Estate of Enrique v. Information Technology Solutions, Record No. 2742-05-4 (Va. App. 10/17/2006)

Decision Date17 October 2006
Docket NumberRecord No. 2742-05-4.
CourtCourt of Appeals of Virginia

Paul J. Duggan for appellant.

Benjamin J. Trichilo (Trichilo, Bancroft, McGavin, Horvath & Judkins, on brief), for appellees.

Present: Judges Kelsey, McClanahan and Senior Judge Bumgardner.



The Estate of Alejandro Enrique Aguilar Ho (estate) appeals a decision of the Virginia Workers' Compensation Commission finding Ho's (decedent) death arose out of and in the course of his employment. The estate also contends the commission erred by failing to find that the application for a hearing filed by employer and its insurer was brought without reasonable grounds and in failing to award sanctions, including costs and attorney's fees against employer and its insurer. For the reasons that follow, we affirm the decision of the commission. The parties are fully conversant with the record, and this memorandum opinion recites only those facts and procedural history necessary to a disposition of the appeal.


A motor vehicle accident resulted in the death of Alejandro Enrique Aguilar Ho, a passenger in one of the vehicles driven by a co-employee, James W. Tate, II. The driver of the other vehicle was Juan Carlos Yanes Cambara. Cambara testified that Tate's vehicle initially approached him from behind at twice his speed in a lane to his right. He stated that he noticed Tate's vehicle changing lanes, so he changed lanes as well. According to Cambara, Tate subsequently pulled alongside of him on the shoulder, began yelling at him, and threw a water bottle that struck his vehicle. Cambara testified that Tate alternated speeds to keep him from changing lanes and that when he saw an opening to change lanes, he attempted to move into the lane ahead of Tate so that he could take his intended exit. Cambara stated that Tate then sped up in what he believed was an attempt to hit Cambara's vehicle. Tate then braked, swerved, and lost control of his vehicle, causing it to overturn. The decedent died as a result of his injuries.

Denise Mougey and Sharon Low were eyewitnesses to the accident. Mougey testified that she observed Tate's vehicle cross three lanes of traffic without using a turn signal while gaining speed. She stated that Tate's and Cambara's vehicles were involved in an "altercation," though there was never any contact with the vehicles. Mougey indicated that Tate's vehicle passed Cambara's vehicle, but then Cambara accelerated and pulled alongside Tate's vehicle. She observed the vehicles' close proximity, that both vehicles were weaving between the lanes of traffic, and that the drivers were exchanging "words" with one another. She stated that it appeared that Cambara's vehicle "got a little too close to [Tate's vehicle] and that's when . . . [Tate's vehicle] jerked to the right and it just ran off the road and flipped over." Low stated Tate's vehicle was driving alongside her vehicle while Cambara was behind her, then Tate reduced his speed so that he could drive alongside Cambara's vehicle. Low testified that the drivers were yelling and gesturing at each other as both cars drove alongside one another. Low explained that Cambara's vehicle attempted to change lanes between Tate's vehicle and her vehicle, and Tate's vehicle "rocked a little bit to the left and just flipped over."

At the time of the accident, both Tate and the decedent were employed by Information Technology Solutions (ITS or employer), a company owned and operated by William Mergler. ITS had entered into a subcontract with All Alarm, Inc. Mergler testified he teamed Tate with the decedent and told the decedent that he was required to ride with Tate if he wanted to keep his job. Mergler stated that Tate was required to drive the decedent to the All Alarm job site and was supposed to do so on the day of the accident. The decedent did not have a driver's license, did not own or have an automobile, and was unable to travel to job sites that were not accessible by public transportation. Mergler stated that because the All Alarm job sites were not accessible by public transportation, it was part of Tate's job to transport the decedent from the metro station, near the decedent's home, to work in the morning and from work to the metro station at the end of the workday. Tate explained that Mergler asked him to transport the decedent from the metro station to the All Alarm job site and that he began this practice in February 2003. At the time of the accident, Tate received a "one-dollar-per-hour" raise from ITS that was intended to compensate Tate for providing transportation to the decedent.1 See infra n.2.


