Norris v. Etec Mech. Corp.

• Decision Date: 26 December 2018
• Docket Number: Record No. 1054-18-2
• Citation: 69 Va.App. 591,822 S.E.2d 23
• Parties: George NORRIS, Jr. v. ETEC MECHANICAL CORPORATION and Commonwealth Contractors Group Self-Insurance
• Court: Virginia Court of Appeals

69 Va.App. 591

822 S.E.2d 23

George NORRIS, Jr.

v.ETEC MECHANICAL CORPORATION and Commonwealth Contractors Group Self-Insurance

Record No. 1054-18-2

Court of Appeals of Virginia, Richmond.

DECEMBER 26, 2018

William C. Carr, Jr. (Geoff McDonald & Associates, P.C., on brief), Richmond, for appellant.

Esther King (Emily Whitaker; McCandlish Holton, P.C., on brief), for appellees.

Present: Judges Humphreys, Beales and AtLee

OPINION BY JUDGE ROBERT J. HUMPHREYS

Appellant George Norris, Jr. ("Norris"), fell asleep behind the wheel of a company vehicle while driving home at the end of his work day, which resulted in an accident in which he was injured. He now appeals the June 25, 2018 decision of the Workers’ Compensation Commission (the "Commission") denying his claim for benefits, arguing that the Commission erred in holding that he did not sustain an injury arising out of the course of his employment.

I. BACKGROUND

On March 31, 2017, Norris was driving from a job site in Powhatan County to his residence when he "dozed off," which resulted in an accident. Norris sustained severe injuries that required hospitalization, surgeries, and an extensive stay at an in-patient rehabilitation facility. Norris subsequently filed a claim for benefits alleging injuries to his "right hip, leg, and knee and his left shoulder, hip, leg, femur, knee and ankle."

Norris also clarified that he sought medical benefits and temporary total disability at the subsequent hearing.

Disputing Norris’s claim, ETEC Mechanical Corporation and its insurer, Commonwealth Contractors Group Self-Insurance (collectively "employer"), argued that Norris’s injuries did not arise out of his employment.

On September 11, 2017, a hearing was held before a deputy commissioner.¹ The record reflects that Norris was driving on his street, approximately 200 yards from his home, when he fell asleep behind the wheel. Norris then ran off the road and crashed into a tree. Norris explained that he knew that he dozed off because it had happened to him in the past. According to Norris, "I get tired in the evenings, and sometimes moreso [sic] than others, ... I’ve dozed off before. It’s just fighting sleep. And I guess this time I didn’t wake up." Norris denied consuming drugs or alcohol before the accident, other than taking his blood pressure medication that morning, and denied any history of blacking out.

Norris also described the work that he performed for employer before the accident. Norris testified that he is a master electrician and typically works on commercial HVAC equipment. On the day of the accident, Norris was at a job location fixing leaks in air conditioning refrigeration lines. The job required Norris to go up and down a ladder throughout his eight-hour workday and move nitrogen bottles on two separate occasions. Notably, Norris characterized the work week leading up to the accident as "a normal week" that "wasn’t that bad, actually."

In an opinion dated October 16, 2017, the deputy commissioner denied Norris’s claim for benefits. The deputy commissioner’s opinion emphasized his finding that Norris did not sufficiently prove a causal connection between the conditions of his work, falling asleep behind the wheel, and the resulting accident and injury. Norris subsequently requested a review of the deputy commissioner’s opinion.

In an opinion dated June 25, 2018, the Commission agreed with the deputy commissioner’s finding that Norris failed to prove the requisite causal connection between his work conditions and falling asleep behind the wheel. The Commission’s opinion initially recognized that Norris was in the course of his employment when his accident occurred. As a result of that finding, the Commission focused upon the pivotal question in this case: whether Norris’s accident and his resulting injuries, which occurred because Norris fell asleep behind the wheel, arose out of his employment.

The Commission ultimately denied Norris’s claim due to an absence of "affirmative evidence establishing a causal connection between [Norris’s] employment and his untimely slumber[.]"² Importantly, the Commission emphasized that Norris failed to provide convincing evidence to explain why he was tired on the evening in question. "He agreed that it had been a normal work week and that he had not been on call for the employer." The Commission noted that while Norris’s work was physical in nature, "he did not refer to those tasks as more strenuous or difficult that [sic] normal, nor did he relate his fatigue or inability to stay awake to the activities he performed" for employer. Medical records prepared after the accident and Norris’s pre-hearing deposition testimony also failed to identify why Norris fell asleep behind the wheel. Finally, the Commission sua sponte considered whether the street risk doctrine demanded a different result, even though Norris did not previously argue the application of the doctrine to support his claim for benefits. The Commission held that the doctrine did not control its decision and that driving a company vehicle did not supply Norris with a risk of falling asleep behind the wheel.

