King v. DTH Contract Servs. Inc.

• Decision Date: 05 February 2019
• Docket Number: Record No. 1150-18-4
• Citation: 823 S.E.2d 6,69 Va.App. 703
• Parties: George KING v. DTH CONTRACT SERVICES INC. and American Select Insurance Company
• Court: Virginia Court of Appeals

69 Va.App. 703

823 S.E.2d 6

George KING

v.DTH CONTRACT SERVICES INC. and American Select Insurance Company

Record No. 1150-18-4

Court of Appeals of Virginia, Alexandria.

FEBRUARY 5, 2019

Richard M. Reed (The Reed Law Firm, P.L.L.C., on brief), Manassas, for appellant.

Robert M. McAdam (KPM Law, on brief), Roanoke, for appellees.

Present: Chief Judge Decker, Judges Humphreys and Huff

OPINION BY JUDGE GLEN A. HUFF

A former co-worker stabbed George King ("claimant") in the face, blinding him, while claimant was working alone as the overnight attendant at a rest area for DTH Contract Services, Inc. ("employer"). The assailant committed suicide later the same day, and his motives for the assault were never discovered. Claimant sought workers’ compensation benefits for the injuries he sustained in the assault. Those benefits were denied by a divided Workers’ Compensation Commission, reasoning that because claimant knew the assailant, the attack was not random, and since the motive for the attack was unknown, claimant failed to prove that the injury arose out of a risk of employment. He appeals that decision.

Claimant’s appeal turns on whether the assault, and thus his injuries, "arose out of" his employment as the rest area overnight attendant. The legal effect of the assailant’s motive on the "arising out of" question is central to resolving this appeal. Because the claimant did not prove that the assailant’s motive was employment related, instead of personal, and the claimant and assailant knew each other, the Commission held the assault did not arise out of claimant’s employment. Claimant argues that, when an assailant’s motive is unknown, he can still prove the assault arose out of his employment if the employment placed him at a greater risk of assaults than the general public. Thus he argues the Commission erred by refusing to consider whether his employment presented a risk of assault.

A claimant may suffer a random attack from someone he knows, and a random attack is compensable if the employment generates a risk of assault to the claimant. Thus, a claimant may prove an assault arose out of his employment if he can prove the job subjected him to greater risk of assault—even if he knew his assailant—as long as no evidence suggests the motivation for the assault was personal. Therefore, this Court reverses the Commission and remands this case for the Commission to consider claimant’s argument that his job placed him at greater risk of assault.¹

I. BACKGROUND

"On appeal, [this Court] view[s] the evidence in the light most favorable to the prevailing party before the [C]ommission." Portsmouth Sch. Bd. v. Harris, 58 Va. App. 556, 559, 712 S.E.2d 23 (2011) (quoting Central Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 42 Va. App. 264, 269, 590 S.E.2d 631 (2004) ). So viewed, the evidence is as follows.

Claimant began working at a rest area on Interstate 66 in 2013, initially working the evening shift. At the time of the assault, claimant was the overnight, 10:00 p.m. to 6:00 a.m., attendant for the rest area. As the overnight attendant, claimant was required to keep the restrooms clean, empty the trash cans, and generally keep an eye on the rest area, reporting any criminal activity to the police. He was the only employee on site overnight. He was to remain locked in the office when not cleaning or making rounds to check on the rest area.

He was also required to make hourly "safety check" phone calls. The purpose of these calls was to confirm that the rest area was staffed and to assure the "safety of the attendant." If the attendant did not make the phone call, he would be called. If he was not reached at the rest area office, his supervisor would be called. The supervisor would then call him on his cell, and if he did not reach the attendant, the supervisor would travel to the rest area and call the police if necessary.

In June 2014, Khalif Privott ("assailant") began working at the same rest area as an overnight attendant. Assailant repeatedly failed to make the required safety calls. Assailant quit in March 2015 without providing any notice, stating "I can’t do this anymore."

Claimant and assailant never worked the same shifts at the same rest area. They either worked different days, different sides of the interstate, or claimant worked the evening shift and assailant, working the overnight shift, would relieve claimant. Claimant testified he did not move to the overnight shift until after assailant quit.

In the early morning of July 13, 2016, over a year after assailant quit, he stabbed claimant in the eyes with a screwdriver while claimant was returning to the office after making his last check around the rest area. Claimant did not recognize assailant during the assault, and assailant did not speak a word during the assault. Assailant never communicated his motives to anyone and committed suicide later the same day. The parties stipulated assailant "had been using drugs and ‘was disturbed’ " before the assault.

