wear a safety belt at the time he fell into an elevator shaft was not a willful violation of the employer’s safety rule, was supported by credible evidence; claimant was not working inside the shaft but he was merely looking down into it and did not believe that a safety belt was necessary. Miller & Long Co. v. Harrison, No. 0514-89-4 (Ct. of Appeals April 24, 1990).

Although claimant willfully violated employer’s safety seat belt rule, he was allowed recovery because his injuries arose from a deliberate attack on his person which occurred after he was out of the truck’s cab, circumstances totally unrelated to those safety considerations which underpinned employer’s seat belt rule. Smithfield Packing Co. v. Carlton, 29 Va. App. 176, 510 S.E.2d 740, 1999 Va. App. LEXIS 133 (1999).

II.Intoxication, Nonprescribed Controlled Substance.

Intoxication causing accident. —

Finding that claimant’s consumption of alcoholic beverages impaired his ability to operate and control his vehicle, and thus was the proximate cause of his accident, was sufficient to establish willful misconduct which disqualified the claimant for compensation benefits under subdivision (3) (now subdivision A 3) of this section. Morgan v. Morgan, No. 1471-87-2 (Ct. of Appeals Nov. 1, 1988).

Injury must be proximately caused by intoxication. —

To establish the affirmative defense in subdivision (3) (now subdivision A 3), an employer must prove by a preponderance of the evidence that intoxication proximately caused the claimant’s injuries. American Safety Razor Company v. Hunter, 2 Va. App. 258, 343 S.E.2d 461, 1986 Va. App. LEXIS 266 (1986).

Commission was required to consider whether complainant’s intoxication played any part in contributing to his injury, i.e. by affecting his balance or causing him to disregard the danger of an unsecured ladder. Wyle v. Professional Services Industries, 12 Va. App. 684, 406 S.E.2d 410, 7 Va. Law Rep. 2961, 1991 Va. App. LEXIS 142 (1991) (decided under former § 65.1-38).

Virginia Workers’ Compensation Commission did not err in finding a compensable injury and awarding the claimant benefits because, although the Commission found that employer had proven that the claimant was intoxicated at work, that it had a safety rule, known by the employee, prohibiting employees from being at work while under the influence of alcohol, and that the claimant willfully violated that safety rule, the employer did not establish that the claimant’s intoxication was a proximate cause of his fall from the ladder as the claimant had performed his job on the ladder successfully for some period of time before his fall; and the Commission found that the claimant’s fall was caused by the inherent dangers posed by working on ladders. Andersen Interior Contr. v. Nimmo, 2017 Va. App. LEXIS 49 (Va. Ct. App. Feb. 21, 2017).

Severe intoxication. —

An employee may abandon his employment by reaching an advanced state of intoxication which renders the employee incapable of engaging in his duties. This result is not based upon a special statutory defense of intoxication. Rather, a severely intoxicated employee has removed himself from the scope of his employment. Any injuries thereafter suffered are not “in the course of” the employment. The rule does not apply, however, where an intoxicated employee continues actively to perform his duties. American Safety Razor Company v. Hunter, 2 Va. App. 258, 343 S.E.2d 461, 1986 Va. App. LEXIS 266 (1986).

Evidence of intoxication. —

There was credible evidence that claimant’s ability to control his vehicle was impaired by consumption of alcoholic beverages and that such impairment and loss of control proximately caused the accident, where claimant, when admitted to the emergency room about three hours after the accident, had the odor of alcohol on his breath and an analysis of claimant’s blood showed a concentration of alcohol equivalent to .215%, according to the testimony of a toxicologist. Ivey v. Jerry P. Puckett Constr. Co., 230 Va. 486 , 338 S.E.2d 640, 1986 Va. LEXIS 150 (1986).

Toxicologist’s intoxication opinion not binding. —

Although the toxicologist’s opinion was that the claimant had a blood alcohol content of .20 and was intoxicated at the time of the accident, that evidence could be found to be contrary to the evidence of those who observed the claimant, his condition, his activities, and his work during the course of the morning. The toxicologist’s extrapolation of the claimant’s blood alcohol level at an earlier time was based on variables which are not clear from the record, and the opinion is not binding and conclusive upon the fact finder. Ball Lumber Co. v. Jones, No. 1716-94-2 (Ct. of Appeals April 18, 1995).

No evidence injury due to alcohol consumption. —

There was no credible evidence to support the Commission’s finding that claimant’s injury was due to alcohol consumption, where there was no evidence presented that his manner, disposition, speech, muscular movement, general appearance or behavior were affected and the accident was as likely attributable to youthful, poor judgment as to the consumption of two or three beers. Gardiner v. Superior Supply Assocs., No. 0263-89-2 (Ct. of Appeals April 24, 1990).

CIRCUIT COURT OPINIONS

Employee’s conduct. —

This section requires that no compensation shall be awarded to the employee or his or her dependents for an injury or death caused by six categories of conduct, including, inter alia, intoxication, the failure to use a safety appliance, and the willful breach of any reasonable rule or regulation adopted by the employer and known to the employee. Such defenses are clearly at odds with strict liability. Bailey v. Hensley, 93 Va. Cir. 344, 2016 Va. Cir. LEXIS 74 (Roanoke May 6, 2016).

NOTES FROM THE WORKERS’ COMPENSATION COMMISSION

General:

Note: Notice of a § 65.2-306 defense must be given no less than 15 days prior to the hearing. See Commission Rule 1.10.

Section 65.1-38 (now § 65.2-306 ) and Rule 4 (now Rule 1.10) merely require that an employer give notice if he intends to interpose an affirmative defense to bar an otherwise meritorious claim. It does not relieve an employee from the burden of proving his case. Therefore, the Commission acted properly in denying benefits on the basis that the employee’s gunshot wound was self-inflicted despite the employer’s failure to allege willful misconduct. Anderson v. East Coast Fish & Scallop, 10 Va. App. 215, 391 S.E.2d 347, 6 Va. Law Rep. 2306, 1990 Va. App. LEXIS 69 (1990).

Claim alleging suicide linked to chronic pain and depression resulting from the work accident is not barred by § 65.2-306 (A)(1), since the work accident was not self-inflicted. Ball v. Food Distributors, 75 O.W.C. 187 (1996).

An employee will be estopped from asserting Rule 4 (now Rule 1.10) when his testimony at the hearing indicates a willful violation of a safety rule but prior to the hearing he denied a material fact that was critical to a safety violation defense. A party will not be denied the benefit of a statutory right by enforcement of an administrative rule when the rule could not have reasonably been pursued due to a false statement of the opposing party. Wyle v. Professional Services Industries, Inc., 69 O.I.C. 77 (1990). (Remanded on other grounds, 12 Va. App. 684, 406 S.E.2d 410 (1991)).

The burden of proof is on the party who claims exemption or forfeiture. Whitfield v. Va. Dyeing Corp., 52 O.I.C. 282 (1970) (appeal denied).

Defendant has burden of proving willful misconduct. Where the Commission can as readily assume that injury resulted from inadvertence or carelessness as from an intentional violation of a known rule, defendant has not sustained the burden. Morgan v. Va. Tractor Co., Inc., 51 O.I.C. 193 (1969) (appeal denied); Shifflet v. Dept. of Highways, 40 O.I.C. 137 (1958); Brockman v. Va. Elec. & Power Co., 31 O.I.C. 9, 106, 552 (1949).

Proof of a pattern or practice of failing to discipline employees guilty of willful violations of a safety rule defeats the willful misconduct defense. Taylor v. Stone Builders, 75 O.W.C. 11 (1996).

Where a claimant breaks his arm as the result of an industrial accident but prior to the entry of an award rebreaks his arm during an altercation, the employer is entitled to rely upon the defense of willful misconduct with respect to any disability from the second incident. Mallow v. Herbert Brothers, Inc., 66 O.I.C. 45 (1987).

The Commission has interpreted § 65.2-306 and Commission Rule 1.10 as requiring that the employer provide a specific written statement of its intent to rely upon one of the defenses set out in § 65.2-306 , detailing the particular act(s) upon which it bases its defense. Rule 1.10 is not satisfied by mere discovery responses, and proof of “actual notice” of the defense is insufficient for compliance with the rule. Rule 1.10 requires that “a notice” of the defense be timely provided to the claimant, and that a copy of the notice be “filed” with the Commission. Failure to comply with the rule may result in rejection of the defense, as was the case here. Campbell v. Lowes of Short Pump Virginia, VWC File No. 201-91-57 (August 10, 2001), aff’d sub nom. Lowes of Short Pump Virginia v. Campbell, 38 Va. App. 55, 561 S.E.2d 757, 2002 Va. App. LEXIS 213 (2002).

Willful Misconduct:

To prevail on a willful misconduct defense, the employer must establish: (1) that the safety rule was reasonable; (2) that the rule was known to the employee; (3) that the rule was for the employee’s benefit; and (4) that the employee intentionally engaged in the forbidden act. McCrary v. Universal Carpet & Rug Co., 75 O.W.C. 333 (1996) (see also Taylor v. Stone Builders, 75 O.W.C. 11 (1996); Pineda v. Brothers, 78 O.W.C. 1 (1999)).

There must be the deliberate exercise of the will by employee in doing an act known by him to be forbidden. However, employer need not prove that employee, with rule in mind, purposely determined to break it. Mills v. VEPCO, 197 Va. 547 , 90 S.E.2d 124, 1955 Va. LEXIS 254 (1955).

Disregard of an express order, especially one made for the safety of the employees, usually constitutes willful misconduct. McCrary v. Universal Carpet & Rug Co., 75 O.W.C. 333 (1996).

Gross negligence alone on the part of employee is not willful misconduct. Haskins v. National Freight, Inc., 57 O.I.C. 167 (1977); Baughman v. Fairfax County Public Schools, 59 O.I.C. 13 (1980).

Mere bad judgment does not amount to willful misconduct. Hill v. Game Commission, 34 O.I.C. 370, 447 (1952).

While a claimant may be guilty of negligence in choosing a ladder too short or standing on the top rung, such action was not a bar to his claim if it could be considered poor judgment. Brown v. Powell’s Paint Co., 68 O.I.C. 113 (1989).

An early return to work where employer knew of physician’s recommendation to stop work but allowed employee to return is not misconduct. Moore v. Doyle & Russell, Inc., 52 O.I.C. 185 (1970).

Employee testing roller coaster fell from car and was fatally injured. No showing that accident was caused by willful misconduct. Lamm v. Ocean View Improvement Corp., 57 O.I.C. 220 (1976).

Where the claimant is injured in a tractor trailer accident, the employer fails to prove that the claimant fell asleep while driving, in violation of the employer’s policy, with evidence that the claimant “nodded off,” where the testimony of the claimant established that he remembered all the elements of maneuvering the truck prior to the accident. Thompson v. Petroleum Marketers, Inc., 78 O.W.C. 109 (1999).

The employee operated a glue press that malfunctioned. The employee attempted to clean the glue from the rollers before it hardened following normal procedures, but he was unsuccessful. The employer had emphasized the cost to replace rollers if the glue hardened, and the claimant was injured when he tried to clean them with a wet brush. Held, the employee was injured following operating procedures to protect the machinery for the benefit of his employer, and his conduct was not willful. Chaplin v. D-Scan, Inc., 75 O.W.C. 247 (1996).

Where the employee has voluntarily placed himself in a manifestly dangerous place which was not required by any task connected with the employment, the resulting accident arose out of his own willful misconduct. Jenkins v. Dee Shoring Company, 60 O.I.C. 228 (1981).

Where claimant was injured while moving boxes after being specifically told by supervisor not to try to move them without help, her actions were tantamount to willful misconduct and injury was not compensable under § 65.2-38 (now § 65.2-306 ). Tinsley v. Alexandria Hospital, 60 O.I.C. 454 (1981).

Intoxication:

Even though the claimant had been smoking marijuana at some time prior to the accident, there was no evidence to prove it was the proximate cause of the accident. The statement that he used it “close in time” to the accident is insufficient to determine when he used it or that it was the proximate cause of the accident. Novak v. Michael B. Hill Construction Company, VWC File No. 231-99-55 (March 27, 2009).

Employer failed to prove that employee’s alleged cocaine use caused accident; evidence showed that accident occurred while performing tree-clearing work caused by employee’s working on steep, slippery bank that gave way beneath his feet. Shrader v. Asplundh Tree Expert Co., VWC File No. 210-94-69 (Oct. 24, 2003).

Employer proved benefits barred by employee’s intoxication at time of accident; employee injured while pushing machine and wheels locked, causing employee to strike shin and shoulder on machine; blood alcohol tests showed level of .10; evidence showed employee’s judgment impaired by alcohol, which contributed to accident. Price v. Goodyear Tire & Rubber Co., VWC File No. 203-02-61 (Apr. 28, 2003).

Compensation cannot be awarded to an employee for an injury caused by intoxication. The burden of proof is on the employer to prove the claim is barred. Page v. Commercial Plastering & Drywall, 79 O.W.C. 145 (2000).

Subsection A of this section provides that compensation may not be awarded for an employee’s injury that was caused by his intoxication or by his use of a nonprescribed controlled substance. The party asserting this defense bears the burden of proof, but a rebuttable presumption arises that the employee was intoxicated or was using a nonprescribed controlled substance at the time of his injury, if a positive test result is presented from a laboratory certified pursuant to § 65.2-306 B. However, the employer must prove by a preponderance of the evidence that the use of the forbidden substance[s] proximately caused the employee’s injury. The mere fact that a laboratory result showed the presence of alcohol or controlled substances in the claimant’s body does not prove causation. Foster v. Smithfield Packing Co., Inc., 79 O.W.C. 184 (2000).

Burden of proof is on the defendant to establish that the death was proximately caused by intoxication. Written medical reports on blood alcohol test customarily admitted by Commission. Morgan v. Va. Tractor Co., Inc., 51 O.I.C. 193 (1969) (appeal denied); King v. Morris, 49 O.I.C. 173 (1967).

The Commission may take judicial notice of matters of common knowledge or matters that may be easily ascertained by reference to reliable sources. The Federal Register is a reliable source of which judicial notice may be taken. Foster v. Smithfield Packing Co., Inc., 79 O.W.C. 184 (2000).

The employer disclosed in its discovery responses to the claimant the results of tests taken after the work accident that showed recent use of marijuana and alcohol by the employee. However, the employer did not disclose that the laboratory that had performed the tests was a certified laboratory, pursuant to § 65.2-306 B. The Commission agreed with the Deputy Commissioner that, because the cover letter from the laboratory for the tests had not been disclosed to the claimant in discovery as a potential hearing exhibit, the employer could not offer the letter at the hearing to establish proof of such certification. The Commission also agreed that the Deputy Commissioner properly excluded testimony from the employer’s clinic manager that the laboratory was a certified laboratory, and that the Deputy properly refused to take judicial notice of the certification, because the documentation had not been provided in discovery. Foster v. Smithfield Packing Co., Inc., 79 O.W.C. 184 (2000).

The evidence must establish that an employee’s intoxication was the actual cause of the injury. The mere fact that the employee was intoxicated is not sufficient to preclude an award of compensation benefits. American Safety Razor Company v. Hunter, 2 Va. App. 258, 343 S.E.2d 461, 1986 Va. App. LEXIS 266 (1986).

The employer has the burden to prove that the intoxication caused the accident. To do this, the employer must prove the intoxication played a part in contributing to the claimant’s accident. The employer does not have to prove that the intoxication was the only proximate cause, but only that the intoxication played any part in contributing to the accident, that is, that it was a cause of the accident. Page v. Commercial Plastering & Drywall, 79 O.W.C. 145 (2000).

