Puller v. Fairfax (Cnty. of) Sch. Bd.
| Decision Date | 09 January 2012 |
| Docket Number | Record No. 0886-11-4 |
| Parties | HARRIET PULLER, WIDOW, ON BEHALF OF THE ESTATE OF JOHN A. PULLER v. FAIRFAX (COUNTY OF) SCHOOL BOARD |
| Court | Virginia Court of Appeals |
Before: Judges Haley, Beales and Alston
Argued at Alexandria, Virginia
Lawrence J. Pascal (Alaina M. Dartt; Ashcraft & Gerel, LLP, on brief), for appellant.
Michael N. Salveson (Andrea Zizzi; Littler Mendelson, P.C., on brief), for appellee.
Harriet Puller (hereinafter, "wife") appeals the decision of the Workers' Compensation Commission denying dependent benefits purportedly arising from the death of her husband, John Puller (hereinafter, "decedent"). Wife contends that the Workers' Compensation Commission erred in failing to (1) apply a presumption that decedent died of work-related causes and (2) conclude that decedent's death arose out of his employment. We affirm.
We view the evidence on appeal in the light most favorable to "the prevailing party before the commission." Dunnavant v. Newman Tire Co., 51 Va. App. 252, 255, 656 S.E.2d 431, 433 (2008) (citation omitted).
At 6:30 a.m. on July 30, 2007, decedent reported to the Fairfax County School Board, where he worked as a mail delivery truck driver. Six hours later, decedent would be found dead of a heart attack in his work truck.
Decedent had a fixed route, which he drove in an assigned van. Decedent's route took approximately six hours to complete and involved about forty stops. At each stop, decedent would spend about three or four minutes in an air-conditioned building where he would drop off and pick up mail. His job duties primarily involved either driving or going into and out of buildings delivering and picking up mail. To aid him in this task, decedent was provided with a hand cart. Decedent wore a golf-style shirt and pants and was provided with complimentary bottled water, ice, and a cooler to take on his route.
Decedent's van had an air conditioning system in the cab and, although the van had recently been in the shop to have its air conditioning repaired, there is no evidence in the record indicating that the air conditioning was not working that day.1 The cargo area of the vehicle was not air conditioned. However, there was a partition between the cab and the cargo area which the driver could close to maximize the effects of the air conditioning in the cab. With sliding side doors and front windows, the same could be opened while the truck was operational, if the driver desired.
Shortly after noon on July 30, at decedent's final assigned stop for the day, his truck was spotted in reverse, abutted up against the curb and some bushes. The decedent was discovered inside with numerous burns on his body lying face down on the metal floor in the cargo area2 to the side of and immediately behind the driver's seat. School personnel subsequentlyadministered CPR and used an automatic external defibrillator, but decedent was unresponsive. Decedent was pronounced dead at Fairfax Hospital at 1:21 p.m. that afternoon.
Due to the unusual circumstances surrounding decedent's death, the police opened an investigation and an autopsy was performed by the state medical examiner's office. The medical examiner's office summarized its report of autopsy as follows:
This 58-year-old man was unresponsive in his work truck. Autopsy reveals an enlarged heart, granular kidneys, and coronary artery disease with healed heart attacks. Toxicology is negative. There is no antemortem (before death) injury. The skin changes are postmortem (after death) heat artefacts, consistent with contact with a hot surface.
The medical examiner concluded that the cause of death was "Hypertensive and atherosclerotic cardiovascular disease" and that the manner of death was "Natural."
As part of their investigation, the police conducted an experiment on August 1, 2007, in which they placed the van in the afternoon sun and took various temperature measurements over a one-hour period on various locations within the van. It was determined that within fifteen minutes, the temperature on the metal floor of the cargo area in which decedent was found exceeded 100 degrees and, in one hour, it was nearly 120 degrees. On April 8, 2008, the police closed their investigation, stating in their report: "It appear[s] that Puller . . . died of a heart attack while backing his van, then fell to the floor of the van where he sustained the aforementioned burns." Thus, the police concluded that decedent died of natural causes.
