Marketing Profiles, Inc. v. Hill

• Decision Date: 30 November 1993
• Docket Number: No. 2160-91-1,2160-91-1
• Citation: 437 S.E.2d 727,17 Va.App. 431
• Parties: MARKETING PROFILES, INC. and National Grange Mutual Insurance Company v. Kelvin Lewis HILL. Record
• Court: Virginia Court of Appeals

Page 727

437 S.E.2d 727

17 Va.App. 431

MARKETING PROFILES, INC. and National Grange Mutual Insurance Company v. Kelvin Lewis HILL.

Record No. 2160-91-1.

Court of Appeals of Virginia.

Nov. 30, 1993.

Michael D. Pace, Virginia Beach (Jeffrey F. Brooke; Huff, Poole, & Mahoney, P.C., on briefs), for appellants.

S. Vernon Priddy, III, Richmond (Ralph L. Whitt, Jr.; Sands, Anderson, Marks & Miller, on brief), for appellee.

Present: MOON, C.J., and BAKER, BARROW, BENTON, COLEMAN, KOONTZ, WILLIS, ELDER, BRAY and FITZPATRICK, JJ., en banc.

BENTON, Judge.

A panel of this Court reversed the Workers' Compensation Commission's award of benefits to Kelvin Lewis Hill and held that Hill failed to present sufficient evidence that his injuries arose out of his employment. Marketing Profiles, Inc. v. Hill, 15 Va.App. 567, 425 S.E.2d 546 (1993). The Court stayed the mandate of that decision and granted a rehearing en banc. Upon rehearing, we affirm the commission's award.

Viewed in the light most favorable to Hill, who prevailed before the commission, see Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.App. 503, 504, 339 S.E.2d 916, 916 (1986), the evidence at the evidentiary hearing proved that Hill was director of photography for Marketing Profiles, Inc., a portrait photography business located in Richmond. As a part of his duties as director of photography, Hill was required to travel at least once each week to other states to take photographs to be used in church directories. Hill used his personal automobile when travelling to his assignments, and he received an expense allowance based upon the number of miles that he travelled.

On July 14, 1990, Hill travelled in his automobile to Milford, Delaware, to take photographs at a church. When Hill completed his assignment, he telephoned a friend in Richmond and left a message that he was leaving Milford to return to Richmond. While Hill was driving his automobile on Route 301 in Maryland, "the shortest way" from Milford to Richmond, he was injured in an automobile accident. The hospital records report that Hill was "trapped in car after he was hit on passenger side" and that he suffered massive facial and dental injuries and trauma to the brain. Hill was unable to remember the period between three and four weeks before and after the accident.

The deputy commissioner concluded that Hill's inability to recall the details of the accident was "not a basis for finding that the evidence fails to establish a causal relationship between his employment and the accident." The deputy commissioner applied this Court's decision in Helmes v. Pinkerton's, Inc., 11 Va.App. 196, 397 S.E.2d 402 (1990), which was later reversed by the Supreme Court, Pinkerton's, Inc. v. Helmes, 242 Va. 378, 410 S.E.2d 646 (1991), and awarded Hill benefits. Although the commission affirmed the deputy commissioner's award, it based its decision not on Helmes but on its finding that "sufficient credible circumstantial evidence [existed] to allow an inference that the claimant suffered an injury by accident arising out of and in the course of his employment." A panel of this Court reversed the commission's decision.

"In order to recover compensation for a work-related injury under the Workers' Compensation Act, one must satisfy the requirements of Code [§ 65.2-101] which prescribe the nature of compensable injuries." Hill City Trucking, Inc. v. Christian, 238 Va. 735, 738, 385 S.E.2d 377, 379 (1989). " 'Injury ' means ... injury by accident arising out of and in the course of the employment." Code § 65.2-101. The concepts "arising out of" and "in the course of" employment are not synonymous and both conditions must be proved before compensation will be awarded. Bradshaw v. Aronovitch, 170 Va. 329, 335-36, 196 S.E. 684, 686 (1938). The burden rests upon claimant "to prove them by a preponderance of the evidence." Baggett Transp. Co. v. Dillon, 219 Va. 633, 637, 248 S.E.2d 819, 822 (1978). Whether Hill's injury was an "injury by accident" is not at issue on this appeal.