Compensation was denied because the claimant’s ethanol level of .26 was found to have impaired his judgment and made him more likely to fall. Brown v. Powell’s Paint Co., 68 O.I.C. 113 (1989).

In order for intoxication to preclude receipt of workers’ compensation benefits, it is necessary to establish that the injury would not have occurred but for the intoxication. Wyle v. Professional Services Industries, 12 Va. App. 684, 406 S.E.2d 410, 7 Va. Law Rep. 2961, 1991 Va. App. LEXIS 142 (1991).

The employee’s supervisor recalled talking to the claimant on the day of the accident, and he testified that the claimant did not appear to be under the influence of drugs or alcohol, and that he did not behave in an unusual manner. Laboratory tests after the accident showed recent alcohol use, but below the level set forth in § 18.2-266 , and the claimant testified that he had not smoked marijuana for almost a month prior to the accident. The Commission held that the employer presented no evidence that the claimant’s alleged intoxication or use of a controlled substance contributed to the accident, even if the presumption of § 65.2-306 B was assumed. Foster v. Smithfield Packing Co., Inc., 79 O.W.C. 184 (2000).

Safety Appliance:

While the deliberate refusal to use a safety appliance provided by the employer might in a particular case amount to such wanton and reckless conduct as to defeat a claim for compensation, in the ordinary case the use of such appliances is required by specific instructions of the employer or by a rule or regulation adopted by him. An intentional refusal to use such appliances under such circumstances bars a claim for compensation if the cause of the accident. Brown v. Vanguard Constr. Corp., 50 O.I.C. 58 (1968).

Negligent failure to use safety appliance not sufficient; employer must show intentional failure. Emma S. Martin v. General Foam Plastics Corp., 56 O.I.C. 205 (1974) (appeal denied).

Safety Rule:

Benefits denied where claimant’s failure to wear a seatbelt was willful, not excused by the circumstances and the proximate cause of his injuries. Mailloux v. American Transportation, JCN VA02000022106 (April 9, 2018), aff’d. No. 0636-18-4 (Ct. App. of Va., Oct. 9, 2018) (unpublished opinion).

Elements required for establishing a safety rule violation not satisfied where claimant police officer thought a statutory exception in Va. Code § 46.2-1094 prevented the employer’s rule requiring use of a safety belt from applying to her at the time of her motor vehicle accident. Taylor v. Loudoun Cnty., JCN VA00000926589 (Dec. 7, 2016).

Where she offered no evidence of lack of enforcement of a safety rule and of not being disciplined for failure to comply with it, and the employer testified that there had been no previous violations, that it did have a disciplinary procedure in effect, and that the safety rule would be enforced, the claimant failed to meet her burden of proving that employer did not enforce a safety rule. Portillo v. Marriott Hotel, VWC File No. 233-21-15 (Sept. 25, 2008).

Employer failed to prove willful violation of safety rule based on employee’s injury that occurred while disconnected from safety line; employee was working on roof when safety line became tangled; employee disconnected safety line to untangle it, and fell; although employee did not abide by 100%-tie-off policy, Commission found that he did not act with wrongful intention by briefly disconnecting line to untangle it in order to complete assigned job duties. Dasch v. Emclos Corp., VWC File No. 203-69-26 (Jan. 12, 2004).

Employee injured while moving inoperable soda machine in parking lot so he could park in space; supervisor had recently warned employee not to move or “touch” machine; employee’s claim for benefits denied by intentionally violating rule, in place for his benefit, which directly caused injury. Lopez v. PGM Enterprises, Inc., VWC File No. 208-33-82 (May 1, 2003).

Where the employee had notice of a safety rule adopted by his employer, yet deliberately and knowingly violated it and such violation caused the accident, compensation must be denied. Peanut City Iron & Metal Co., Inc. v. Jenkins, 207 Va. 399 , 150 S.E.2d 120 (1966); Griffey v. Clinchfield Coal Corp., 83 Va. 715 , 33 S.E.2d 178 (1945); Riverside Mills v. Thaxton, 161 Va. 863 , 172 S.E.2d 261 (1934); Hypes v. Hercules Powder Co., Inc., 34 O.I.C. 376 (1952); Hamilton v. Commonwealth, 26 O.I.C. 563 (1944) (appeal denied); Wells v. Splash Dam Smokeless Coal Corp., 25 O.I.C. 797 (1943); 26 O.I.C. 115 (1944) (appeal denied); McBee v. Sears, Roebuck & Co., 24 O.I.C. 549 (1942); Dickenson v. Va. Coal & Coke Co., 9 O.I.C. 864, 975 (1927); White v. Portsmouth Lumber Co., 58 O.I.C. 356 (1979).

An employee was precluded from receiving compensation benefits because of willful misconduct in wearing sunglasses rather than protective eye wear as required by the employer’s safety rule. Watford v. Colonial Williamsburg Foundation, 13 Va. App. 501, 43 S.E.2d 69 (1992).

Willful failure to wear safety shoes was basis for denying claim. Carter v. Smith Iron & Metal Co., Inc., 51 O.I.C. 43 (1969).

Use of front-end loader constituted more than negligence. Conner v. Bragg, 203 Va. 204 , 123 S.E.2d 393, 1962 Va. LEXIS 129 (1962) (rehearing denied).

Willful misconduct must be shown to be causally related to injury in order to bar compensation. Delp v. Mountain Empire Flying Service, 56 O.I.C. 94 (1975) (affd. on review); Williams v. Benedict Coal Corp., 181 Va. 478 , 25 S.E.2d 251, 1943 Va. LEXIS 197 (1943); Tyree v. Commonwealth, 164 Va. 218 , 179 S.E. 297 , 1935 Va. LEXIS 196 (1935).

Compensation benefits are denied where employee willfully violated an established safety rule and engaged in willful misconduct which contributed to her death. Ackerman v. Commonwealth of Virginia/Department of Highways and Transportation, 60 O.I.C. 1 (1981).

The claimant who suffered severe electrical burns while working on a power line without rubber gloves in violation of a safety rule was not barred from receiving compensation benefits. Since the claimant believed that the power on the line was off, he did not intentionally violate a safety rule. Spruill v. C. W. Wright Construction Company, Inc., 8 Va. App. 330, 381 S.E.2d 359, 5 Va. Law Rep. 2951, 1989 Va. App. LEXIS 72 (1989).

The employer’s safety rules directed employees to “[g]et help to lift heavy loads when lifting, bend your knees,” “[f]ollow all safety rules written or unwritten,” and “[p]erform his or her job according to safe operating procedures established by the company.” Such rules are essentially unenforceable, leaving to the employee’s discretion whether assistance is needed before lifting any particular object. To find that an employee made a poor choice, within his discretion, is far different from a determination that he willfully and intentionally violated an established safety rule. Louderback v. Rocco Quality Foods, Inc., 76 O.W.C. 234 (1997).

The employee was injured when an electric carpet cutter became stuck and he attempted to dislodge the blade by hitting blade guard. Held, the employer’s instructions not to force the blade, to wait, and to open the carpet cutter did not constitute an express prohibition or specific safety instruction. McCrary v. Universal Carpet & Rug Co., 75 O.W.C. 333 (1996).

The claimant was operating a meat processing machine, on which was posted a warning sign stating, “Danger - Keep Fingers Out of Door Opening.” While pressing on meat above the door area, the claimant’s right hand slipped and his ring finger came in contact with the auger. The Commission held that there was clearly no willful intent on the claimant’s part to place his fingers in the door opening and in close proximity of the auger. Carter v. Conagra Frozen Foods, 76 O.W.C. 160 (1997).

Where there is no evidence that the employer adopted a safety rule requiring ladders to be tied, the employee in failing to secure such ladder did not engage in willful misconduct. Wyle v. Professional Services Industries, 12 Va. App. 684, 406 S.E.2d 410, 7 Va. Law Rep. 2961, 1991 Va. App. LEXIS 142 (1991).

Approval and Enforcement of Rule:

(Note: October 1, 1991 recodification no longer requires the Commission to approve safety rules.).

It is not required that such work rule be submitted to the Commission for its approval prior to hearing. Morgan v. Va. Tractor Co., Inc., 51 O.I.C. 193 (1969) (appeal denied). See also Watford v. Colonial Williamsburg Foundation, 13 Va. App. 501, 413 S.E.2d 69, 8 Va. Law Rep. 1662, 1992 Va. App. LEXIS 2 (1992).

In order for § 65.1-38 (now § 65.2-306 ) to be applicable, the employer’s evidence must establish the enforcement of a safety rule. Ooghe v. Office Overland Personnel, 64 O.I.C. 248 (1985).

In order for there to be a violation of a safety rule the evidence must establish that an employee was informed of the promulgated safety rule and that the regulation was adopted and enforced by the employer prior to the industrial accident. Forehand v. Kempsville Building Materials, Inc., 65 O.I.C. 140 (1986).

Definition of “strict enforcement” of known work rule to use safety appliance. Rush v. C & M Tire Exchange, Inc., 50 O.I.C. 281 (1968).

“Strict enforcement” of a safety rule requires positive action which demonstrates insistence on safe work procedures but does not require an employer to suspend an employee or reduce his wages when a violation of a work rule occurs. A written warning for failure to use a safety belt is sufficient evidence of enforcement. Carrigan v. Cablevision Industries, Inc., 70 O.I.C. 194 (1991).

Where rule requiring use of safety appliance is frequently violated without disciplinary action by employer, compensation is not barred. Breeden v. Ames & Webb, Inc., 34 O.I.C. 410 (1952); Boone v. Suffolk Chemical Co., 57 O.I.C. 45 (1977).

It is not essential that employer suspend employee from job or reduce his wages for violating work rule in order for there to be strict enforcement of rule to bar compensation. Peanut City Iron & Metal Co., Inc. v. Jenkins, 207 Va. 399 , 150 S.E.2d 120, 1966 Va. LEXIS 235 (1966).

Where a claimant who is repeatedly admonished by the employer not to do heavy lifting continues to perform this duty but is not disciplined, willful misconduct has not been established. Pellerin v. Hematology and Oncology Associates, Ltd., 67 O.I.C. 212 (1988).

The right to compensation benefits was forfeited due to willful misconduct by an employee whose failure to properly secure her hair as required by a company safety rule resulted in it being caught in a machine. Watkins v. HBA Cast Products Co., Inc., 70 O.I.C. 188 (1991).

Safety rule not enforced by employer, and, in addition, it is doubtful that the work in which claimant was engaged at the time of accident was covered by employer’s safety rule. Birt v. Allen Roofing, 57 O.I.C. 31 (1977).

Employee was intent on completing work and not purposely disobeying foreman. Murphy v. City of Franklin, 48 O.I.C. 173 (1966).

Statutory Duty:

Claimant’s travelling, at most, seven miles greater than the advisory safe speed at the time of a motor vehicle accident did not constitute willful and wanton conduct, reckless conduct, or willful and intentional conduct. Ahmad v. Richmond Refrigeration Service, JCN VA00001128790 (Jan. 19, 2017).

Claimant convicted of improper driving did not deliberately or intentionally chose to violate a known safety rule or traffic statute or act in a reckless or wanton manner in utter disregard of probable consequences when confronted with emergency situation found by the Deputy Commissioner, acting to avoid collision with another vehicle. Sundance v. Republic Services, Inc., JCN VA02000022644 (Dec. 5, 2016).

Defendant had the burden of proving that claimant’s failure to wear a seatbelt caused his injury. Based on the presented evidence, it would be speculation to conclude that such failure resulted in the injury. Williams v. Mid Atlantic Pavement Markings LLC, JCN VA000000874041 (Sept. 4, 2015).

A truck driver’s deliberate act of pulling onto the shoulder of the Interstate in the absence of an emergency violated a statute concerning failing to obey road signs and thus injuries sustained in an accident that occurred when the driver pulled back onto the Interstate were the result of his willful misconduct. Patterson v. Valley Proteins, Inc., VWC File No. 213-42-77 (June 14, 2005), aff’d, No. 1707-05-3 (Ct. App. Va., Feb. 21, 2006) (Unpublished Opinion).

By use of the word “ willful ” the legislature has made an exception to the ordinary rule that everyone is presumed to know the law. The duty required by statute which imposes a penalty for such failure or refusal, does not constitute willful misconduct, unless employee is apprised of such statute and intentionally violates the same and sustains injury as the proximate cause thereof. The mere exercise of the will in doing the act is not sufficient; there must be determination to do the act, though known to be forbidden by law. There cannot be a “willful” failure to perform an unknown duty and employer cannot rely upon defense contained in this section unless it be shown the statute violated had been in some way brought to employee’s attention or he otherwise knew of it. King v. Empire Collieries Co., 148 Va. 585 , 139 S.E. 478 , 1927 Va. LEXIS 257 (1927).

Compensation benefits will be denied where there is a willful failure to perform a duty required by statute only if the violation was the proximate cause of the injury. Carter v. American Cleaning Services, 67 O.I.C. 209 (1988).

Failure to follow speed limit resulted in accident and constituted willful misconduct. Bennett v. F. Richard Wilton, Jr., Inc., 59 O.I.C. 19 (1980).

The evidence failed to establish that the employee willfully violated § 46.2-322 C requiring a report of his seizure disorder condition when obtaining a driver’s license. The record failed to establish that the claimant’s seizure disorder caused the motor vehicular accident. Derting v. Scott County Dept. of Social Services, 69 O.I.C. 162 (1990).

The claimant, a commercial tractor trailer driver, was tested by police and found to have a blood alcohol content of .02, because of which he was convicted for a traffic infraction of driving a commercial motor vehicle with any amount of alcohol in the blood, in violation of Va. Code Ann. § 46.2-341.31 . The Commission reversed the finding that this was such a violation of both state law and the employer’s policy that the claimant’s injuries did not arise out of the employment because the claimant was prohibited and unauthorized to drive in that condition. The Commission instead held that the evidence was insufficient to establish that the accident was caused by intoxication, that the alcohol ingestion per se was the proximate cause of the motor vehicle accident, or that the claimant’s violation of the employer’s policy caused the accident. Thompson v. Petroleum Marketers, Inc., 78 O.W.C. 109 (1999).

The evidence failed to establish that the employee purposely violated a safety rule requiring the use of a seat belt. While the employee may have been negligent, his infrequent operation of the emergency vehicle and the necessity for a prompt response rather than an intentional violation of a safety rule caused him to fail to secure his seat belt. In addition, the evidence failed to establish that the failure to use the seat belt was the cause of the subsequent motor vehicle accident and the employee’s injuries. Custer v. City of Newport News, 70 O.I.C. 199 (1991).

An employee is not barred from receiving workers’ compensation benefits despite his contributing negligence when the injury is a result of a violation of a statute such as the Occupational Safety and Health Act that is designed to benefit a class of employees of which he is a member. Wyle v. Professional Services Industries, 12 Va. App. 684, 406 S.E.2d 410, 7 Va. Law Rep. 2961, 1991 Va. App. LEXIS 142 (1991).

Injury to Another:

For additional cases on assault and horseplay see notes to § 65.2-101 .

Compensation is denied a worker injured by assault where worker himself was the aggressor. This provision of this section will be applied where the injured employee provoked assault upon himself. Angolia v. Sweetman & Hall, Inc., 35 O.I.C. 373 (1953); Gates v. Mathieson Alkali Works, 11 O.I.C. 206 (1929).

Compensation denied where the claimant was the aggressor and her injuries grew out of her attempt to injure co-worker. Claimant may still have a cause of action at law against one who injured her. Meekins v. Saga Food Service, Inc., 53 O.I.C. 200 (1971).