On July 30, 2008, wife filed a claim for workers' compensation benefits. Wife's theory was that the heat of July 30, 2007 caused the heart attack which killed decedent. To support this theory, wife proffered the opinions of Dr. Richard Schwartz, a cardiologist, and Dr. Bruce Charash, an internist. Dr. Schwartz opined that decedent "sustained a cardiac arrest in the setting of coronary artery disease . . . precipitated by extremely high ambient temperatures which reached up to 118 to 120 degrees." Dr. Charash opined that "extraordinary heat . . . [in] thevehicle in which Mr. Puller was operating caused heat stroke resulting in his fatal heart attack." In response, the employer offered the opinions of Dr. T.D. Nguyen, a cardiologist. Dr. Nguyen agreed with Dr. Schwartz that decedent sustained a cardiac arrest in the setting of coronary artery disease. However, Dr. Nguyen disagreed that the cardiac arrest was precipitated by extreme temperatures, stating that the cardiac arrest occurred under "fairly average ambient environmental conditions." Instead, Dr. Nguyen opined that the cardiac arrest was the product of a number of risk factors possessed by decedent including hypertension, diabetes, hypercholesterolemia, and cigarette smoking and, therefore, that the cardiac arrest was not work related. Dr. Nguyen further opined that decedent's death resulted from natural causes and that the heat-related injuries were "sustained as a result of post-mortem heat exposure." Dr. Nguyen noted that this latter opinion mirrors the conclusion arrived at by the medical examiner.
The employer also offered evidence into the record from the Old Farmer's Almanac to establish the temperature in Fairfax County on July 30, 2007 at a maximum of 84.2°F. Furthermore, the employer offered the deposition testimony of the Fairfax School Board employee who discovered decedent's body, who testified that the air in the vehicle had not seemed "hot" to him. Finally, the employer provided copies of decedent's medical records which indicate that one month prior to his death, decedent had been transported by ambulance to the emergency room at Prince William Hospital for chest pains.
By opinion dated December 10, 2009, the deputy commissioner denied the claim for benefits, concluding that wife had failed to establish by a preponderance of the evidence that decedent's death arose out of his employment. Wife appealed, and the commission affirmed the denial of benefits by opinion dated April 19, 2011. In affirming the deputy commissioner's denial of benefits, the commission concluded that the majority of the evidence in the record undermines the opinions of Dr. Schwartz and Dr. Charash and, furthermore, that the opinions ofthe medical examiner and Dr. Nguyen were more persuasive and logical. The commission also concluded wife was not entitled to a presumption that decedent's death was work related. Wife now appeals.
For an injury to be compensable under the Workers' Compensation Act, such injury must be "by accident arising out of and in the course of the employment." Code § 65.2-101. "The words 'arising out of,' as used in the Act, refer to the origin or cause of the injury while the phrase 'in the course of' pertains to the time, place and circumstances under which the accident occurred." Grand Union Co. v. Bynum, 226 Va. 140, 143, 307 S.E.2d 456, 458 (1983) (citation omitted). "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." PYA/Monarch & Reliance Ins. Co. v. Harris, 22 Va. App. 215, 221, 468 S.E.2d 688, 691 (1996) (citation omitted).
"An injury arises out of one's employment if there is a causal connection between the injury and the 'conditions under which the work is required to be performed.'" Dan River, Inc. v. Giggetts, 34 Va. App. 297, 304, 541 S.E.2d 294, 297 (2001) (citation omitted). The condition "'must be peculiar to the work [and] incidental to the character of the business.'" Id. (quoting County of Chesterfield v. Johnson, 237 Va. 180, 183-84, 376 S.E.2d 73, 75 (1989)).
"The burden of supplying evidence from which the inference can be legitimately drawn that the injury arose out of and in the course of the employment, rests upon the claimant." Butler v. Nolde Bros., Inc., 189 Va. 932, 944, 55 S.E.2d 36, 42 (1949) (quoting Sullivan v. Suffolk Peanut Co., 171 Va. 439, 443, 199 S.E. 504, 506 (1938)). "Claimant must prove by a preponderance of the evidence that he has satisfied each requirement." TBC Corp. v. Stephens,49 Va. App. 650, 655, 644 S.E.2d 84, 87 (2007); see also Baggett Transp. Co. v. Dillon, 219 Va. 633, 637, 248 S.E.2d 819, 822 (1978).
Under certain circumstances, Virginia courts have granted claimants a presumption that the employee's death arose out of and in the course of employment. See generally Lawrence J. Pascal, Virginia Workers' Compensation Law & Practice § 3.03[3][e] (3d ed. 2000 & Supp. 2009). As one early case explained:
[W]here an employee is found dead as the result of an accident at his place of work or near-by, where his duties may have called him during the hours of his work, and there is no evidence offered to show what caused the death or to show that he was not engaged in his...
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