The evidence proved that Hill's injury occurred "in the course of the employment" because at the time the accident occurred Hill was on his employer's mission. Credible evidence in the record proved that Hill's injury occurred while he was returning to Richmond from the photography assignment. That assignment was an integral part of his employment duties. 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. The commission's findings of these factual issues are supported by credible evidence. See James v. Capitol Steel Constr. Co., 8 Va.App. 512, 517, 382 S.E.2d 487, 490 (1989).

Furthermore, any doubt whether Hill was in the course of his employment is dispelled by proof that Hill's employer reimbursed Hill for travel and mileage expenses related to Hill's use of his own automobile. The rule long has been established that "injuries sustained during the course of travel are compensable under the Workers' Compensation Act whenever the employer, for [the employee's] own convenience or because of the location of the workplace or places, agrees ... to reimburse the employee expenses incurred in the operation of [the employee's] own vehicle in the performance of [the employee's] duties." Provident Life & Accident Ins. Co. v. Barnard, 236 Va. 41, 47, 372 S.E.2d 369, 372-73 (1988). Thus, the commission's findings support the conclusion that Hill's injuries arose in the course of Hill's employment.

To satisfy the "arising out of" prong of the compensability test, Hill had to prove that "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." Bradshaw, 170 Va. at 335, 196 S.E. at 686. When an employee's presence on the streets is shown to be in the course of employment, "Virginia, following the majority rule, has adopted what is known as the 'actual risk test,' under which, in the words of Larson, 'it is immaterial even whether the degree of exposure is increased, if in fact the employment subjected the employee to the hazards of the street, whether continuously or infrequently.' " Immer & Co. v. Brosnahan, 207 Va. 720, 725, 152 S.E.2d 254, 257 (1967) (quoting 1 Arthur Larson, Workers' Compensation Law § 9.10 (1993)). Credible evidence proved that, at the time Hill was injured in the automobile accident, his travel on the highway directly linking Richmond and Milford was travel "which he was authorized and obligated to perform [;therefore,] the hazards of highway travel thus became necessary incidents of his employment." Immer, 207 Va. at 728, 152 S.E.2d at 259.

The evidence proved and the commission found that Hill's injuries were caused by an automobile accident. Hill was in his automobile when he was injured. He was in transit from Milford to Richmond on the most direct highway route. Nothing in the record establishes that Hill was engaged in activities unrelated to his employment or that he was on the road as a result of a personal mission. The commission found from the evidence that when Hill sustained his injury, he "was at a place where the employer could expect him to be." Credible evidence supports that finding. Consequently, Hill carried his "burden of supplying evidence from which the inference can be legitimately drawn that the injury arose out of ... employment." Sullivan v. Suffolk Peanut Co. 171 Va. 439, 443, 199 S.E. 504, 506 (1938). "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." Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va.App. 276, 279, 348 S.E.2d 876, 877 (1986). No evidence in this record supports a contrary finding. Hill's employer offered no evidence contradicting Hill's evidence that his automobile was hit on the passenger side while he was travelling on Route 301 in Maryland in the course of his employment. 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." 1 Arthur Larson, supra § 9.40.

The employer argues that the panel decision in this case properly applied Helmes to reverse the commission's decision. See Hill, 15 Va.App. at 571, 425 S.E.2d at 548. We disagree. The commission decision did not rely upon Helmes precisely because the principles addressed in Helmes are inapposite. Hill did not rely upon a presumption to prove that his injuries arose out of his employment. Cf. Helmes, 242 Va. at 380, 410 S.E.2d at 647-48. The evidence in this case proved that Hill was injured in a vehicular accident when his automobile was hit on the passenger side. The accident occurred while Hill was on a mission for his employer that required him to be in his automobile at the place and time when he was injured. Because Hill's employer sanctioned Hill's use of his automobile as a means of transportation to his assignments, "[t]he hazards of highway travel ... became necessary incidents of his employment." Immer, 207 Va. at 728, 152 S.E.2d at 259.

For these reasons, we affirm the commission's award.

Affirmed.

BRAY, Judge, joined by Judges BAKER and KOONTZ, dissenting.

Because the majority construes the "actual risk test" to support an award of workers' compensation benefits for all unexplained injuries suffered in the course of employment on a street or highway, we respectfully dissent.

In order to recover, Hill must prove, by a preponderance of the evidence, (1) an injury by accident, ¹ (2) arising out of and (3) in the course of his employment. Baggett Transp. Co. v. Dillon, 219 Va. 633, 636, 248 S.E.2d 819, 821 (1978); see Code § 65.2-101. Employer's challenge to the sufficiency of...