Where claimant was grabbed by a larger and stronger co-employee and was spun in the air against his will, he was not a willing participant in horseplay and the defense of willful misconduct must fail. Seabright v. Fairfax County Fire & Rescue Service, 60 O.I.C. 382 (1981).

Where the evidence shows that the claimant was the victim of an assault from a coworker, and was not a willing participant in a fight, but only tried to cover his face to protect himself from his assailant, he does not violate an employer’s rule against fighting. Butcher v. Abex Friction Products, 77 O.W.C. 279 (1998).

A single derogatory remark uttered by the claimant as he turned to walk away, after a number of derogatory and profane remarks uttered by a coworker, is not a sufficient or reasonably expected provocation for an assault by that coworker, so as to constitute a violation of the employer’s rule against fighting. Butcher v. Abex Friction Products, 77 O.W.C. 279 (1998).

Where claimant is injured while engaged in horseplay condoned by the employer, the injury arose out of the employment. Jackness v. National Automobile Dealers Association, 60 O.I.C. 224 (1981).

I.Legislative Intent.

Editor’s note.

Some of the cases annotated below were decided under former § 65.1-40 or prior law.

This section should be interpreted in the light of the purpose of the Act as a whole and its other provisions. Griffith v. Raven Red Ash Coal Co., 179 Va. 790 , 20 S.E.2d 530, 1942 Va. LEXIS 275 (1942).

The purpose of the Virginia statute as interpreted by its highest court is to limit the recovery of all persons engaged in the business under consideration to compensation under the Act, and to deny an injured person the right of recovery against any other person unless he be a stranger to the business. Doane v. E.I. DuPont de Nemours & Co., 209 F.2d 921, 1954 U.S. App. LEXIS 3683 (4th Cir. 1954); Rea v. Ford, 198 Va. 712 , 96 S.E.2d 92, 1957 Va. LEXIS 129 (1957); Bristow v. Safway Steel Prods., 327 F.2d 608, 1964 U.S. App. LEXIS 6723 (4th Cir. 1964); Turnage v. Northern Va. Steel Corp., 336 F.2d 837, 1964 U.S. App. LEXIS 4303 (4th Cir. 1964); Jennings v. Franz Torwegge Mach. Works, 347 F. Supp. 1288, 1972 U.S. Dist. LEXIS 12098 (W.D. Va. 1972).

Act defines relations between employer and employee. —

The provisions of this section, construed with the entire Workmen’s (now Workers’) Compensation Act, define the relations existing between an employee and an employer. The relations of an employee to other parties are not mentioned. Noblin v. Randolph Corp., 180 Va. 345 , 23 S.E.2d 209, 1942 Va. LEXIS 176 (1942).

And not relations between employee and stranger. —

It was the legislative intent to make the Act exclusive in the industrial field so that, in the event of an industrial accident, the rights of all those engaged in the business would be governed solely thereby. The remedies afforded the employee under the Act are exclusive of all his former remedies within the field of the particular business, but the Act does not extend to accidents caused by strangers to the business. If the employee is performing the duties of his employer and is injured by a stranger to the business, the compensation prescribed by the Act is available to him, but that does not relieve the stranger of his full liability for the loss, and if he is financially responsible, there is no reason to cast this loss as an expense upon the business. Feitig v. Chalkley, 185 Va. 96 , 38 S.E.2d 73, 1946 Va. LEXIS 183 (1946); Fauver v. Bell, 192 Va. 518 , 65 S.E.2d 575, 1951 Va. LEXIS 199 (1951).

Intent of the General Assembly in enacting uninsured motorist protection provisions. —

Where the employee of an employer which self-insured its motor vehicles was allowed to recover under the uninsured motorist statute, such application of the Workers’ Compensation Act, the uninsured motorist protection provision, § 38.2-2206 , and the motor vehicle code, § 46.2-368 , as they relate to an employee, was consistent with the language of the statutes and the intent of the General Assembly in enacting uninsured motorist protection provisions. William v. City of Newport News, 240 Va. 425 , 397 S.E.2d 813, 7 Va. Law Rep. 854, 1990 Va. LEXIS 129 (1990).

In binding partners to the provisions of this section by way of former § 65.1-4.2 (now § 65.2-101 ), the General Assembly considered that any insurance premiums paid by a partnership for individual coverage of its partners would ultimately be reflected in the cost of doing the various jobs on which the partners might be injured. Counts v. Stone Container Corp., 239 Va. 152 , 387 S.E.2d 481, 6 Va. Law Rep. 1109, 1990 Va. LEXIS 8 (1990).

An employee going to or from his or her place of employment is not performing a service arising out of and incidental to the employment. Ramey v. Bobbitt, 250 Va. 474 , 463 S.E.2d 437, 1995 Va. LEXIS 128 (1995).

II.Exclusivity.

Exclusive remedy. —

When an employee in Virginia is injured in the performance of her duties for her employer, the Virginia Workers’ Compensation Act provides her sole and exclusive remedy against the employer. McCotter v. Smithfield Packing Co., 849 F. Supp. 443, 1994 U.S. Dist. LEXIS 5164 (E.D. Va. 1994).

This section declares an employee’s right to compensation to be his exclusive remedy. Evans v. Newport News Shipbuilding & Dry Dock Co., 361 F.2d 364, 1966 U.S. App. LEXIS 6204 (4th Cir.), cert. denied, 385 U.S. 959, 87 S. Ct. 397, 17 L. Ed. 2d 304, 1966 U.S. LEXIS 202 (1966).

Once an owner is found to be a statutory employer, it is subject to all the mandates, duties, and rights as to its statutory employee mandated by the Virginia Workers’ Compensation Act, § 65.2-100 et seq., including the “exclusivity rule.” Jones v. Commonwealth, 267 Va. 218 , 591 S.E.2d 72, 2004 Va. LEXIS 22 (2004).

Truck driver’s personal injury claims against a warehouse owner and warehouse worker for injuries he received during the course of making a delivery to the warehouse were dismissed for lack of subject matter jurisdiction where the transportation of goods to the warehouse, including the unloading and storage procedures, was an essential part of the owner’s warehousing business, when the truck driver suffered his injury, he was engaged in the warehouse owner’s usual trade, business, or occupation, and therefore was within the scope of the Virginia Workers’ Compensation Act, and as a result, pursuant to the exclusivity provision of § 65.2-307 , his sole relief was under Virginia’s Workers’ Compensation Act. Glenn v. Lafon, 427 F. Supp. 2d 675, 2006 U.S. Dist. LEXIS 7843 (W.D. Va. 2006).

Plaintiff, who was struck by a car driven by a U.S. Navy service member in the scope of employment, had received benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C.S. § 901 et seq., and had also received benefits under the Virginia Workers’ Compensation Act (VWCA) that were applied to the LHWCA award under 33 U.S.C.S. § 903(e). Plaintiff therefore was barred under § 65.2-307 of the VWCA from further recovery from the United States as statutory employer and was barred pursuant to 28 U.S.C.S. § 2674 from recovering from the United States under the Federal Tort Claims Act. Wells v. United States, No. 2:06cv177, 2006 U.S. Dist. LEXIS 75255 (E.D. Va. Oct. 16, 2006).

A truck driver’s remedies against a statutory employer were limited to those exclusively provided under the Virginia Workers’ Compensation Act, § 65.2-100 et seq., regardless of the contractual employment relationship between the driver and the statutory employer. Meredith v. Honeywell Int'l, Inc., 245 Fed. Appx. 325, 2007 U.S. App. LEXIS 20099 (4th Cir. 2007).

Applicable law, properly construed, did not provide for a balancing test in the traditional sense, under which the relative strength of either side’s interests could potentially tip the balance in favor of or against application of general maritime law; instead, a court had to first determine whether the litigant properly asserted a substantive right that was recognized by federal general maritime law, and if the court found that the litigant had, in fact, asserted such a right, the court could give effect to otherwise applicable state law if, and only if, the state law in question did not operate to deprive the litigant of that right. In the instant case, the exclusivity provision would operate to preclude the employee’s maritime tort claim entirely, and because such a result would have been the quintessence of deprivation, the court could not allow § 65.2-307 to preclude the employee’s federal maritime tort claim. Moore v. Capitol Finishes, Inc., 699 F. Supp. 2d 772, 2010 U.S. Dist. LEXIS 27564 (E.D. Va. 2010).

Trial court erred in sustaining a shipyard’s plea in bar because a service member’s estate was unaffected by the exclusivity bar of § 65.2-307 where the member was serving on active duty with the United States Navy at the time of the member’s injury, and the Navy was not subject to the requirements of Virginia’s Workers’ Compensation Act, §§ 65.2-100 through 65.2-1310. Gibbs v. Newport News Shipbuilding & Drydock Co., 284 Va. 677 , 733 S.E.2d 648, 2012 Va. LEXIS 189 (2012).

Worker collapsed at work after the last blow to head, he died several days later, and it was undisputed that he died during work training, which was a condition of employment that exposed the worker to the hazard of blows to the head, and thus his death was properly construed as accidental; the circuit court did not err in holding that the exclusivity provision barred this action. Kohn v. Marquis, 288 Va. 142 , 762 S.E.2d 755, 2014 Va. LEXIS 117 (2014).

Where a North Carolina employee was injured while working in Virginia and received workers’ compensation benefits under North Carolina law, the exclusivity provision of the Virginia Workers’ Compensation Act barred the employee’s personal injury suit against a Virginia subcontractor because the injury occurred in Virginia and the subcontractor was a statutory co-employee under Virginia law; the Full Faith and Credit Clause did not require Virginia to defer to the law of North Carolina, the state that paid the employee benefits, in determining whether the suit was barred. Demetres v. East West Constr., Inc., 776 F.3d 271, 2015 U.S. App. LEXIS 629 (4th Cir. 2015).

In a case in which a deceased employee’s estate administrator appealed district court’s dismissal of the complaint, because the employee was brutally murdered, in a location she believed was unsecure, by an unfamiliar man with whom she was brought into contact through her capacity as an employee of an apartment complex, her injury arose out of her employment, and the estate administrator’s sole remedy lay under the Virginia Workers’ Compensation Act. Scott v. CG Bellkor, LLC, 711 Fed. Appx. 158, 2018 U.S. App. LEXIS 3335 (4th Cir. 2018).

Circuit court did not err in granting the employer’s plea in bar and in dismissing the personal representative’s complaint alleging that the employer, which operated a residential program for at-risk youth, had negligently failed to protect the employee who had been murdered by one of the residents because the Virginia Workers’ Compensation Act provided the exclusive remedy for the employee’s death. Lopez v. Intercept Youth Servs., Inc., 300 Va. 190 , 861 S.E.2d 392, 2021 Va. LEXIS 91 (2021).

Employee assured of recovery without having to defend against contributory negligence. —

Under the Workers’ Compensation Act the employee is assured of recovery without having to defend against allegations of contributory negligence, assumption of risk, or causation by fellow servants; the exclusive nature of the act, however, does not bar a suit for negligence in all circumstances. Rasnick v. Pittston Co., 237 Va. 658 , 379 S.E.2d 353, 5 Va. Law Rep. 2401, 1989 Va. LEXIS 67 (1989).

An employee who has accepted the provisions of the Workmen’s (now Workers’) Compensation Act is limited to the exclusive rights and remedies under the Act as against his employer. Snowden v. VEPCO, 432 F. Supp. 266, 1976 U.S. Dist. LEXIS 11989 (E.D. Va. 1976).

Employee may not sue employer for lost income from secondary employment. —

The statute barred an action by an employee against his employer to recover for lost income from unrelated secondary employment since (1) losses related to secondary employment may be accounted for under the Workers’ Compensation Act, and (2) even if secondary employment does not qualify for coverage under the act, an employee is still not permitted to bring a separate action in tort against his employer. Nelson v. United States Postal Serv., 189 F. Supp. 2d 450, 2002 U.S. Dist. LEXIS 3496 (W.D. Va. 2002).

But the Act is exclusive only so far as it covers the field of industrial accidents. Griffith v. Raven Red Ash Coal Co., 179 Va. 790 , 20 S.E.2d 530, 1942 Va. LEXIS 275 (1942).

The workers’ compensation act is exclusive in so far as it covers the field of industrial accidents, but no further; to the extent that the field is not touched by the statute, the legislature intended that the employee’s common-law remedies against his employer are to be preserved unimpaired. Adams v. Alliant Techsystems, Inc., 261 Va. 594 , 544 S.E.2d 354, 2001 Va. LEXIS 57 (2001).

The exclusivity of recovery is only as to an employee and his employer, and only his right to sue his employer for damages is barred by the acceptance of compensation under the act. Vandergrift v. United States, 500 F. Supp. 237, 1979 U.S. Dist. LEXIS 8325 (E.D. Va. 1979), aff'd, 634 F.2d 628 (4th Cir. 1980).

Exclusivity provisions did not void expressed indemnification agreement between an employer and a third party, as enforcement of the agreement merely enforced the loss distribution agreed to by them, and that loss distribution did not affect either the payment of workers’ compensation to an injured employee or the policy of limiting an employer’s liability. Safeway, Inc. v. DPI Midatlantic, Inc., 270 Va. 285 , 619 S.E.2d 76, 2005 Va. LEXIS 74 (2005).

Under this section, the exclusive remedy is a proceeding in the Industrial (now Workers’ Compensation) Commission, if there is an employment relation, as defined in the statutes between the parties. Walker v. United States Gypsum Co., 270 F.2d 857, 1959 U.S. App. LEXIS 5062 (4th Cir. 1959), cert. denied, 363 U.S. 805, 80 S. Ct. 1240, 4 L. Ed. 2d 1148, 1960 U.S. LEXIS 1084 (1960).

And Act is exclusive remedy for injury by fellow employee. —

An award under the Workmen’s (now Workers’) Compensation Act is the exclusive remedy where an employee subject to the Act is injured by a fellow employee. Phillips v. Brinkley, 194 Va. 62 , 72 S.E.2d 339, 1952 Va. LEXIS 207 (1952); Ferrell v. Beddow, 203 Va. 472 , 125 S.E.2d 196, 1962 Va. LEXIS 170 (1962).

Workers unloading barges were not statutory employees of barge terminal. —

Trial court erred in dismissing an injured worker’s personal injury action against another worker; a barge terminal at which the truck accident occured was not the statutory employer of the two workers pursuant to § 65.2-302 , as the terminal was not a party to any contract that required the injured worker or his employer to load or unload a barge, and so the trial court erred in finding workers’ compensation exclusivity under § 65.2-307 applied. Hudson v. Jarrett, 269 Va. 24 , 606 S.E.2d 827, 2005 Va. LEXIS 2 (2005).

Act as exclusive remedy for occupational disease even in case of intentional tort. —

Because occupational disease coverage is not expressly modified by a requirement that the disease be accidentally produced, an employee’s remedy against his employer for even an intentional tort would appear to be exclusively within the act. Joyce v. A.C. & S., Inc., 785 F.2d 1200, 1986 U.S. App. LEXIS 22853 (4th Cir. 1986).

Intentional tortious conduct of fellow employee. —

The Virginia Worker’s Compensation Act is the exclusive remedy for an employee who suffers an injury as a result of the intentional tortious conduct of a fellow employee. Guiden v. Southeastern Public Serv. Auth., 760 F. Supp. 1171, 1991 U.S. Dist. LEXIS 5226 (E.D. Va. 1991).