On September 24, 2003, ITS and its insurer, Erie Insurance Exchange, filed an application with the Virginia Workers' Compensation Commission requesting the commission "to determine the compensability of the claim of Alejandra [sic] Ho, who was killed in an automobile accident on April 14, 2003, while traveling to a job site." The estate objected to this application by asserting that the accident did not arise out of the decedent's employment. Deputy Commissioner Woolard overruled the objections and denied the estate's motion to remove the matter from the evidentiary hearing docket. After the evidentiary hearings, Deputy Commissioner Woolard issued an opinion on May 13, 2004, wherein he found the decedent was an independent contractor; the decedent was not injured in the course of his employment at the time of his death; and there was "no good cause for assessing attorney's fees against the employer." Deputy Commissioner Woolard did not address whether the decedent was injured in an accident which arose out of his employment.

The employer and its insurer appealed the deputy commissioner's opinion to the commission. The estate requested a review of the opinion, assigning as error, among other things, the denial of attorney's fees and imposition of sanctions against the employer and insurer. In its January 26, 2005 review opinion, the commission ruled that the decedent was an employee rather than an independent contractor of the employer at the time of his death; the accident occurred in the course of the decedent's employment; and that an assessment of costs against employer was not appropriate. The commission then remanded the matter to a deputy commissioner to determine whether the injury arose out of the employment.

Pursuant to the remand, Deputy Commissioner Cummins heard the case on May 9, 2005, and issued an opinion on June 28, 2005, wherein she found that the decedent's injury, which resulted in his death, arose out of his employment. After the estate requested a review of Deputy Commissioner Cummins's opinion, the commission, by review opinion dated October 19, 2005, reaffirmed its prior decision that the decedent's death occurred in the course of his employment and affirmed Deputy Commissioner Cummins's conclusion that the decedent's injuries and death arose out of his employment. The estate appealed the commission's decision.


In reviewing the commission's decision, we are guided by well-settled principles. "[I]t is fundamental that a finding of fact made by the Commission is conclusive and binding upon this court on review." Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986); see also Code § 65.2-706. "The fact that there is contrary evidence in the record is of no consequence if there is credible evidence to support the commission's findings." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). "It lies within the commission's authority to determine the facts and the weight of the evidence, and its findings in that regard, when supported by credible evidence, will not be disturbed on appeal." Rose v. Red's Hitch & Trailer Servs., Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395 (1990) (citation omitted). "Where reasonable inferences may be drawn from the evidence in support of the commission's factual findings, they will not be disturbed by this Court on appeal." Hawks v. Henrico Co. Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988) (citation omitted).

We view the evidence and all reasonable inferences that may be drawn therefrom in the light most favorable to the employer, the prevailing party below. Stillwell v. Lewis Tree Serv., Inc., 47 Va. App. 471, 474, 624 S.E.2d 681, 682 (2006); Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72, 577 S.E.2d 538, 539 (2003). We do not judge the credibility of the witnesses or weigh the evidence. Artis v. Ottenberg's Bakers, Inc., 45 Va. App. 72, 83, 608 S.E.2d 512, 517 (2005).

A. "Arising out of and in the course of employment"

"Whether an accident arose out of and in the course of employment is a mixed question of law and fact and is properly reviewable on appeal." Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 190, 355 S.E.2d 347, 347 (1987). The claimant bears the burden of proving that the injury arose out of and in the course of the decedent's employment. See Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993).

As a general rule, "`an employee going to and from his or her place of employment is not engaged in any service growing out of and incidental to the employment' and, thus, an injury that occurs at such time does not arise out of and in the course of the employment." Asplundh Tree Expert Co. v. Pacific Employers Ins. Co., 269 Va. 399, 409, 611 S.E.2d 531, 536 (2005) (quoting Barnes v. Stokes, 233 Va. 249, 251, 355 S.E.2d 330, 331 (1987)). The Supreme Court has "recognized three exceptions to the general rule." LeWhite Constr. Co. v. Dunn, 211 Va. 279, 282, 176 S.E.2d 809, 812 (1970). The first exception,...

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