II. ANALYSIS

A. Standard of Review

"Whether an injury arises out of and in the course of employment involves a mixed question of law and fact, which we review de novo on appeal." Snyder v. City of Richmond Police Dep’t, 62 Va. App. 405, 411, 748 S.E.2d 650 (2013) (quoting Blaustein v. Mitre Corp., 36 Va. App. 344, 348, 550 S.E.2d 336 (2001) ). "Accordingly, although we are bound by the commission’s underlying factual findings if those findings are supported by credible evidence, ... we review de novo the commission’s ultimate determination as to whether the injury arose out of the claimant’s employment." Stillwell v. Lewis Tree Serv., 47 Va. App. 471, 477, 624 S.E.2d 681 (2006) (citation omitted).

B. Norris’s Injury

The Workers’ Compensation Act applies when the claimant "satisfies both the ‘arising out of’ and the ‘in the course of’ prongs of the statutory requirements of compensability." Bernard v. Carlson Cos.—TGIF, 60 Va. App. 400, 404-05, 728 S.E.2d 508 (2012) (quoting Butler v. S. States Coop., Inc., 270 Va. 459, 465, 620 S.E.2d 768 (2005) ). "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." Id. at 405, 728 S.E.2d 508 (quoting Clifton v. Clifton Cable Contracting, LLC, 54 Va. App. 532, 539, 680 S.E.2d 348 (2009) ).

It is undisputed that Norris was injured "in the course of" his employment. Therefore, we need only address whether Norris’s injuries constitute a compensable injury "arising out of" his employment.

In determining whether an injury arises out of employment, "Virginia employs the actual risk test."

Southside Va. Training Ctr. v. Ellis, 33 Va. App. 824, 828, 537 S.E.2d 35 (2000) (quoting Vint v. Alleghany Reg’l Hosp., 32 Va. App. 60, 63, 526 S.E.2d 295 (2000) ). Under the actual risk test, the general rule is that a claimant’s injury arises out of the employment "if the manner in which the employer requires the work to be performed is causally related to the resulting injury." Id. (quoting Vint, 32 Va. App. at 63, 526 S.E.2d 295 ). Importantly, the actual risk test "necessarily excludes an injury caused by ‘a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood.’ " Bernard, 60 Va. App. at 405-06, 728 S.E.2d 508 (quoting Hill City Trucking v. Christian, 238 Va. 735, 740, 385 S.E.2d 377 (1989) ) (emphasis omitted). The causal connection required by the actual risk test "is established when ‘the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment.’ " City of Waynesboro v. Griffin, 51 Va. App. 308, 314, 657 S.E.2d 782 (2008) (quoting Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684 (1938) ).

Here, Norris argues that his accident arose out of his employment "because he was where he was expected to be—driving himself ... home, while reasonably fulfilling the duties of employment." Norris further argues that even though falling asleep while driving is a known hazard encountered by the general public, he "does not need to prove that his employment circumstances were the sole proximate cause of his accident only that the circumstances were a proximate cause."

Based upon the record before this Court, we find that Norris failed to establish the requisite causal connection between his employment and the resulting injury. Norris correctly states the proposition that "[t]he mere fact that the hazard is one to which the general public likewise is exposed is not ... conclusive against the existence of such causal relationship."

R & T Investments Ltd. v. Johns, 228 Va. 249, 253, 321 S.E.2d 287 (1984) (noting that the probability of harm may be augmented by the peculiar risks of the job) (citing Honaker v. Hartley, 140 Va. 1, 11, 124 S.E. 220 (1924) ). That proposition, however, does not negate the fact that it remains Norris’s statutory burden to "prove by a preponderance of the evidence that the accident ‘arose out of and in the course of his employment[.]’ " Conner v. Bragg, 203 Va. 204, 207-08, 123 S.E.2d 393 (1962) (quoting Norfolk & Washington Steamboat Co. v. Holladay, 174 Va. 152, 157, 5 S.E.2d 486 (1939) ). Further, for an injury to qualify as arising out of the course of the employment, this Court has consistently held that "[a] ‘critical link ’ must exist between the conditions of the workplace and the injury[.]" Basement Waterproofing & Drainage v. Beland, 43 Va. App. 352, 359, 597 S.E.2d 286 (2004) (quoting Pinkerton’s, Inc. v. Helmes, 242 Va. 378, 380-81, 410 S.E.2d 646 (1991) ) (emphasis in original).

Mindful of Norris’s statutory burden, the Commission found...