Employee’s tort claims for assault, battery, and false imprisonment were barred by the exclusivity provision under § 65.2-307 of Virginia’s Workers’ Compensation Act, since the Act covers injuries caused by an intentional assault upon an employee by a co-worker; the employee’s allegations, that her supervisor shoved her into a door, pushed her into a chair, and refused to allow her to leave after she asked to see the sexual harassment policies, met all three requirements for coverage under the Act. Miller v. Wash. Workplace, Inc., 298 F. Supp. 2d 364, 2004 U.S. Dist. LEXIS 5773 (E.D. Va. 2004).

Although a co-worker’s physical assault upon an employee arose “in the course” of their employment, because the assault was personal to the employee, it did not arise “out of” their employment; consequently, the employee did not plead into the bar of § 65.2-307 by alleging respondeat superior liability. Butler v. S. States Coop., Inc., 270 Va. 459 , 620 S.E.2d 768, 2005 Va. LEXIS 87 (2005).

Shared employee barred from suing owner for negligence. —

Driver who was employed by a subcontractor and fell off an owner’s ladder while tarping a load of power transformers was the owner’s statutory employee under subsection A of § 65.2-302 because the owner’s employees and the subcontractor’s employees shared responsibility for tarping and securing the transformers to a trailer; thus, § 65.2-307 barred the driver from suing the owner for negligence. Armendarez v. ABB, Inc., No. 7:07CV00557, 2008 U.S. Dist. LEXIS 82241 (W.D. Va. Oct. 16, 2008).

Exclusivity provisions did not bar contractual indemnity action. —

Exclusivity provisions of the Virginia State Workers’ Compensation Act or of the Longshore and Harbor Workers’ Compensation Act (LHWCA) did not bar a contractual indemnity action by a contractor against a subcontractor, when neither the contractor nor the subcontractor was the immediate employer of the harbor worker suing the contractor. Ward v. Norfolk Shipbuilding & Drydock Corp., 770 F. Supp. 1118, 1991 U.S. Dist. LEXIS 11370 (E.D. Va. 1991).

Employee’s Federal Tort Claims Act action was dismissed. —

State workers’ compensation benefits were the exclusive remedy of an employee of a subcontractor who was injured while working to provide meals at a Marine base since the Marine Corps was her statutory employer under state workers’ compensation law; her claim under the Federal Tort Claims Act (FTCA), 28 U.S.C.S. § 2671 et seq., was dismissed for lack of subject matter jurisdiction. Coulter v. United States, 256 F. Supp. 2d 484, 2003 U.S. Dist. LEXIS 6036 (E.D. Va. 2003), aff'd, 90 Fed. Appx. 60, 2004 U.S. App. LEXIS 5345 (4th Cir. 2004).

III.Availability of Common-Law Action.

An employer is immune from suit at common law by employees engaged in work which is part of his trade, business or occupation, in accordance with this section and former § 65.1-103 (now § 65.2-800 ). Turnage v. Northern Va. Steel Corp., 336 F.2d 837, 1964 U.S. App. LEXIS 4303 (4th Cir. 1964).

Under this section, an employee is precluded from maintaining a common-law action against his employer for an injury sustained in the course of employment when he and his employer have accepted the provisions of the Workmen’s (now Workers’) Compensation Act. Slusher v. Paramount Warrior, Inc., 336 F. Supp. 1381, 1971 U.S. Dist. LEXIS 10776 (W.D. Va. 1971).

And injured employee is granted compensation in lieu of action for damages. —

This section deprives the employee or his personal representative of a common-law right of action for damages against the employer in a particular class of cases, that is, where the injury or death is from an accident arising out of and in the course of the employment, because the Act gives to the employee or his dependents in lieu thereof the right to an award of compensation. Griffith v. Raven Red Ash Coal Co., 179 Va. 790 , 20 S.E.2d 530, 1942 Va. LEXIS 275 (1942).

Right to maintain common-law action continues unless expressly or impliedly curtailed. —

If the employer-employee relationship does not exist in fact, and is not created by the compensation statutes, then the compensation law is not applicable and does not control the rights and liabilities of the litigants inter se. If the right to maintain a common-law action would otherwise exist, it continues unless expressly or by necessary implication it is denied or curtailed by the Workmen’s (now Workers’) Compensation Act. Kramer v. Kramer, 199 Va. 409 , 100 S.E.2d 37, 1957 Va. LEXIS 205 (1957).

And employee’s common-law remedies are unimpaired where Act does not apply. —

To the extent that the field of industrial accidents is not touched by the statute, the legislature intended that the employee’s common-law remedies against his employer are to be preserved unimpaired. Griffith v. Raven Red Ash Coal Co., 179 Va. 790 , 20 S.E.2d 530, 1942 Va. LEXIS 275 (1942).

Where plaintiff could not have successfully maintained any claim for compensation under the Virginia Workmen’s (now Workers’) Compensation Act because he was not embraced therein and, not being within the Virginia Act and not having accepted an award thereunder, he is not prohibited by the Act nor by common law from maintaining his action for the injuries received against the negligent third person or persons responsible for them. Such plaintiff could not have obtained any of the benefits of the Virginia Act and he is not required to suffer and bear the prohibitions of it. The prohibition of this section of the Virginia Act does not apply to him. Soloman v. Call, 159 Va. 625 , 166 S.E. 467 , 1932 Va. LEXIS 222 (1932).

The common-law right of an employee to maintain an action against a party whose negligence caused his injuries still remains unless the statute expressly or by necessary inference curtails or denies it. Fauver v. Bell, 192 Va. 518 , 65 S.E.2d 575, 1951 Va. LEXIS 199 (1951).

If for any reason the statute is inapplicable to the case, the employee may have recourse to his common-law remedy. Perrin v. Brunswick Corp., 333 F. Supp. 221, 1971 U.S. Dist. LEXIS 10927 (W.D. Va. 1971).

As where injury, etc., does not arise in course of employment. —

The Act leaves unimpaired the common-law right of action for damages for the personal injury or death of the employee when such does not arise out of and in the course of the employment. Griffith v. Raven Red Ash Coal Co., 179 Va. 790 , 20 S.E.2d 530, 1942 Va. LEXIS 275 (1942).

Dismissal of a decedent’s estate administrator’s action, seeking recovery of damages for personal injury and resulting death after a co-worker assaulted the decedent by using a defibrillator on the decedent, resulting in death due to cardiac arrest and electrocution, was error, as the injury did not arise out of the employment, such that under §§ 65.2-101 and 65.2-307 , it was not within the exclusive remedy coverage of the Virginia Worker’s Compensation Act; the co-worker’s assault was purely personal on the decedent, and the employer’s workplace requirements had no causal connection with the risk of injury by assault. Hilton v. Martin, 275 Va. 176 , 654 S.E.2d 572, 2008 Va. LEXIS 18 (2008).

Or employer has failed to comply with Act. —

Where an employer failed to comply with the provisions of the Act, notwithstanding it was subject thereto, and the employee-claimant has been unsuccessful in collecting the award decreed him by the Commission, the employee-claimant is not barred from resorting to a civil action to recover damages from the employer. Delp v. Berry, 213 Va. 786 , 195 S.E.2d 877, 1973 Va. LEXIS 232 (1973).

Or where claim under Act is dismissed. —

The filing of a claim for compensation under the Workmen’s (now Workers’) Compensation Act, which is dismissed because not within the purview of the Act, does not estop the employee from thereafter pursuing his common-law remedy, if any, against the employer. Griffith v. Raven Red Ash Coal Co., 179 Va. 790 , 20 S.E.2d 530, 1942 Va. LEXIS 275 (1942).

Statutory employers are not “other parties.” —

Because statutory employers are not strangers to the employment and work of the owner, they are not “other parties” under the provisions of former § 65.1-41 (now § 65.2-309 ); therefore, even though they are independent contractors and are not the injured employees’ common-law employers, they are under the canopy of the act and entitled to the immediate employers’ statutory immunity from common-law actions provided by this section. Evans v. Hook, 239 Va. 127 , 387 S.E.2d 777, 6 Va. Law Rep. 1081, 1990 Va. LEXIS 22 (1990).

IV.Third Party Liability.

Employee may bring action at law against negligent third person. —

The Workmen’s (now Workers’) Compensation Act does not deny an injured employee the right to pursue his action at law against a negligent third party. The rights and remedies granted under this section are exclusive only as to an employee and his employer, and only his right to sue his employer for damages is barred by the acceptance of compensation under the Act. Fauver v. Bell, 192 Va. 518 , 65 S.E.2d 575, 1951 Va. LEXIS 199 (1951); Vandergrift v. United States, 500 F. Supp. 237, 1979 U.S. Dist. LEXIS 8325 (E.D. Va. 1979), aff'd, 634 F.2d 628 (4th Cir. 1980).

When the employee’s injuries arise from the conduct of a third party, an “other party” in the Workers’ Compensation Act’s terms, he or she may recover in a tort action against that party aside from receiving statutory compensation from the employer. Kast v. PPG Indus., Inc., 664 F. Supp. 237, 1987 U.S. Dist. LEXIS 6438 (W.D. Va. 1987).

If liability of a third party tort-feasor exists it is not taken away from the employee by the compensation laws which control his right against his employer. Veale v. Norfolk & W. Ry., 205 Va. 822 , 139 S.E.2d 797, 1965 Va. LEXIS 139 (1965).

An employee has no cause of action against another party for injuries received while working for his employer unless that other party is a stranger to the business and the work being done. Slusher v. Paramount Warrior, Inc., 336 F. Supp. 1381, 1971 U.S. Dist. LEXIS 10776 (W.D. Va. 1971).

“Another party.” —

“Another party” or “a stranger to the employment” is a person or entity not entitled to the benefit of the exclusivity provision of the act and against whom the injured employee or his employer who has a subrogation claim for benefits paid under the act has a common law claim arising out of the industrial accident. Pfeifer v. Krauss Constr. Co. of Va., Inc., 262 Va. 262 , 546 S.E.2d 717, 2001 Va. LEXIS 60 (2001).

Liability of independent contractor to employee of owner. —

In determining whether an injured employee may maintain an action against an independent contractor, the test is not whether the owner, by engaging the independent contractor to perform some part of his business, thereby engages in the business of the independent contractor but whether the independent contractor is performing work that is part of the trade, business or occupation of the owner. If he is, and in doing the work injures an employee of the owner, then the independent contractor, in the same fashion as any other employee of the owner, is not a third party against whom the injured employee’s right of action is preserved; but the employee so injured is limited to the compensation provided by the workers’ compensation law. Fowler v. International Cleaning Serv., Inc., 260 Va. 421 , 537 S.E.2d 312, 2000 Va. LEXIS 136 (2000).

And action against third person does not bar claim under Act. —

The mere institution of an action by an injured employee against a negligent third person is not a bar to a claim for compensation for the same injuries from the employer under the Workmen’s (now Workers’) Compensation Act. Drinkard v. Drinkard-Payne Corp., 181 Va. 253 , 24 S.E.2d 421, 1943 Va. LEXIS 173 (1943) (see Noblin v. Randolph Corp., 180 Va. 345 , 23 S.E.2d 209 (1942)).

If liability of a third party tort-feasor exists, it is not taken away from the employee by the compensation laws which control his right against his employer. Veale v. Norfolk & W. Ry., 205 Va. 822 , 139 S.E.2d 797, 1965 Va. LEXIS 139 (1965).

Defendant must be stranger to work in order for employee to maintain action. —

In order for an injured employee to maintain a common-law action against the person causing his injuries, the defendant must be a stranger to the trade, occupation, or business in which the employee was involved. Whalen v. Dean Steel Erection Co., 229 Va. 164 , 327 S.E.2d 102, 1985 Va. LEXIS 189 (1985).

The work in which a Ford employee’s employer was engaged was the particular business of manufacturing and selling motor vehicles and the defendants, who were contractors and subcontractors hired by Ford to construct a new body shop, were strangers to that business and, therefore, the employee’s common-law action for personal injuries against the defendants was not barred. Stone v. Door-Man Mfg. Co., 260 Va. 406 , 537 S.E.2d 305, 2000 Va. LEXIS 134 (2000).

Whether defendant was a stranger to work is factual question. —

The facts of each case must be analyzed to determine whether the defendant in a common-law action brought by an injured employee was, at the time of the employee’s injury, a stranger to the work in which the employee was engaged. If the defendant was “no stranger,” then he was not an “other party” within former § 65.1-41 (now § 65.2-309 ), and the common-law action against him would be barred by this section. Whalen v. Dean Steel Erection Co., 229 Va. 164 , 327 S.E.2d 102, 1985 Va. LEXIS 189 (1985).

Cleaning service not stranger to work. —

As appellees’ provision of cleaning and janitorial services was not part of an employer’s business of operating a call center, appellees were strangers to that business and were thus subject to an employee’s action for damages as “other parties” under subsection A of § 65.2-309 ; as they were not the employee’s co-employees, workers compensation exclusivity did not apply. Napper v. ABM Janitorial Servs. - Mid Atl., 284 Va. 55 , 726 S.E.2d 313, 2012 Va. LEXIS 130 (2012).

Liability of contractor’s supplier. —

Widow’s wrongful death action against a supplier of building materials was not barred by the workers’ compensation exclusivity provision, as the supplier’s mere delivery and stacking of drywall was not within the trade, business, or occupation of the contractor for whom the widow’s husband was working at the time of his accidental death. Giordano v. McBar Indus., 284 Va. 259 , 729 S.E.2d 130, 2012 Va. LEXIS 138 (2012).

Act does not limit right of third person to insure himself against liability. —

While the Workmen’s (now Workers’) Compensation Act excludes the employer’s liability to the employee or others entitled to recover “on account of” the employee’s injury or death, it does not exclude or limit the right of a third person to insure himself against liability for injury to the employee of a contractor either by a bond of indemnity, or by the contractor’s own agreement to save him harmless. Pearson v. National Trust for Historic Preservation, 145 F. Supp. 378, 1956 U.S. Dist. LEXIS 2609 (D.D.C. 1956).

V.Practice and Procedure.

Jurisdiction. —

If this section abrogates the common-law action, jurisdiction of the subject matter would be vested solely in the Industrial Commission of Virginia. Perrin v. Brunswick Corp., 333 F. Supp. 221, 1971 U.S. Dist. LEXIS 10927 (W.D. Va. 1971).

A proceeding under the Workmen’s (now Workers’) Compensation Act is not one to recover damage for a wrong, for the employer’s liability is not based upon tort. Perrin v. Brunswick Corp., 333 F. Supp. 221, 1971 U.S. Dist. LEXIS 10927 (W.D. Va. 1971).

Question of appropriate forum is preliminary and collateral. —

Whether the Compensation Commission or the common-law court is the exclusive and appropriate forum for the adjudication of the rights of the injured claimant is a preliminary question, related only collaterally to the substantive cause of action. Walker v. United States Gypsum Co., 270 F.2d 857, 1959 U.S. App. LEXIS 5062 (4th Cir. 1959), cert. denied, 363 U.S. 805, 80 S. Ct. 1240, 4 L. Ed. 2d 1148, 1960 U.S. LEXIS 1084 (1960).

And appropriate for summary judgment. —

Question of appropriate forum for adjudication of claimant’s rights is peculiarly appropriate for summary judgment when there is no genuinely disputed issue of fact. Walker v. United States Gypsum Co., 270 F.2d 857, 1959 U.S. App. LEXIS 5062 (4th Cir. 1959), cert. denied, 363 U.S. 805, 80 S. Ct. 1240, 4 L. Ed. 2d 1148, 1960 U.S. LEXIS 1084 (1960).

Plea involving employment status treated as an affirmative defense. —

See Walker v. United States Gypsum Co., 270 F.2d 857, 1959 U.S. App. LEXIS 5062 (4th Cir. 1959), cert. denied, 363 U.S. 805, 80 S. Ct. 1240, 4 L. Ed. 2d 1148, 1960 U.S. LEXIS 1084 (1960).

