BOYS AND GIRLS CLUB OF VA v. Marshall

• Decision Date: 30 October 2001
• Docket Number: Record No. 0264-01-4.
• Court: Virginia Court of Appeals
• Parties: BOYS AND GIRLS CLUB OF VIRGINIA and Tig Premier Insurance Company v. Keith Fitzgerald MARSHALL, Decedent, and Davant Marshall, a Minor, by his Grandmother and Next Friend, Carolyn Marshall.

554 S.E.2d 104

37 Va. App. 83

BOYS AND GIRLS CLUB OF VIRGINIA and Tig Premier Insurance Company v. Keith Fitzgerald MARSHALL, Decedent, and Davant Marshall, a Minor, by his Grandmother and Next Friend, Carolyn Marshall.

Record No. 0264-01-4.

Court of Appeals of Virginia, Alexandria.

October 30, 2001.

Joseph F. Giordano, McLean (Thomas E. Dempsey, Hopewell; Semmes, Bowen & Semmes, on brief), for appellants.

No brief or argument for appellees.

Present: Judges BENTON, ANNUNZIATA and Senior Judge HODGES.

Opinion by Judge JAMES W. BENTON, Jr.

The sole issue raised by this appeal is whether the Workers' Compensation Commission erred in finding that Keith Fitzgerald Marshall's unexplained death arose in the course of his employment.¹ We affirm the commission's award.

I.

By well established principles, we view the evidence in the record in the light most favorable to the party prevailing before the commission. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.App. 503, 504, 339 S.E.2d 916, 916 (1986). So viewed, the evidence proved that the Boys and Girls Club of Virginia employed Marshall as its cultural and educational activities director. The employer's executive director testified that Marshall's duties included supervising children in the aquatic center and serving as the lifeguard.

On August 24, 1999, after Marshall supervised an open swim session for a group of children, he sent the children to the locker room to change. The executive director testified that this was the last swim session of the day and that the children were responsible for getting from the pool to the next area of the club on their own. After that session ended, Marshall was expected to "return to the front counter area and do general supervision of the children and interact with the parents as they came in" to get their children. Shortly after the children went to the locker room, however, Marshall was discovered unconscious in the pool.

The executive director testified that no one witnessed the incident. He also testified that, as a trained lifeguard, Marshall was "responsible for the safety and well-being of all [their] patrons." The executive director further testified that Marshall informed him some weeks prior to his death that he had been "trying to increase the length that he could swim underwater in the pool." He testified that although Marshall had responsibility for pool maintenance, endurance swimming was not one of Marshall's assigned duties.

The record contains a pre-hospital patient care report, a hospital triage report, a hospital emergency department report, and an autopsy report. These reports contain conflicting accounts of the discovery of Marshall's body in the pool. The pre-hospital report prepared by the emergency response team indicates: "lifeguard at Boys Club pool, swimming laps, underwater. Other personnel at pool states they left & came... 5 min later & found pt. floating in water." The triage report states: "pt. found by EMS in swimming pool unresponsive." The emergency department report dictated by a physician recites the following:

Paramedics report that the patient was attempting some type of endurance swim. Bystanders reported that he had swam three lengths of a 25 yard pool underwater and then suddenly "blacked out." Bystanders pulled him off the bottom of the pool, and CPR was begun. Paramedics arrived very quickly and found the patient in full cardiac arrest.

The autopsy report gives the cause of death as "drowning" and recites that Marshall "was found unresponsive in the swimming pool where he worked."

The deputy commissioner found that "no evidence was presented to explain how [Marshall] had ended up in the pool... [or] to substantiate [the] suggestion [he might have been engaging in some endurance swimming at the time]." He applied the unexplained death presumption and awarded benefits to Marshall's minor dependent. On review, the commission found that no evidence proved how long Marshall was in the pool after the children left and that Marshall's "brief swim" in the pool followed immediately upon the departure of the children. The commission also ruled that Marshall's death was unexplained and applied the "unexplained death" presumption.

In addition to approving the deputy commissioner's application of the presumption, the majority of the commission found that Marshall was at work and engaged in the activities of his employer shortly before his death, that Marshall was where he was expected to be, and that no evidence proved how much time passed between the children leaving the pool and the discovery of Marshall's body. The commission also found that the executive director knew Marshall had engaged in underwater endurance swims, that Marshall's employer had acquiesced in the activity, and that the endurance swimming activity incidentally benefited the employer. Thus, the commission affirmed the award of benefits to Marshall's minor dependent.

II.

Code § 65.2-101 requires a person who claims benefits under the Workers' Compensation Act to prove an "injury by accident arising out of and in the course of the employment."

[T]he language "in the course of" refers to the time, place, and circumstances under which the accident occurred. An accident occurs during the course of the employment if it takes place within the period of employment, at a place where the employee may reasonably be expected to be, and while the employee is reasonably fulfilling the duties of the employment or is doing something reasonably incidental to it.

Briley v. Farm Fresh, Inc., 240 Va. 194, 197, 396 S.E.2d 835, 836-37 (1990) (citation omitted). The Supreme Court long ago adopted the following rule:

[W]here an employee is found dead as the result of an accident at his place of work or near-by, 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.

Southern Motor Lines v. Alvis, 200 Va. 168, 171-72, 104 S.E.2d 735, 738 (1958).

Although one commissioner believed the evidence failed to prove Marshall was swimming when he drowned, the majority of the commission found that Marshall had taken a "brief swim." The commission unanimously found, however, that the Alvis presumption applied. The commission's findings include the following:

[Marshall] only shortly before his death was unquestionably engaged in the activities of the employer, i.e., supervising the swimming activities of children under his care. No evidence was presented regarding how much time passed after [Marshall] had dismissed the children to the locker room and the time at which [Marshall] was found unresponsive in the pool. Absent such evidence, ... [the commission] specifically ... infer[red] that the passage of time was only brief, and the brief swim that [Marshall] attempted did not take him out of the course of employment.

Credible evidence establishes that Marshall drowned while at work. He had released children from the pool to shower shortly before he drowned in the pool. The commission drew the inference from the circumstances and Marshall's duties as a lifeguard, that his activities in and around the pool before the children left the shower room related to what he was employed to do. Although the executive director testified that underwater endurance swimming was not one of Marshall's "duties," we cannot say the...