Lucas v. Federal Exp. Corp.

• Citation: 41 Va. App. 130,583 S.E.2d 56
• Decision Date: 08 July 2003
• Docket Number: Record No. 3093-02-2.
• Parties: Joanne E. LUCAS v. FEDERAL EXPRESS CORPORATION.
• Court: Virginia Court of Appeals

583 S.E.2d 56

41 Va. App. 130

Joanne E. LUCAS v. FEDERAL EXPRESS CORPORATION.

Record No. 3093-02-2.

Court of Appeals of Virginia, Richmond.

July 8, 2003.

Robert L. Flax (Flax & Stout, on briefs), Richmond, for appellant.

Dana L. Plunkett (Semmes, Bowen & Semmes, P.C., on brief), McLean, for appellee.

Present: FELTON and KELSEY, JJ., and WILLIS, Senior Judge.

FELTON, Judge.

Joanne Lucas appeals a decision of the Workers' Compensation Commission denying her benefits for injuries she sustained as a result of lightning striking her delivery truck during a package pickup. Lucas contends that (1) the conditions of her employment exposed her to a special risk from the forces of nature, thus entitling her to benefits, and (2) expert testimony was not needed to prove the risk she faced. We affirm the commission's decision.

I. BACKGROUND

On appeal, "[d]ecisions of the commission as to questions of fact, if supported by credible evidence, are conclusive and binding on this Court." Manassas Ice & Fuel Co. v. Farrar, 13 Va.App. 227, 229, 409 S.E.2d 824, 826 (1991) (citing Code § 65.1-98; McCaskey v. Patrick Henry Hosp., 225 Va. 413, 415, 304 S.E.2d 1, 2 (1983)). "The fact that contrary evidence may be found in the record is of no consequence if credible evidence supports the commission's finding." Id. (citing Russell Loungewear v. Gray, 2 Va.App. 90, 95, 341 S.E.2d 824, 826 (1986)). We view the evidence in the light most favorable to the party prevailing below. Creedle Sales Co. v. Edmonds, 24 Va.App. 24, 26, 480 S.E.2d 123, 124 (1997).

Cent. Va. Training Ctr. v. Cordle, 37 Va.App. 232, 234, 556 S.E.2d 64, 65-66 (2001) (footnote omitted).

A. INJURIES

Joanne Lucas was employed by Federal Express Corporation as a pickup carrier. Her employment required her to pick up packages that would be delivered the following day. At approximately 5:30 p.m. on June 6, 2001, Lucas returned to her delivery truck following a package pickup. She placed the package in the rear of the vehicle then returned to the driver's seat. Lucas placed her left hand on the metal part of the steering wheel and placed the key to the truck in the ignition.¹ It was then the delivery truck was struck by lightning.²

Lucas testified that when the truck was struck by lightning, it felt as if she was shot in the chest. She also experienced tingling in her left hand, then a sensation that felt like "a thousand wasps" stinging her all over her body. Lucas was transported by ambulance to the hospital. After the delivery truck was struck by lightning, she complained of a stiff neck, numb/tingling fingers, and swelling of a finger to three times its normal size. Days after the incident, Lucas noticed her feet turned bright yellow, then displayed black dots. The skin on her feet subsequently peeled.

As a result of the incident, Lucas has been diagnosed with post-traumatic stress disorder consisting of, among other things, persistent anxiety and difficulty sleeping. She has been unable to resume her employment.

B. PROCEDURAL HISTORY

Lucas filed a claim for benefits on September 26, 2001, alleging an injury by accident on June 6, 2001. A hearing was held before Deputy Commissioner Woolard, and an opinion was delivered on July 16, 2002. Deputy Commissioner Woolard found that Lucas failed to prove she sustained an injury by accident. Among other things, Deputy Commissioner Woolard noted that "an employer is not an insurer against natural disasters and acts of nature. There is no evidence that there was any heightened risk of injury that stemmed from her employment as a delivery driver."

Lucas appealed the decision to the full commission and, on review, the full commission affirmed the decision of Deputy Commissioner Woolard. The full commission found that Lucas did not sustain a compensable injury by accident because she "failed to prove that she suffered an injury which arose from a heightened risk of her employment...." Lucas appeals the decision of the full commission.

II. ANALYSIS

Lucas argues that she is entitled to compensation for her injuries because the conditions of her employment exposed her to a special risk from the forces of nature. Under the Virginia Workers' Compensation Act, an employee seeking compensation for an injury by accident must prove by a preponderance of the evidence that the injury arose "out of and in the course of the employment...." Code § 65.2-101.

The phrases arising "out of" and arising "in the course of" are separate and distinct. We have long held that they mean different things and that proof of both is essential to recovery under the Act.... The phrase arising "in the course of" refers to the time, place, and circumstances under which the accident occurred. The phrase arising "out of" refers to the origin or cause of the injury.

County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). There must be a link between the injury and the employment.

"In Virginia we have 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, 563, 186 S.E.2d 63, 64 (1972) (citing Immer & Co. v. Brosnahan, 207 Va. 720, 725, 152 S.E.2d 254, 257 (1967)). "The test ... is not that other persons are exposed to similar risks, but rather that the employment exposes the workman to the particular danger...." Brosnahan, 207 Va. at 725,152 S.E.2d at 257. Hazards to which the general public is equally exposed are non-compensable. See Grayson County Sch. Bd. v. Cornett, 39 Va.App. 279, 287, 572 S.E.2d 505, 509 (2002); Southside Va. Training Ctr. v. Ellis, 33 Va.App. 824, 829-30, 537 S.E.2d 35, 37 (2000).

Lucas sufficiently proved that she sustained an injury by accident in the course of her employment. It is uncontroverted that the injuries she sustained were a result of a lightning strike while she was inside her Federal Express truck following a package pickup. However, in order to receive compensation for her injuries, Lucas also has the burden of proving that the injuries she sustained arose out of her employment. Code § 65.2-101. In other words, she must prove that the employment activity in which she was engaged exposed her to the injurious risk to an extent to which people were not ordinarily exposed, and thus caused her injuries.

The general rule regarding natural disasters is as follows:

If an employee is injured by some natural force, such as [being] struck by lightning during a storm, ... the event does not in and of itself fasten liability on the employer. The theory is that death or any incapacity to work resulting from some natural force operating directly upon the victim without the intervention of any other agency or instrumentality, arises not out of the employment but is due solely to an act of God. However, when the nature of the employment, or some condition, or environment therein, brings into existence a special or peculiar risk to the disastrous forces of

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