Defendant in action may not implead employer. —

Where an injured employee brought an action against the supplier and installer of the machine whereby he was injured, the defendant was not entitled to implead the employer as a third-party defendant on the theory of negligence on the part of the employer. Jennings v. Franz Torwegge Mach. Works, 347 F. Supp. 1288, 1972 U.S. Dist. LEXIS 12098 (W.D. Va. 1972).

Express indemnity clause not prohibited. —

The rationale behind workers’ compensation indicates that workers’ compensation precludes an action for contribution against an employer, but does not prevent that employer from agreeing to indemnify another party. The Virginia Workers’ Compensation Act does not invalidate an express indemnity clause. Bieger v. Consolidation Coal Co., 650 F. Supp. 1294, 1987 U.S. Dist. LEXIS 434 (W.D. Va. 1987).

Factual issues as to employment status submitted to jury in federal court. —

Though the courts of a state may have construed its Workmen’s (now Workers’) Compensation Act as a limitation upon the jurisdiction of its common-law courts so as to require the court, rather than a jury, to resolve questions of fact as well as of law in determining the jurisdictional fact of employment status, the Supreme Court of the United States has held that in the federal diversity jurisdiction factual issues involved in that determination must be submitted to a jury. Walker v. United States Gypsum Co., 270 F.2d 857, 1959 U.S. App. LEXIS 5062 (4th Cir. 1959), cert. denied, 363 U.S. 805, 80 S. Ct. 1240, 4 L. Ed. 2d 1148, 1960 U.S. LEXIS 1084 (1960).

Unless facts are not genuinely in dispute. —

If no issue of fact genuinely is in dispute, the question of employment status need not be submitted to a jury. Walker v. United States Gypsum Co., 270 F.2d 857, 1959 U.S. App. LEXIS 5062 (4th Cir. 1959), cert. denied, 363 U.S. 805, 80 S. Ct. 1240, 4 L. Ed. 2d 1148, 1960 U.S. LEXIS 1084 (1960); McCann v. Newport News Shipbuilding & Dry Dock Co., 177 F. Supp. 909, 1959 U.S. Dist. LEXIS 2739 (D. Va. 1959).

Decisions construing section as it was in 1920 are authoritative. —

This section and former §§ 65.1-41, 65.1-42 and 65.1-112 (now §§ 65.2-309 , 65.2-310 and 65.2-812 ) are now substantially the same as they were when enacted by the Acts of 1920, and, therefore, the decisions of the court construing these sections as they were in 1920 should be looked to for the proper construction of the sections as they are at present. Noblin v. Randolph Corp., 180 Va. 345 , 23 S.E.2d 209, 1942 Va. LEXIS 176 (1942); McGann v. Moss, 50 F. Supp. 573, 1943 U.S. Dist. LEXIS 2436 (D. Va. 1943).

Judgment at law against employer reversed on appeal does not bar right to compensation. —

The action of counsel for the employee in bringing an action against the employer at law and obtaining a judgment in favor of the employee, which was reversed on appeal, did not cut off the employee’s right to compensation, where, there being no negligent third party, no question of prejudice to the employer’s right of subrogation was involved. Chalkley v. Nolde Bros., 186 Va. 900 , 45 S.E.2d 297, 1947 Va. LEXIS 208 (1947).

The employee-claimant is entitled to only one full recovery and can collect only one time. But where he has effected no recovery, he has not received the satisfaction that can come only with payment. Delp v. Berry, 213 Va. 786 , 195 S.E.2d 877, 1973 Va. LEXIS 232 (1973).

Supplemental compensation award from another state. —

A state has no legitimate interest within the context of the federal system in preventing another state from granting a supplemental compensation award when that second state would have had the power to apply its workers’ compensation law in the first instance. The Full Faith and Credit Clause should not be construed to preclude successive workers’ compensation awards. Thomas v. Washington Gas Light Co., 448 U.S. 261, 100 S. Ct. 2647, 65 L. Ed. 2d 757, 1980 U.S. LEXIS 54 (1980).

Nonresidents working in Virginia have same remedies and restrictions as residents. —

Although the compensation statutes make no reference to the status of nonresidents working in Virginia at the time of an accident, Virginia intended to grant such remedies to, and impose such restrictions and limitations upon, such nonresidents to the same extent as though they were residents and employed by a Virginia employer. McCann v. Newport News Shipbuilding & Dry Dock Co., 177 F. Supp. 909, 1959 U.S. Dist. LEXIS 2739 (D. Va. 1959).

Res judicata not invoked. —

Where the denial of a compensation claim as to bronchitis is based upon a holding that the Workmen’s (now Workers’) Compensation Act does not touch the ailment, and where the issue of fault has not been determined, res judicata does not bar a subsequent negligence action. Perrin v. Brunswick Corp., 333 F. Supp. 221, 1971 U.S. Dist. LEXIS 10927 (W.D. Va. 1971).

Comity barred tort action where employer compensated out of state. —

Virginia would as a matter of comity treat an employer’s North Carolina compensation award as his exclusive remedy and hold his common-law tort action against his statutory employer as barred in Virginia. Kelly v. Guyon Gen. Piping, Inc., 882 F.2d 108, 1989 U.S. App. LEXIS 11971 (4th Cir. 1989).

VI.Contractors.

Denial of right to sue subcontractor not unconstitutional. —

The fact that the Workers’ Compensation Act deprived an employee of a general contractor injured on the job of the right to sue a subcontractor did not deny him due process, equal protection of the laws, or the right of trial by jury. Whalen v. Dean Steel Erection Co., 229 Va. 164 , 327 S.E.2d 102, 1985 Va. LEXIS 189 (1985).

Contractors, subcontractors, and all workers who are engaged in the trade, business, or occupation of the owner of a project are deemed to be statutory fellow employees. The remedy for any injury suffered by one of them as a result of the alleged negligence of another, while engaged in the trade, business, or occupation of the owner, is limited to that available under the Workers’ Compensation Act. Nichols v. VVKR, Inc., 241 Va. 516 , 403 S.E.2d 698, 7 Va. Law Rep. 2377, 1991 Va. LEXIS 55 (1991).

An independent contractor’s provision of cleaning and janitorial services to a retail furniture store was a part of the owner’s trade, business or occupation in that the combined efforts of the defendant and owner were designed to accomplish the owner’s goal of making its store clean, attractive, and safe and, by its participation in those efforts, the defendant was performing an essential part of the owner’s business and was not a stranger to the owner’s business who could be sued by one of the owner’s employees. Fowler v. International Cleaning Serv., Inc., 260 Va. 421 , 537 S.E.2d 312, 2000 Va. LEXIS 136 (2000).

The workers’ compensation exclusive remedy provision barred a personal injury suit by an employee of one subcontractor on a condominium construction project against another subcontractor for personal injuries sustained during the course of the employee’s job. Both the plaintiff’s employer, which had contracted to complete the exterior finish system of the project, and the defendant subcontractor, which had contracted to dig, install and test natural gas lines and to connect them to the condominium buildings, were engaged in the work of the owner and general contractor and, therefore, the defendant subcontractor was the plaintiff’s co-statutory employee and was immune from suit. Pfeifer v. Krauss Constr. Co. of Va., Inc., 262 Va. 262 , 546 S.E.2d 717, 2001 Va. LEXIS 60 (2001).

The effect of former § 65.1-30 (now § 65.2-302 ) is to render the general contractor a statutory employer of all employees engaged in the work. If the general contractor is deemed a statutory employer, he is treated as an employer within the meaning of this section and former § 65.1-103 (now § 65.2-800 ), and is therefore immune from a common-law action brought by an injured workman. Slusher v. Paramount Warrior, Inc., 336 F. Supp. 1381, 1971 U.S. Dist. LEXIS 10776 (W.D. Va. 1971).

Contractor immunity. —

On payment or provision for payment of compensation, a contractor, subcontractor or owner is immune to suit by the injured employee for damages. Bristow v. Safway Steel Prods., 327 F.2d 608, 1964 U.S. App. LEXIS 6723 (4th Cir. 1964).

Contractor that manufactures product to meet requirements of specific project of the owner may be engaged in the business of the owner so as to fall within the protection of the statute and be immune from common law liability. Evans v. B.F. Perkins Co., a Div. of Standex Intern Corp., 166 F.3d 642, 1999 U.S. App. LEXIS 1139 (4th Cir. 1999).

Where work employee performed was subcontracted fraction of owner’s main business concern, owner and general contractor qualified as employee’s statutory employers and, as such, were immune from employee’s Virginia common law action. Evans v. B.F. Perkins Co., a Div. of Standex Intern Corp., 166 F.3d 642, 1999 U.S. App. LEXIS 1139 (4th Cir. 1999).

Employee of one independent contractor can sue another independent contractor at common law for the negligence of such other independent contractor or his employee, both contractors being engaged in work which is to become a component part of the same structure. Kramer v. Kramer, 199 Va. 409 , 100 S.E.2d 37, 1957 Va. LEXIS 205 (1957); American Export Lines v. Revel, 266 F.2d 82, 1959 U.S. App. LEXIS 5107 (4th Cir. 1959).

Unless both contractors are engaged in trade, business or occupation of owner. —

An independent contractor was not subject to an action at law for damages for personal injuries to a second independent contractor’s employee, where both contractors were engaged in work which was part of the trade, business or occupation of the owner, for neither contractor was a stranger to the employment and the work, and they, as well as the owner, were under the canopy of the Workmen’s (now Workers’) Compensation Act. Anderson v. Thorington Constr. Co., 201 Va. 266 , 110 S.E.2d 396, 1959 Va. LEXIS 221 (1959).

Or if defendant was engaged in business of plaintiff’s employer. —

Whether defendant was an independent contractor or a fellow servant, plaintiff is limited to compensation under this Act if defendant was engaged in the business of plaintiff’s employer when plaintiff’s injuries were sustained. Lucas v. Biller, 204 Va. 309 , 130 S.E.2d 582, 1963 Va. LEXIS 149 (1963).

Action by employee of subcontractor against independent contractor. —

An action to recover for death by wrongful act because of injuries received by an employee of a subcontractor against an alleged third party wrongdoer, and independent contractor performing services on the same building project, is limited to a claim under the Virginia Workmen’s (now Workers’) Compensation Act. Beall v. Standard Elec. Co., 404 F.2d 881, 1968 U.S. App. LEXIS 4356 (4th Cir. 1968).

Injured employee has no right of action against subcontractor of his employer or subcontractor’s offending servants. Western Contracting Corp. v. Power Eng'g Co., 369 F.2d 933, 1966 U.S. App. LEXIS 4139 (4th Cir. 1966).

When employee of independent contractor precluded from suing owner. —

Liability would be imposed on the owner under the Workmen’s (now Workers’) Compensation Act only if the independent contractor was doing work which the owner generally performed. Therefore, an injured employee of an independent contractor would be precluded from suing the owner of a project because of this section if the independent contractor was performing work generally done by the owner. Barber v. Loews Theatres, Inc., 355 F. Supp. 136, 1972 U.S. Dist. LEXIS 10741 (W.D. Va. 1972).

Suit by contractor’s employee against subcontractor barred. —

Where the defendant in a suit brought by an injured employee of a general contractor was a subcontractor engaged in an essential part of the work which the general contractor had to do, so that defendant was no stranger to the work in which plaintiff’s employer was engaged, but was, on the contrary, performing an essential part of it, defendant was under the canopy of the Workers’ Compensation Act, and the trial court correctly ruled that the action was barred. Whalen v. Dean Steel Erection Co., 229 Va. 164 , 327 S.E.2d 102, 1985 Va. LEXIS 189 (1985).

Right of employee of one contractor to sue another contractor. —

This section and former § 65.1-41 (now § 65.2-309 ) bar common-law actions between fellow statutory employees, while allowing an injured employee of one contractor to proceed in an action at law against another contractor, where the two contractors are not engaged in a part of the trade, business, or occupation of the owner. Smith v. Horn, 232 Va. 302 , 351 S.E.2d 14, 3 Va. Law Rep. 1265, 1986 Va. LEXIS 257 (1986).

Suit against an uninsured subcontractor, a statutory co-employee, was barred. —

Contractor’s injured employee’s common-law action against an uninsured subcontractor and its employee was barred by the exclusivity provision of the Virginia Workers’ Compensation Act, § 65.2-307 , because the parties were statutory co-employees, and the employee had already fully recovered under the Act from his employer. David White Crane Serv. v. Howell, 282 Va. 323 , 714 S.E.2d 572, 2011 Va. LEXIS 184 (2011).

Employee of one contractor held barred from suing employee of another contractor. —

An injured employee of one independent contractor was barred from bringing a common-law tort action against an employee of another independent contractor engaged by the same owner, where the owner’s business was the mining, processing, and selling of coal and the contracted work performed by the independent contractors, mining and hauling coal to the owner’s plant for processing, was unquestionably a fraction of this main business concern. Smith v. Horn, 232 Va. 302 , 351 S.E.2d 14, 3 Va. Law Rep. 1265, 1986 Va. LEXIS 257 (1986).

A subcontractor engaged in an essential phase of the work being done under a general contract is considered not to be a stranger to the work of the general contractor and is not an “other party” under the Workers’ Compensation Act; thus, when an employee of a general contractor is injured by the alleged negligence of a subcontractor, the employee is limited to compensation under the Workers’ Compensation Act and may not bring an action for damages against the subcontractor. Kast v. PPG Indus., Inc., 664 F. Supp. 237, 1987 U.S. Dist. LEXIS 6438 (W.D. Va. 1987).

Subcontractor not a stranger to employer’s business. —

Virginia Worker’s Compensation Act statutory bar prevented the employee from recovering from the employer’s janitorial subcontractor; the facts established the subcontractor was not a stranger to the employer’s business. The essential nature of the subcontractor’s function was demonstrated by the fact the subcontractor’s work was required to be performed every regular business day; further, the fact the employer was responsible for paying the subcontractors associated with cleaning/trash pickup emphasized such parties’ overarching responsibility for properly maintaining the premises. McGowan v. ABM Janitorial Servs., Northeast, Inc., No. 2:10cv388, 2011 U.S. Dist. LEXIS 70621 (E.D. Va. June 29, 2011), aff'd, 464 Fed. Appx. 153, 2012 U.S. App. LEXIS 2266 (4th Cir. 2012).

Action by nonresident employee of nonresident contractor or subcontractor against owner or general contractor. —

Where an employee of a District of Columbia subcontractor was injured in Virginia, and recovered compensation from the subcontractor under the compensation law applicable in the District of Columbia, the subcontractor’s insurance carrier could not maintain, as assignee, a common-law action against the Virginia general contractor, since the Virginia Compensation Act, governing as the law of the place of injury, makes a general contractor the statutory employer of a subcontractor’s employee, and precludes an action by an employee against an employer subject to the Act. Home Indem. Co. v. Poladian, 270 F.2d 156, 1959 U.S. App. LEXIS 5070 (4th Cir. 1959).

The Virginia Workmen’s (now Workers’) Compensation Act applied to the nonresident employee of a nonresident contractor engaged in work which was part of the “trade, business or occupation” of an owner in Virginia, and the contractor’s employee became a statutory employee of the owner under former § 65.1-29 (now § 65.2-302 ) and thus could not maintain a common-law action against the owner, even though the employee had filed no claim under the Virginia Workmen’s (now Workers’) Compensation Act, and had filed a claim against the contractor under the New Jersey Act. McCann v. Newport News Shipbuilding & Dry Dock Co., 177 F. Supp. 909, 1959 U.S. Dist. LEXIS 2739 (D. Va. 1959).