Claimant was permanently blinded by the assault and sought workers’ compensation benefits. The employer defended against the claim by arguing that the assault did not arise out of the employment.

At the hearing, claimant attempted to establish that the risk of assault was elevated while working at the rest area. He claimed the conditions of his work—alone all night, locked in the office when not doing his rounds—augmented the risk of assault, and he attempted to show that crime at rest areas rendered them dangerous in several unique ways.

First, he introduced a list of all calls to the police from all the rest areas in the state (broken down by location) for a year between 2015 and 2016. He only provided calls to police, not confirmed criminal activity, and did not provide any comparative call data for locations other than rest areas. Moreover, his supervisor was unaware of any other violent crimes taking place at that rest area and did not recall any other attendants being crime victims.

Second, he introduced House Joint Resolution 96 from 1990 as evidence that rest areas are trouble spots for crime. It stated as follows:

[C]rimes committed at Virginia’s highway rest stops have recently begun to receive considerable attention; and [I]n the past twelve months, highway rest stops have been the scene of two homicides, ten assaults, twelve grand larcenies, nine petty larcenies, twenty-six drug violations, two cases of vandalism, twenty-four instances of prostitution, one kidnapping with forceable [sic] rape, forty-three cases of homosexual activity and recovery of five stolen automobiles; ....

Third, a state police officer testified that the state police had a practice of routinely checking the rest area. He testified the rest area had a history of problems with "illicit sexual behavior" and that on at least one occasion an undercover officer had been assaulted. Although not definitive, he stated it was possible that the risk of crime in rest areas was higher than in other areas open to the general public.

The deputy commissioner denied the claim. He held the evidence failed to prove that assailant was motivated by claimant’s employment. He also concluded the evidence did not show an increased risk of assault at the rest area. The deputy commissioner held the findings of the House Resolution were too old to be relevant and the recent call data only showed one violent incident in the rest area. He also noted that the evidence lacked comparative data for crimes in other areas.

Claimant sought review before the full Commission. The Commission held that because claimant knew assailant, the attack was not random. Thus, it held, the assault could only arise out of the employment if assailant had been motivated directly by claimant’s job. It then found assailant’s motive was unknown and therefore claimant failed to meet his burden. Commissioner Marshall concurred in the result. He disagreed that claimant’s prior acquaintance with assailant meant that only assailant’s motives were relevant to whether the assault arose of the employment. He would have agreed, however, with the deputy commissioner’s conclusion that claimant failed to prove the rest area exposed him to a greater danger of assault than the general public faced.

This appeal followed.

II. STANDARD OF REVIEW

"Whether an employee’s work-related injury arises out of his employment ‘involves a mixed question of law and fact, which [this Court] review[s] de novo on appeal.’ " Turf Care, Inc. v. Henson, 51 Va. App. 318, 324, 657 S.E.2d 787 (2008) (quoting Blaustein v. Mitre Corp., 36 Va. App. 344, 348, 550 S.E.2d 336 (2001) ). "Factual findings of the [C]ommission will not be disturbed on appeal, if based on credible evidence." Roberson v. Whetsell, 21 Va. App. 268, 271, 463 S.E.2d 681 (1995). "If there is evidence, or reasonable inferences can be drawn from the evidence, to support the Commission’s findings, they will not be disturbed on review, even though there is evidence in the record to support a contrary finding." Mktg. Profiles, Inc. v. Hill, 17 Va. App. 431, 435, 437 S.E.2d 727 (1993) (quoting Morris v. Badger Powhatan/Figgie Int’l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876 (1986) ).

Although this Court gives "deference, on appeal, to the [C]ommission’s construction of the Workers’ Compensation Act, [it is] ‘not bound by the [C]ommission’s legal analysis.’ " Peacock v. Browning Ferris, Inc., 38 Va. App. 241, 248, 563 S.E.2d 368 (2002) (quoting USAir, Inc. v. Joyce, 27 Va. App. 184, 189 n.1, 497 S.E.2d 904 (1998) ). Moreover, the Workers’ Compensation Act is "remedial legislation" that is "liberally construed in favor of the injured employee." E.I. du Pont de Nemours & Co. v. Eggleston, 264 Va. 13, 17, 563 S.E.2d 685 (2002).

III. ANALYSIS

The Commission held the assault did not "arise out of" claimant’s employment at the rest area—and denied compensation—because claimant did not prove the assailant was motivated in his attack by claimant’s position as an...