As general contractor and owner of a construction project were not the statutory employers of a worker who was injured using a crane to deliver sheetrock to an upper floor of a building in the project, they were not covered by the exclusivity provisions of § 65.2-307 . Bosley v. Shepherd, 262 Va. 641 , 554 S.E.2d 77, 2001 Va. LEXIS 138 (2001).

Employee of bulk mail hauler for postal service. —

Injured employee of a contractual bulk mail hauler for the postal service was barred from pursuing any action against the postal service, as the postal service was a statutory employer and the bulk mail hauler was contracted to perform work that ordinarily would be part of the trade, business, or occupation of the postal service; hence, the employee’s exclusive remedy was under the state’s workers’ compensation act. Nelson v. United States Postal Serv., No. 3:00CV00059, 2001 U.S. Dist. LEXIS 23491 (W.D. Va. July 6, 2001), dismissed, 189 F. Supp. 2d 450, 2002 U.S. Dist. LEXIS 3496 (W.D. Va. 2002).

VII.Illustrative Cases.

A prison inmate, assumed to have been a state prisoner on work release at the time of his injuries in the employ of the defendant, did not establish state action and stated no claim of constitutional dimensions such as would make applicable 42 U.S.C. § 1983 and such as would invoke the jurisdiction of the federal district court, where the plaintiff alleged that payment of compensation benefits ceased without notice or explanation, and where the plaintiff contended that the defendant must respond in damages for failure of its foreman to report the alleged injury. Plaintiff’s remedy, if any, was before the Industrial Commission. Owens v. Swift Agric. & Chem. Corp., 477 F. Supp. 91, 1979 U.S. Dist. LEXIS 9887 (E.D. Va.), aff'd, 612 F.2d 1309 (4th Cir. 1979).

Conduct considered part of employer’s trade, business or occupation. —

Where plaintiff, a tire company employee and defendant, a truck company were engaged in joint effort in unloading, tires, and defendant was required to follow the instructions of plaintiff’s employees when unloading a tire shipment, conduct was considered part of plaintiff’s employer’s trade, business or occupation. As a result, plaintiff’s claims against trucking company were barred based on this section. Kilmer v. Ryder Integrated Logistics, Inc., 82 F. Supp. 2d 568, 1999 U.S. Dist. LEXIS 20752 (W.D. Va. 1999).

Where a worker who was employed by a wholesaler was arranging displays of flowers and assisting a flower retailer’s customers at the time she was injured, activities normally performed by the retailer’s employees, she was a statutory employee of the retailer at the time of the accident and her claim for negligence was barred by subsection A of § 65.2-307 . Burch v. Hechinger Co., 264 Va. 165 , 563 S.E.2d 745, 2002 Va. LEXIS 70 (2002).

Acceptance of benefits under Act does not preclude seaman from suing under Jones Act or Longshoremen’s and Harbor Workers’ Compensation Act. Biggs v. Norfolk Dredging Co., 360 F.2d 360, 1966 U.S. App. LEXIS 6654 (4th Cir. 1966).

Recovery under Federal Tort Claims Act precluded. —

The United States Air Force was a statutory employer of a worker killed in an explosion while working for a corporation which was under contact with the Air Force to develop rocket fuel, and thus, the exclusive remedy provision of former § 65.1-29 (now § 65.2-302 ) prevented any recovery from the government under the Federal Tort Claims Act. Pendley v. United States, 856 F.2d 699, 1988 U.S. App. LEXIS 12649 (4th Cir. 1988), cert. denied, 490 U.S. 1005, 109 S. Ct. 1640, 104 L. Ed. 2d 155, 1989 U.S. LEXIS 1700 (1989).

Where federal cause of action, Virginia act could not make employer immune from action. —

Injured worker who was receiving benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901-950, could not be barred by a state-law immunity available to “statutory employers” from asserting a federal maritime negligence action against a contractor for whom his immediate employer was performing work at the time of the injury. Ward v. Norfolk Shipbuilding & Drydock Corp., 770 F. Supp. 1118, 1991 U.S. Dist. LEXIS 11370 (E.D. Va. 1991).

Emotional distress action not barred. —

Employee’s motion for judgment against her former employer and fellow employees claiming intentional infliction of emotional distress was not barred by the exclusivity provisions of the Workers’ Compensation Act. The employee’s injury was not a compensable “injury by accident” as required by the act; the injury was gradually incurred and was not the result of an identifiable incident causing a mechanical or structural change in the body. Lichtman v. Knouf, 248 Va. 138 , 445 S.E.2d 114, 10 Va. Law Rep. 1554, 1994 Va. LEXIS 99 (1994).

The exclusivity provision of the statute did not bar a cause of action for emotional distress arising out of an eight month period during which the plaintiff’s employer failed to accommodate her disability, as the alleged injury did not occur “by accident.” Hager v. First Va. Banks, Inc., No. 7:01CV00053, 2002 U.S. Dist. LEXIS 412 (W.D. Va. Jan. 10, 2002).

Exacerbation of aneurysm due to negligent emergency medical treatment. —

An employee who suffered a ruptured aneurysm over her lunch break while participating in an aerobics class sponsored by the employer and who alleged that her injury was the aggravation, exacerbation and/or acceleration of the aneurysm due to her employer’s negligence in providing emergency medical care, suffered an injury by accident arising out of and in the course of her employment and, therefore, was barred from pursuing a personal injury claim against her employer. Combs v. VEPCO, 259 Va. 503 , 525 S.E.2d 278, 2000 Va. LEXIS 38 (2000).

Goosing action not barred. —

An employee’s claim against his employer, asserted in a common law action for injury resulting from goosing by a fellow employee, is not barred by the exclusivity provision contained in the Virginia Workers’ Compensation Act. Richmond Newspapers, Inc. v. Hazelwood, 249 Va. 369 , 457 S.E.2d 56, 1995 Va. LEXIS 47 (1995).

Employer’s actions committed with intent to injure employee as not accidental. —

Where defendant employer’s actions were committed with intent to injure employee, those actions did not constitute “accidents” under former § 65.1-7 (now § 65.2-101 ) and employee’s suit for intentional infliction of emotional distress was not barred by the exclusivity provision of the Virginia Workers’ Compensation Act. McGreevy v. Racal-Dana Instruments, Inc., 690 F. Supp. 468, 1988 U.S. Dist. LEXIS 6655 (E.D. Va. 1988).

Employee’s recovery not limited to worker’s compensation benefits where employer self-insures its motor vehicles. —

The employee of an employer which self-insures its motor vehicles is entitled to recovery under the uninsured motorist protection statute, and the employee’s recovery was not limited to worker’s compensation benefits by the exclusivity provision in this section. William v. City of Newport News, 240 Va. 425 , 397 S.E.2d 813, 7 Va. Law Rep. 854, 1990 Va. LEXIS 129 (1990).

Where plaintiff and defendant, both employed as carpenters on the same job, arrived at the job early in connection with the performance of certain preliminary tasks which had been assigned to them, they were properly found to be fellow employees, at the time, and the injury sustained by plaintiff because of the act of defendant arose out of and in the course of the employment. Therefore, plaintiff’s remedy was exclusively workmen’s (now workers’) compensation. Ferrell v. Beddow, 203 Va. 472 , 125 S.E.2d 196, 1962 Va. LEXIS 170 (1962).

Negligence of fellow employee. —

Where the accident sustained by plaintiff arose out of and in the course of his employment, and it allegedly was caused by the negligence of a fellow employee who at the time was acting within the course of his employment, plaintiff’s rights and remedies were exclusively those provided under the Virginia Workmen’s (now Workers’) Compensation Act. Brown v. Reed, 209 Va. 562 , 165 S.E.2d 394, 1969 Va. LEXIS 143 (1969).

Fact that employer may ultimately pay damages to third person is not a consideration. —

Where the employee of a contractor sued a scaffolding supplier for injuries received when a scaffold toppled, the fact that the lease between the contractor and the supplier contained a “save harmless” clause which might result ultimately in the contractor’s payment of damages to the supplier, was not a consideration in the right of the employee to sue the supplier despite previous payment of compensation to the employment by the contractor. Bristow v. Safway Steel Prods., 327 F.2d 608, 1964 U.S. App. LEXIS 6723 (4th Cir. 1964).

Where the employer paid a regular sum to defendant to transport plaintiff-employee to and from work, defendant was not a stranger to the business with respect to such transportation, and therefore plaintiff could not maintain a common-law action against defendant for an injury sustained incident thereto. Lucas v. Biller, 204 Va. 309 , 130 S.E.2d 582, 1963 Va. LEXIS 149 (1963).

Because parent company was not a “stranger to the business” of coal company where employee was killed in mine explosion, employee’s representative’s exclusive remedy was under the Workers’ Compensation Act and no common law action for negligence existed. Rasnick v. Pittston Co., 237 Va. 658 , 379 S.E.2d 353, 5 Va. Law Rep. 2401, 1989 Va. LEXIS 67 (1989).

Merely being in a parking lot utilized by employees is not enough to impose coverage of the Virginia Workers’ Compensation Act. Painter v. Simmons, 238 Va. 196 , 380 S.E.2d 663, 5 Va. Law Rep. 2915, 1989 Va. LEXIS 96 (1989).

In a negligence case, where plaintiff asserted she was injured when struck by a motor vehicle operated by a fellow employee in a parking lot adjacent to their place of employment while both were departing from work, the trial court correctly ruled that the plaintiff’s exclusive remedy was under the Workers’ Compensation Act and the trial court properly sustained the plea to the jurisdiction. Barnes v. Stokes, 233 Va. 249 , 355 S.E.2d 330, 3 Va. Law Rep. 2332, 1987 Va. LEXIS 192 (1987).

Common-law right to sue abrogated. —

A general partner’s statutory election to be covered as an employee by the Virginia Workers’ Compensation Act abrogated his common-law right to sue the owner of a project for injuries sustained while working on the project. Counts v. Stone Container Corp., 239 Va. 152 , 387 S.E.2d 481, 6 Va. Law Rep. 1109, 1990 Va. LEXIS 8 (1990).

Where the accident occurred at a place and time where employer expected both employees to be for employment purposes, a route of egress and ingress to and between the employer’s facilities and the employee who injured the other employee in an auto accident, clearly was using the lane for no purpose other than to commence his work for the day as anticipated by his employer, therefore the acts which gave rise to employee’s injury arose out of and in the course of his employment. Painter v. Simmons, 238 Va. 196 , 380 S.E.2d 663, 5 Va. Law Rep. 2915, 1989 Va. LEXIS 96 (1989).

Wrongful death claim barred. —

As a widow’s husband was an employee of a contractor and his death was caused by an accident that occurred in the course of and arose out of that employment, Virginia’s Workers’ Compensation Act applied and the contractor’s defense, that the widow was not a dependent, merely rendered her claim non-compensable; as the Act applied, its exclusivity provision barred her wrongful death claim against the contractor and its subcontractors. Giordano v. McBar Indus., 284 Va. 259 , 729 S.E.2d 130, 2012 Va. LEXIS 138 (2012).

Where a widow’s husband was killed in the course of his employment and she filed a wrongful death action against his employer and its subcontractors, the “employee,” as defined in § 65.2-101 , was the husband; as subsection A of § 65.2-307 precludes “all other rights and remedies” available to the personal representative of an employee who is covered by Virginia’s Workers’ Compensation Act, the widow’s claim was barred. Giordano v. McBar Indus., 284 Va. 259 , 729 S.E.2d 130, 2012 Va. LEXIS 138 (2012).

Had a widow’s husband survived his work-related accident, he could not have sued his employer or its subcontractors due to workers’ compensation exclusivity under subsection A of § 65.2-307 ; therefore, pursuant to subsection A of § 8.01-50 , the widow could not maintain a wrongful death action against them. Giordano v. McBar Indus., 284 Va. 259 , 729 S.E.2d 130, 2012 Va. LEXIS 138 (2012).

Wrongful death claim not barred. —

Decedent, an employee of a contractor hired by an owner to construct warehouses, was not engaged in the owner’s trade or business when he suffered fatal injuries in the course of employment, as his construction work was not part of the owner’s business, which was real estate development; thus, the owner was not his statutory employer under § 65.2-302 , and workers compensation exclusivity did not bar plaintiff’s wrongful death suit against the owner. Rodriguez v. Leesburg Bus. Park, LLC, 287 Va. 187 , 754 S.E.2d 275, 2014 Va. LEXIS 25 (2014).

CIRCUIT COURT OPINIONS

Exclusivity of remedy. —

Injured party was employed by a security firm to assist in controlling the crowd at an auto race when the injured party was hit by a piece of debris that fell from a hydraulic lift operated by a broadcasting company. Workers’ compensation was the exclusive remedy as to the racetrack under the subcontracted exception. There was no evidence that the racing league that sponsored the event was in the business of broadcasting, and because the broadcasting company was a stranger to the work of the racing league and not engaged in the racing league’s trade, business, or occupation, the broadcasting company was not a statutory employee of the racing league under the Virginia Workers’ Compensation Act, nor a fellow statutory employee with the injured party, and therefore those defendants were “other parties” as defined by § 65.2-309 and were subject to suit. Lincoln v. Int'l Speedway Corp., 59 Va. Cir. 133, 2002 Va. Cir. LEXIS 333 (Richmond May 29, 2002).

Because an employee’s injuries were compensable under the Virginia Workers’ Compensation Act, it provided the employee’s sole remedy against the employer and the dual capacity doctrine did not apply; therefore, §§ 65.2-307 and 65.2-605 barred a subsequent medical malpractice action against the employer for negligent treatment of the compensable injury. Budd v. Punyanitya, 69 Va. Cir. 148, 2005 Va. Cir. LEXIS 146 (Albemarle County Oct. 14, 2005).

Workers’ Compensation Act barred the common-law negligence action against a crane owner and operator brought by the employee of a framing contractor who was injured when he fell during the placement of roof trusses because, in furnishing the crane and operator to position the trusses, the crane owner was engaged in an essential part of the work that the framing contractor had agreed to do. Alfaro-Molina v. McGee's Crane Rental, 72 Va. Cir. 559, 2007 Va. Cir. LEXIS 144 (Loudoun County Mar. 13, 2007).

Defendants’ plea in bar under the exclusivity provisions of the Virginia Workers’ Compensation Act was sustained because, based on the relationship of the entities, the court was of the opinion that the dump truck driver that struck decedent was engaged in the same business or project of the owner, as was decedent; consequently, the truck driver was not “an other party” amenable to suit. Estate of Hill v. Smith, 74 Va. Cir. 341, 2007 Va. Cir. LEXIS 237 (Spotsylvania County Nov. 6, 2007).

Injured employee for a subcontractor on a construction project was barred by §§ 65.2-300 and 65.2-307 from bringing suit against the general contractor and two other subcontractors for the construction project because, under subsection B of § 65.2-302 , the general contractor was the statutory employer of the employee and the subcontractors were statutory co-employees of the employee. Aguilar v. Diaz, 88 Va. Cir. 44, 2014 Va. Cir. LEXIS 6 (Loudoun County Feb. 10, 2014).

Employer’s plea in bar to dismiss an employee’s negligent retention claims was sustained where the employee’s injuries occurred as a result of another employee shoving him into a cabinet, the incidents that led to the shove occurred while the employees were providing service to restaurant customers, and thus, the claims were barred by § 65.2-307 . Hayes v. Jones, 107 Va. Cir. 439, 2004 Va. Cir. LEXIS 419 (Essex County Aug. 20, 2004).

No private civil right of action. —

Employee’s personal injury claim against a co-worker and an underinsured motorist carrier was dismissed for lack of subject matter jurisdiction, because the employee’s exclusive remedy for an accident with a co-worker that occurred on the employee parking lot after the shift ended was under the Virginia Workers’ Compensation Act. The exclusivity provision was jurisidictional in nature and could be invoked at anytime during the proceeding, without regard to waiver or estoppel issues. Lilly v. Strawderman, 64 Va. Cir. 452, 2004 Va. Cir. LEXIS 162 (Rockingham County May 27, 2004).

Intentional tortious conduct of fellow employee. —

Employee’s claims against a general manager and an employer were not barred by the exclusivity provision because no conditions under which the employer required the employee’s work to be done contributed to the injury; the manager’s decision to take his frustration out on a fellow employee by assaulting her was entirely his own, and prior testimony that the manager chose to vent his frustration at the employee further demonstrated that the assault was directed at the employee personally. Morgan v. Brophy, 94 Va. Cir. 301, 2016 Va. Cir. LEXIS 147 (Chesapeake Sept. 27, 2016).

Alleged assault by a manager on an employee was directed at the employee as an employee in that the manager was expressing dissatisfaction with quality and work performance of employees. The manager’s actions were in furtherance of the employer’s business to the extent that the actions involved the manager’s management style in addressing what the manager perceived as the shortcomings of employees and the inability of the employee to perform a task as the manager directed. Morgan v. Brophy, 107 Va. Cir. 164, 2021 Va. Cir. LEXIS 93 (Chesapeake Jan. 28, 2021).

Injury from intentional bite by manager on employee’s arm met the requirements for exclusivity. —

Employee’s intentional tort claims were barred because the circumstances satisfied the exclusivity requirements of the Workers’ Compensation Act in that the injury was an “accident,” even though it was intentional (the employee’s manager bit her on the arm for not immediately helping her with a project), which arose out of the employment (the employee concretely framed the dispute as one created by, and arising out of, refusal to assist her supervisor), and it arose in the course of the employment (the injuries occurred at the store where she was employed, during working hours, at a time when she was fulfilling her duties as a cashier). Wood v. Lowe's Home Ctrs., Inc., 63 Va. Cir. 461, 2003 Va. Cir. LEXIS 247 (Roanoke Dec. 16, 2003).

Where work employee performed was subcontracted fraction of owner’s main business concern. —

Business’s plea in bar asserting that an injured contractor was its statutory employee at the time of his injury, and thus, he was limited to a claim for workers’ compensation benefits in his personal injury action, was overruled because the work being performed by his direct employer, installing and repairing fire detection and sprinkler systems, was not part of the normal trade, business, or occupation of the business, which primarily involved meat processing; moreover, any plumbing work on the waterlines performed by the business’s 50 to 60 person maintenance team was a de minimis part of the business’s 500-contractor work force. Fose v. Gwaltney of Smithfield, Ltd., 67 Va. Cir. 347, 2005 Va. Cir. LEXIS 47 (Portsmouth May 12, 2005).

Engaged in the trade, business, or occupation of the owner. —

Stevedore company’s personal injury claim against a marine terminal contractor and its employee was barred under § 65.2-307 where, at the time of the accident, both employees were engaged in discharging a vessel and thus, they were fellow statutory employees engaged in the trade, business, or occupation of the vessel owner. Miles v. Va. Int'l Terminals, Inc., 74 Va. Cir. 518, 2008 Va. Cir. LEXIS 58 (Norfolk Mar. 13, 2008).

Employee of one independent contractor can sue another independent contractor. —

Exclusive remedy provisions of the Virginia Workers’ Compensation Act as set forth in § 65.2-307 did not prevent, plaintiff, subcontractor 1’s employee, from suing defendant subcontractor 2 for injuries he received on the job site while painting a coal loader, because plaintiff was a stranger to the owner’s work and not a statutory employee of the owner for purposes of subsection A of § 65.2-302 . Applying the normal work test, the court held that the highly specialized and infrequently performed painting project was not a part of the owner’s trade, business, or occupation. Masterson v. Am. Heavy Indus., 84 Va. Cir. 432, 2012 Va. Cir. LEXIS 126 (Norfolk Apr. 12, 2012).

Maritime tort claims not barred. —

Defendants remained subject to the sailors’ general maritime negligence claims as: (1) the sailors were injured by an explosion caused by the subcontractor’s employees’ use of a highly flammable liquid to perform deck work; (2) ship repair was a maritime activity, and the sailors’ work aboard ship was maritime in nature and had a direct relation to navigation and commerce; (3) the application of § 65.2-307 would materially prejudice general maritime law; (4) under the Supremacy Clause approach, where a plaintiff asserted a substantive right recognized by federal general maritime law, the court could give effect to otherwise-applicable state law only if the state law did not deprive the litigant of that right; and (5) application of § 65.2-307 would preclude the sailors’ maritime tort claims altogether. Jones v. Tecnico Corp., 83 Va. Cir. 336, 2011 Va. Cir. LEXIS 232 (Norfolk Sept. 9, 2011).

Claim not barred. —

Truck driver who made a delivery to the loading dock of a company was an other party within the meaning of the Workers’ Compensation Act, so a negligence action against the truck driver and the trucking company that employed him that was brought by an employee of the company who was injured while he was unloading the truck was not barred under the Act’s exclusivity provision. Smith v. Kirk, 54 Va. Cir. 71, 2000 Va. Cir. LEXIS 545 (Richmond 2000).

Roanoke Regional Airport Commission was not the statutory employer of a driver of a transportation service since the founding act establishing the Commission granted it the authority to establish and operate an airport and air navigation facilities, and the power to grant the authority to operate a ground transporation service, but not the power to operate a ground transportation facility; since the Commission did not and could not subcontract with the driver’s employer to provide transportation services, the Commission was not the statutory employer of the driver, and the driver’s suit was not barred by the exclusivity rule of subsection A of § 65.2-307 . Cunningham v. Roanoke Reg'l Airport Comm'n, 2006 Va. Cir. LEXIS 273 (Roanoke County Dec. 28, 2006).

In a personal injury action by a volunteer against a garden society, the volunteer’s claim was not barred under § 65.2-307 because, on the day of her injury, the volunteer was a non-compensated employee of a charitable organization. While it appeared that the volunteer was compensated for becoming a volunteer, she was not compensated for her labor actually rendered on the day of her injury. Her decision to work pulling weeds on the day of her injury was purely gratuitous. Harris v. Norfolk Botanical Garden Soc'y, Inc., 79 Va. Cir. 258, 2009 Va. Cir. LEXIS 238 (Norfolk Sept. 11, 2009).

Because contractors did not have an employer in common with the decedent, they were not statutory co-employees, and none of the self-described statutory co-employees were employed by the decedent’s actual employer; thus, the contractors were “other parties,” and the exclusivity provision of the Virginia Workers’ Compensation Act did not apply to the estate’s wrongful death action. Standish Alexander v. St Tissue, LLC, 94 Va. Cir. 426, 2016 Va. Cir. LEXIS 192 (Richmond Oct. 25, 2016).

Holding company was not the decedent’s statutory employer because it manufactured and sold tissue paper, and converting a copy paper plant into a tissue paper plant was an essential preliminary step to allow the holding company to manufacture and sell tissue paper, but the business of the decedent’s employer was manufacturing, not converting plants; thus, the holding company was an “other party,” and the exclusivity provision did not apply in the estate’s wrongful death action. Standish Alexander v. St Tissue, LLC, 94 Va. Cir. 426, 2016 Va. Cir. LEXIS 192 (Richmond Oct. 25, 2016).

Truck driver’s action to recover damages for injuries he sustained while unfolding a tarp was not barred because pursuant to the normal work test, a company could not be designated as a statutory employer for purposes of the exclusivity provision of the Virginia Workers’ Compensation Act since tarping was not an activity in its normal course of business carried on by its employees; there was no evidence the company’s employees held a responsibility to assist contracted drivers in tarping loads. Pack v. Georgia-Pacific LLC, 95 Va. Cir. 351, 2017 Va. Cir. LEXIS 74 (Roanoke Apr. 6, 2017).

Automobile accident victim’s civil negligence action against a co-employee who was driving the automobile was not barred by the exclusivity provision of the Virginia Workers’ Compensation Act, § 65.2-100 et seq., because the exclusivity provision was not applicable as the automobile accident took place in Virginia and the victim, who was a Maryland resident employed by a Maryland corporation, received workers’ compensation under Maryland law due to the injuries that the victim received from the accident. Gerben v. Edwards, 106 Va. Cir. 286, 2020 Va. Cir. LEXIS 464 (Fairfax County Nov. 13, 2020).

Claim barred. —

Injured party’s cause of action against defendants, a garbage company and individuals, was barred under the exclusivity provision of the Virginia Workers’ Compensation Act, § 65.2-307 ; the city which employed the injured party was authorized by state and local statutes to provide garbage collection and disposal, to provide and operate waste management facilities, and to contract with other entities to provide these services, and defendants were statutory employees of the city, as they performed an essential part of the city’s garbage collection business, and were therefore not “other parties” pursuant to § 65.2-309 . Hanner v. Clark, 60 Va. Cir. 485, 2001 Va. Cir. LEXIS 510 (Richmond Nov. 8, 2001).

Where a subcontractor was, at the time of the injury, a statutory employee, he was barred from pursuing a common law claim by application of the Virginia Code. Ferreira v. Boeing Serv. Co., 60 Va. Cir. 237, 2002 Va. Cir. LEXIS 279 (Fairfax County Oct. 17, 2002).

Employee’s action against defendants for assault, false imprisonment, malicious prosecution, intentional infliction of emotional distress, negligence, and vicarious liability was barred by the exclusivity provision of the Virginia Workers’ Compensation Act, codified at § 65.2-307 , where the employee’s injuries occurred by accident, and arose “out of” and “in the course of” her employment; the employee sustained injuries when her coworker attempted to remove the employee from the employer’s premises after the employee was terminated during a meeting with her supervisor. Abney v. Wimer, 60 Va. Cir. 87, 2002 Va. Cir. LEXIS 388 (Norfolk June 3, 2002).

Employer’s plea in bar to employee’s complaint alleging claims for negligence, negligent misrepresentation, intentional tort, and fraudulent misrepresentation related to the employee’s sickness that occurred after the employer informed the employee the employer’s office building would be fumigated, was granted, as the employee’s claim for injury resulting from chemical exposure was an injury by accident that arose out of and in the course of her employment with the employer; accordingly, the employee’s sole and exclusive remedy was under the Virginia Workers’ Compensation Act, § 65.2-101 et seq., since that Act provided, in § 65.2-307 , that an employee’s sole and exclusive remedy under those circumstances was under the Act. Murhutta v. Planning Sys., 61 Va. Cir. 340, 2003 Va. Cir. LEXIS 53 (Fairfax County Mar. 19, 2003).

When an employee sued a physician for fraud, alleging that the physician misrepresented the employee’s medical history in a report to the Virginia Workers’ Compensation Commission, to the extent the employee sought to raise issues about the credibility of the physician’s report, those issues were properly before the Commission and the court would not try them. Taylor v. Robinson, 62 Va. Cir. 515, 2003 Va. Cir. LEXIS 310 (Danville Sept. 29, 2003).

Truck driver who worked for a company that was hired by a business to transport merchandise from a distribution center the business owned to its stores was a statutory employee of the business, and he was precluded by the Virginia Workers’ Compensation Act from suing the business to recover damages for injuries he sustained when he was struck by a tractor driven by one of the business’s employees while he was at the distribution center to pick up merchandise for transport. Leake v. Family Dollar Stores, Inc., 62 Va. Cir. 46, 2003 Va. Cir. LEXIS 317 (Warren County May 7, 2003).

Accident victim’s claim against a contracting elevator company that maintained city elevators was barred by the exclusive remedy provision of the Virginia Workers’ Compensation Act, § 65.2-100 et seq., as (1) the victim was a statutory employee of the city; (2) the mandate of the city included the improvement, repair, and maintenance of public buildings; (3) the work delegated by the city to the elevator contracting company, and performed by its employees, was part of the trade, business, or occupation of the city; and (4) the elevator contracting company was not an “other party” against whom the victim could maintain a suit in tort, under § 65.2-309 . Brooks v. Blueridge Gen., Inc., 67 Va. Cir. 274, 2005 Va. Cir. LEXIS 46 (Portsmouth May 9, 2005).

Employee’s claim brought under § 65.2-303 alleging his employer’s failure to provide him with medical attention following an eye injury at work, leading to an infection and permanent loss of vision, failed to state a claim upon which relief could be granted because the Workers’ Compensation Act applied exclusively. Ayers v. White, 77 Va. Cir. 302, 2008 Va. Cir. LEXIS 237 (Prince William County Dec. 1, 2008).

Exclusivity provision of the Virginia Workers’ Compensation Act barred a retail store employee’s claim against an independent contractor and a subcontractor who contracted to remove snow and ice from the premises of the retail store because they were not strangers to the work and as such were not the other parties contemplated by § 65.2-309 . Young v. Pleasant View Lawn & Home Care, Inc., 88 Va. Cir. 28, 2013 Va. Cir. LEXIS 141 (Waynesboro Nov. 6, 2013).

Employee who was injured in a workplace accident was barred from recovery in tort against a contractor to the employee’s employer, because the employee’s sole remedy was provided by the Virginia Workers Compensation Act, § 65.2-100 , as the contractor, a tow truck company, was not a stranger to the employer’s business of repairing vehicles, and, at the time of the accident, the contractor’s driver was performing the integral service of moving a vehicle from one location on the property of the employer to a bay for service. Pennell v. Hudson's Serv. Ctr., Inc., 95 Va. Cir. 202, 2017 Va. Cir. LEXIS 25 (Chesapeake Feb. 23, 2017).

Conduct considered part of employer’s trade, business or occupation. —

Where plaintiff, an employee of a store, slipped and fell on ice or snow while removing boxes from the store’s rear service entrance to a dumpster in a common area of the shopping center where the store was located, and she sued defendants, the shopping center’s owners and manager, for negligence arising from their failure to abide by a contractual duty under the store’s lease to remove snow and ice from common areas such as the rear service area, the exclusivity provision of the Virginia Workers’ Compensation Act barred the employee’s negligence suit because defendants’ work of removing snow and ice from the rear service area was essential to, and part of, the employer’s business. Lynskey v. Dan Assocs., 56 Va. Cir. 351, 2001 Va. Cir. LEXIS 470 (Danville Aug. 17, 2001).

Elevator repair and maintenance. —

Plea in bar by an elevator company, which contracted with an employer to maintain and repair the elevators at a building which the employer managed, on the basis of the exclusive remedy provision was denied because the employer, which paid workers’ compensation benefits to its employee who was injured when an elevator at the building malfunctioned, was not the elevator company’s statutory employer under § 65.2-302 . While the maintenance of the elevators in the building was clearly an indispensable activity of the businesses of both the employer and the owners of the building, the evidence was insufficient to persuade the court that elevator maintenance and repair was an activity that was normally carried on by employees of either the employer or the building owner. Guardian Realty Mgmt., Inc. v. Otis Elevator Co., 2006 Va. Cir. LEXIS 40 (Fairfax County Jan. 5, 2006).

NOTES FROM THE WORKERS’ COMPENSATION COMMISSION

General:

If the employer and employee come under the Act and the circumstances of accident are such that the employee may obtain an award for compensation, such remedy is the exclusive one against the employer. Bristow v. Cross, 210 Va. 718 , 173 S.E.2d 815, 1970 Va. LEXIS 191 (1970); Lucas v. Biller, 204 Va. 309 , 130 S.E.2d 582, 1963 Va. LEXIS 149 (1963); Ferrell v. Beddow, 203 Va. 472 , 125 S.E.2d 196, 1962 Va. LEXIS 170 (1962); Floyd v. Mitchell, 203 Va. 269 , 123 S.E.2d 369, 1962 Va. LEXIS 138 (1962); Williams v. Gresham Co., Inc., 201 Va. 457 , 111 S.E.2d 498, 1959 Va. LEXIS 249 (1959); Anderson v. Thorington Constr. Co., 201 Va. 266 , 110 S.E.2d 396, 1959 Va. LEXIS 221 (1959); Phillips v. Brinkley, 194 Va. 62 , 72 S.E.2d 339, 1952 Va. LEXIS 207 (1952); Chalkley v. Nolde Bros., 184 Va. 553 , 35 S.E.2d 827, 1945 Va. LEXIS 176 (1945); Garris v. Peoples Drug Stores, 162 Va. 428 , 174 S.E. 665 , 1934 Va. LEXIS 259 (1934); Humphries v. Boxley Bros. Co., 146 Va. 91 , 135 S.E. 890 , 1926 Va. LEXIS 314 (1926).

Where all parties were under the canopy of the Workers’ Compensation Act the Commission has exclusive jurisdiction to determine an employee’s claim as the Act has deprived all trial courts of jurisdiction over such matters. Bristow v. Cross, 210 Va. 718 , 173 S.E.2d 815, 1970 Va. LEXIS 191 (1970); Brown v. Reed, 209 Va. 562 , 165 S.E.2d 394, 1969 Va. LEXIS 143 (1969); Floyd v. Mitchell, 203 Va. 269 , 123 S.E.2d 369, 1962 Va. LEXIS 138 (1962).

Common law action by employee against employer and fellow servant are barred. Bristow v. Cross, 210 Va. 718 , 173 S.E.2d 815, 1970 Va. LEXIS 191 (1970); Lucas v. Biller, 204 Va. 309 , 130 S.E.2d 582, 1963 Va. LEXIS 149 (1963); Ferrell v. Beddow, 203 Va. 472 , 125 S.E.2d 196, 1962 Va. LEXIS 170 (1962).

For additional cases on jurisdiction see § 65.2-700 .

Concurrent Jurisdiction:

Note: These cases were decided before 2007 amendment to Code § 65.2-520 , which provides payment under Longshore and Harbor Workers’ Compensation Act may be deducted in full from amount to be paid as compensation for same injury under Virginia Act.

Since compensation payments made to an employee under a Maryland award exceeded the benefits provided for in this jurisdiction, no payment is due under the Virginia Award as award has been fully satisfied. Bliss v. Kirlin, 57 O.I.C. 42 (1976), (appeal denied).

An award in Virginia is not precluded merely because compensation has been awarded in another State. If a claim is compensable under Virginia law and the law of another State, concurrent jurisdiction exists. The employer will be granted a credit in Virginia for identical benefits paid under the law of another State. Whetzel v. Safeway Stores, Inc., 69 O.I.C. 22 (1990).

Where claimant is injured on the navigable waters of Virginia, there is concurrent jurisdiction between the Virginia and the Federal Compensation Act. If the claimant is entitled to benefits under the Virginia Act which exceeds those available under the Federal Act, State benefits may be awards. Blizzard v. Newport News Shipbuilding & Dry Dock Co., 67 O.I.C. 154 (1988).

An employer is entitled to file a claim in order to adjudicate its rights and obligations under the Virginia Workers’ Compensation Act. The employee’s receipt of benefits under the Longshore and Harbor Workers’ Act does not preclude the entry of an award under the Virginia Act. The employer will be granted credit for identical benefits paid under the Federal law. McKnight v. Virginia International Terminals, Inc., 69 O.I.C. 19 (1990).

Credit is determined on a dollar for dollar basis as opposed to offsetting the number of weeks for which benefits are paid under the Act. Virginia International Terminals, Inc. v. Moore, 22 Va. App. 396, 470 S.E.2d 574, 1996 Va. App. LEXIS 368 (1996), aff'd, 254 Va. 46 , 486 S.E.2d 528, 1997 Va. LEXIS 55 (1997).

A claimant who receives temporary total benefits pursuant to the Longshore and Harbor Workers’ Compensation Act may also be entitled to an award for permanent partial incapacity under Virginia Code § 65.1-56(19) (now § 65.2-503 ). Since the Federal Act does not provide for benefits for severely marked disfigurement, the claimant has not received a double recovery and the employer is not entitled to any credit for benefits paid under the Federal Act. Robinson v. Norfolk Shipbuilding & Dry Dock Corp., 66 O.I.C. 7 (1987).

The United States Constitution did not prevent an award for permanent partial benefits to an employee injured while repairing a completed vessel on navigational waters. Norfolk Shipbuilding and Dry Dock Corporation v. Lathey, 8 Va. App. 306, 380 S.E.2d 665, 5 Va. Law Rep. 2661, 1989 Va. App. LEXIS 67 (1989), cert. denied, 493 U.S. 1079, 110 S. Ct. 1133, 107 L. Ed. 2d 1038, 1990 U.S. LEXIS 857 (1990).

An award for permanent partial disability to the legs under the Longshore and Harbor Workers’ Act precludes an award for disfigurement under the Virginia Workers’ Compensation Act. Blizzard v. Newport News Shipbuilding & Dry Dock Co., 67 O.I.C. 154 (1988).

Statutory Employers:

A statutory employer, that is, an owner, contractor or subcontractor who could be held the employer of injured workman under § 65.1-29 to § 65.1-31 (now § 65.2-302 ) is entitled to the protection of this section, even where compensation may be had from the immediate employer. Sykes v. Stone & Webster Eng'r Corp., 186 Va. 116 , 41 S.E.2d 469, 1947 Va. LEXIS 135 (1947).

See Sykes v. Stone & Webster Eng. Co., supra , and Rea v. Ford , 198 Va. 712 , 96 S.E.2d 92 (1957), involving the right of employee of principal contractor to maintain an action at law against a subcontractor.

Where the engineers and the construction company were both independent contractors engaged in construction of the Turnpike, neither was a stranger to the occupation and the work, rather they were both (as was the Turnpike Authority) under the canopy of the Act, and claimant was a statutory fellow servant to employees of construction company. Willlams v. Gresham Co., Inc., 201 Va. 457 , 111 S.E.2d 498 (1959); Anderson v. Thorington Constr. Co., Inc., 201 Va. 266 , 110 S.E.2d 396 (1959); a similar case involving an independent contractor not a stranger to employer’s work. Floyd v. Mitchell, 203 Va. 269 , 123 S.E.2d 369, 1962 Va. LEXIS 138 (1962) (see also Shook Co. v. Barksdale, 206 Va. 45 , 141 S.E.2d 738 (1965); Kramer v. Kramer, 199 Va. 409 , 100 S.E.2d 37 (1957), where the work was not in the course of the trade, business or occupation of the owner).

A fellow servant does not come within the intent of the phrase “any other party” as used in § 65.1-41 (now § 65.2-309 ). He is also a person “conducting” his master’s business within the intent of § 65.1-103 (now § 65.2-800 ). The other party who may be sued at law by employee or employer must be a stranger to the employment. Bosher v. Jamerson, 207 Va. 539 , 151 S.E.2d 375, 1966 Va. LEXIS 256 (1966); Shook Co. v. Barksdale, 206 Va. 45 , 141 S.E.2d 738, 1965 Va. LEXIS 167 (1965); Lucas v. Biller, 204 Va. 309 , 130 S.E.2d 582, 1963 Va. LEXIS 149 (1963); Ferrell v. Beddow, 203 Va. 472 , 125 S.E.2d 196, 1962 Va. LEXIS 170 (1962); Floyd v. Mitchell, 203 Va. 269 , 123 S.E.2d 369, 1962 Va. LEXIS 138 (1962); Williams v. Gresham Co., Inc., 201 Va. 457 , 111 S.E.2d 498, 1959 Va. LEXIS 249 (1959); Anderson v. Thorington Constr. Co., 201 Va. 266 , 110 S.E.2d 396, 1959 Va. LEXIS 221 (1959); Phillips v. Brinkley, 194 Va. 62 , 72 S.E.2d 339, 1952 Va. LEXIS 207 (1952); Coker v. Gunter, 191 Va. 747 , 63 S.E.2d 15, 1951 Va. LEXIS 133 (1951); Feitig v. Chalkley, 185 Va. 96 , 38 S.E.2d 73, 1946 Va. LEXIS 183 (1946).

A subcontractor is not an “other party” from whom recovery could be had even after receipt of compensation from principal contractor. Rea v. Ford, 198 Va. 712 , 96 S.E.2d 92, 1957 Va. LEXIS 129 (1957).

When Section Does Not Apply:

The Compensation Act is exclusive insofar as it covers the field of industrial accidents only. A servant injured by the negligence of his master under circumstances not entitling him to compensation may sue his master at common law. Griffith v. Raven Red Ash Coal Co., 179 Va. 790 , 20 S.E.2d 530, 1942 Va. LEXIS 275 (1942).

Where the negligent injury cannot be regarded as an accident under the Act, the employer may be sued at law. Aistrop v. Blue Diamond Coal Co., 181 Va. 287 , 24 S.E.2d 546, 1943 Va. LEXIS 179 (1943).

The employer of agricultural workers who have not elected to come under the Act cannot invoke this section. Dey v. Logan, 175 Va. 68 , 7 S.E.2d 102, 1940 Va. LEXIS 147 (1940).

This section does not protect the employer from an action at law where his employee is engaged in a maritime employment. Colonna Shipyard v. Dunn, 151 Va. 740 , 145 S.E. 342 , 1928 Va. LEXIS 270 (1928), cert. denied, 279 U.S. 840, 49 S. Ct. 253, 73 L. Ed. 986, 1929 U.S. LEXIS 160 (1929).

If the employer-employee relationship does not exist in fact, and is not created by the compensation statutes, then the compensation law is not applicable and does not control the rights and liabilities of the litigants inter se. Employee of independent contractor may sue another independent contractor at law. Kramer v. Kramer, 199 Va. 409 , 100 S.E.2d 37, 1957 Va. LEXIS 205 (1957). (See this opinion also for discussion of cases relative to independent contractors, subcontractors, etc.).

A physician is not protected by this section from an action by an employee against him for alleged malpractice in treatment of a compensable injury, the physician being an independent contractor, not a fellow servant. Fauver v. Bell, 192 Va. 518 , 65 S.E.2d 575, 1951 Va. LEXIS 199 (1951).

Civil Actions:

Where the employee cannot be certain whether his remedy against his employer is under the Act or at common law, he may sue at law and file a claim before the Commission and prosecute one proceeding to a conclusion before the other. Chalkley v. Nolde Bros., 186 Va. 900 , 45 S.E.2d 297, 1947 Va. LEXIS 208 (1947).

If the action at law be heard first and the facts upon which the exclusiveness of the Act are in dispute, the question may be left to a jury. Blue Diamond Coal Co. v. Aistrop, 183 Va. 23 , 31 S.E.2d 297, 1944 Va. LEXIS 126 (1944).

Generally an unsuccessful result in the wrong forum will not bar additional action in the proper forum. See Chalkley v. Nolde Bros., 186 Va. 900 , 45 S.E.2d 297, 1947 Va. LEXIS 208 (1947); Griffith v. Raven Red Ash Coal Co., 179 Va. 790 , 20 S.E.2d 530, 1942 Va. LEXIS 275 (1942); Va. Used Auto Parts, Inc. v. Robertson, 212 Va. 100 , 181 S.E.2d 613 (1971); Delp v. Berry, 213 Va. 786 , 195 S.E.2d 877, 1973 Va. LEXIS 232 (1973).

Finding of fact made in a Commission hearing are conclusive of the same facts when the case is relitigated in a civil action. Sykes v. Stone & Webster Eng'r Corp., 186 Va. 116 , 41 S.E.2d 469, 1947 Va. LEXIS 135 (1947); Griffith v. Raven Red Ash Coal Co., 179 Va. 790 , 20 S.E.2d 530, 1942 Va. LEXIS 275 (1942).

Third Party Action:

The fact that the injured employee obtains a judgment at law against a third party tort-feasor before seeking compensation under the Act does not constitute a bar where the judgment remains unsatisfied. In order to deprive himself of the right to compensation he must so conduct his claim at law against the third party as to prejudice the employer’s or his compensation insurer’s right of subrogation given under § 65.1-41 (now § 65.2-309 ) and § 65.1-112 (now § 65.2-812 ). Noblin v. Randolph Corp., 180 Va. 345 , 23 S.E.2d 209, 1942 Va. LEXIS 176 (1942).

The fact that the employee has a third-party action pending is no bar to an application for compensation. Drinkard v. Drinkard-Payne Corp., 181 Va. 253 , 24 S.E.2d 421, 1943 Va. LEXIS 173 (1943).

Employee did not prejudice his employer’s rights where carrier consented to the settlement. Burgess v. Baroody Candy Co., 46 O.I.C. 38 (1964).

The employer cannot object to paying compensation upon the ground that employee unsuccessfully sued a fellow employee, since there never existed a negligent third party against whom employer could have asserted a subrogated interest. Chalkley v. Nolde Bros., 186 Va. 900 , 45 S.E.2d 297, 1947 Va. LEXIS 208 (1947).

An employer’s rights are not prejudiced by claimant’s compromise with his own insurer of claim against third party uninsured motorist since employer was subrogated to no rights against the uninsured motorist carrier. Under § 38.1-381 and § 65.1-41 (now § 65.2-309 ) the employer is subrogated to employee’s rights against negligent third party, but not under uninsured motorist coverage of a liability policy. Horne v. Superior Life Ins. Co., 203 Va. 282 , 123 S.E.2d 401, 1962 Va. LEXIS 140 (1962). [ Note: This case was prior to the July 1, 1995 amendment to § 38.2-2206 .] .

Section 65.1-40 (now § 65.2-307 ) and § 65.1-41 (now § 65.2-308 ) give the injured employee opportunity to obtain one full recovery. Noblin v. Randolph Corp., 180 Va. 345 , 23 S.E.2d 209 (1942); Burgess v. Cargill, Inc., 55 O.I.C. 53 (1973); Sheris v. Sheris Co., 212 Va. 325 , 188 S.E.2d 367 (1972), cert. denied by U.S. Supreme Court, November 2, 1972, 52 O.I.C. 232 (1970); Delp v. Berry, 213 Va. 786 , 195 S.E.2d 877 (1973); Dean v. Jefferson Mills, 58 O.I.C. 84 (1978).

Where injured worker settles his common law right of action against third party tort-feasor, he cannot thereafter obtain compensation benefits from his employer, since by his own voluntary act he has destroyed his employer’s statutory right of subrogation. Stone v. George W. Helme Co., 184 Va. 1051 , 37 S.E.2d 70, 1946 Va. LEXIS 168 (1946).

Where employee refuses to accept compromise offered by third party and then loses common law action, he still retains rights against employer for compensation, there being nothing in the Act requiring employee to accept or reject a compromise offer at his peril. Davis v. Central Nat’l Bank, 35 O.I.C. (hearing opinion), 9, 237 (review opinion) (1953).

In reversing the Court of Appeals, the Supreme Court set forth the method to be employed in calculating the amount of indemnity and the structure of the order suspending benefits when there has been a third party settlement. Henrico County School Board v. Bohle, 246 Va. 30 , 431 S.E.2d 924 (1993) (reversing 14 Va. App. 801, 421 S.E.2d 8 (1992)).