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ARISING OUT OF

See Accident, Course of Employment

"To prove the 'arising out of' element, [claimant] must show that a condition of the workplace either caused or contributed to [the accident]." Southside Virginia Training Ctr. v. Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995) (citing County of Chesterfield v. Johnson, 237 Va. 180, 184, 376 S.E.2d 73, 76 (1989)).

An injury, to be compensable under the Workers' Compensation Act, must "arise out of" and be "in the course of" employment. Code Sec. 65.2-101. See County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). "Arising out of" refers to the origin or cause of the injury. Richmond Memorial Hospital v. Crane, 222 Va. 283, 285, 278 S.E.2d 877, 878 (1981). Whether an accident arises out of employment is a mixed question of law and fact which is reviewable on appeal. Mullins v. Westmoreland Coal Co., 10 Va. App. 304, 307, 391 S.E.2d 609, 611 (1990). An injury arises out of the employment if there is apparent to the rational mind a causal connection between the conditions under which the work is required to be performed and the resulting injury. United Parcel Service v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 893 (1985). An injury does not arise out of one's employment if it is caused by "a hazard to which the employee would have been equally exposed apart from the employment." Johnson, 237 Va. at 183, 376 S.E.2d at 75. However, if an injury "has followed as a natural incident of the work and has been a result of an exposure occasioned by the nature of the employment," then the injury "arises out of" the employment. Fetterman, 230 Va. at 258, 336 S.E.2d at 893. Virginia has adopted an "actual risk" test and has rejected the "positional risk" test followed by other jurisdictions. See Johnson, 237 Va. at 185, 376 S.E.2d at 75-76. The actual risk test "'requires only that the employment expose the workman to a particular danger from which he was injured, notwithstanding the exposure of the public generally to like risks.'" Olsten v. Leftwich, 230 Va. 317, 319, 336 S.E.2d 893, 894 (1985) (quoting Lucas v. Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972)).

To recover benefits, claimant must establish that he suffered an injury by accident "arising out of and in the course of his employment," Code Sec. 65.2-101, and "that the conditions of the workplace or some significant work-related exertion caused the injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). "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).

Employer takes claimant as he finds him. "An accident may be said to arise out of and in the course of the employment if the exertion producing the accident is too great for the man undertaking the work, even though the degree of the exertion is usual and ordinary and 'the workman had some predisposing weakness.' . . . 'The question is not whether it would affect the ordinary man, but whether it affected the [employee.]'" Russell Loungewear v. Gray, 2 Va. App. 90, 94, 341 S.E.2d 824, 826 (1986) (citations omitted)). If an aggravation of a pre-existing condition was caused by an identifiable incident that resulted in an obvious sudden mechanical or structural change in his body, the evidence proved that the '"causative danger . . . had its origin in a risk connected with the employment, and . . . flowed from that source as a rational consequence."' That the activity was usual, and did not require exertion, and that the injury was not 'foreseen or expected' are irrelevant." Grove v. Allied Signal, Inc., 15 Va. App. 17, 22, 421 S.E.2d 32, 35 (1992) (citation omitted). "'[T]he employer takes the employee as he is and if the employee is suffering some physical infirmity, which is aggravated by an industrial accident, the employer is responsible for the end result of such accident.'" McDaniel v. Colonial Mechanical Corp., 3 Va. App. 408, 414, 350 S.E.2d 225, 228 (1986) (citation omitted).

Going and Coming Rule. Generally, an injury or death is not compensable if it occurs while an employee is traveling to or from work. See Harbin v. Jamestown Village Joint Venture, 16 Va. App. 190, 193,428 S.E.2d 754, 756 (1993); Sentara Leigh Hosp. v. Nichols, 13 Va. App. 630, 636, 414 S.E.2d 426, 429 (1992). This rule is premised upon the principle that an employee traveling to or from his workplace "is not engaged in performing any service growing out of and incidental to his employment." Kendrick, 4 Va. App. at 190, 355 S.E.2d at 347. However, several exceptions exist to the "coming and going" rule. Id. The following three exceptions are generally recognized: "(1) where the means of transportation used to go to and from work is provided by the employer or the employee's travel time is paid for or included in wages; (2) where the way used is the sole means of ingress and egress or is constructed by the employer; and (3) where the employee is charged with some duty or task connected to his employment while on his way to or from work." Sentara, 13 Va. App. at 636, 414 S.E.2d at 429. The burden of proof is upon the claimant to establish by a preponderance of the evidence that one of these exceptions applies. See Id. at 636, 414 S.E.2d at 430.

Claimant's duty orders clearly establish that he was an employee of the National Guard, a prerequisite for coverage under the Act. See Code Sec. 65.2-101; Globe Indemnity Co. v. Forrest, 165 Va. 267, 271, 182 S.E. 216 (1935); Cotman v. Green, 4 Va. App. 256, 258, 356 S.E.2d 447, 448 (1987). However, the evidence supports the commission's finding that claimant was not performing any task or duty of his employment when he was traveling from his home to Fort A.P. Hill. Janine Nannette Carlson, et al. v. Department of Military Affairs/ Commonwealth of Virginia, Record No. 1626-97-2 (February 17, 1998).

Claimant was employed as a landscape worker for employer. On September 17, 1997, he rode as a passenger in employer's truck while en route from one job site to another job site. The truck, which was driven by his co-worker,  was involved in a head-on automobile collision. No evidence indicated that the driver or claimant detoured from the normal route between the two jobs or engaged in any activity not related to their employment. was thrown from the truck and lost consciousness for a period of time. After claimant regained consciousness in the hospital, he remembered leaning to retrieve his cigarettes from the floor of the truck. He could not remember anything about the accident or the events that followed the accident. The commission did not err in finding that claimant's "failure to recall the cause of his accident is not fatal to his claim," relying upon the "actual street risk" rule found in Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 434-35, 437 S.E.2d 727, 729 (1993). In Marketing Profiles, we recognized the following: To satisfy the "arising out of" prong of the compensability test, [the employee] 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." 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.'" Id. at 434, 437 S.E.2d at 729 (citations omitted). The evidence proved and the commission found that claimant's injuries were caused by an automobile accident. Claimant was a passenger in his employer's truck, which was being driven by his co-employee, when he was injured. He was in transit between two job sites, following the normal route with no detours. "Nothing in the record establishes that [claimant] was engaged in activities unrelated to his employment or that he was on the road as a result of a personal mission." Id. at 435, 437 S.E.2d at 729. Indeed, credible evidence proved that when claimant was injured in the automobile accident, "his travel on the highway . . . linking . . . [the two job sites] was travel 'which he was authorized and obligated to perform[; therefore,] the hazards of highway travel thus became necessary incidents of his employment.'" Id. at 434-35, 437 S.E.2d at 729 (citation omitted). Horner Lawn Service, Inc. v. Roy T. Compton, Record No. 2043-99-2 (February 8, 2000). WP Version.

An accident arises out of the employment when a causal connection exists between the claimant's injury and the conditions under which the employer requires the work to be performed. or a "significant work related exertion." United Parcel Serv. v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 893 (1985). Grove v. Allied Signal, Inc., 15 Va. App. 17, 19, 421 S.E.2d 32, 34(1992); Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 482,484, 382 S.E.2d 305, 306 (1989) The causative danger must be peculiar to the work and incidental to the character of the business. If the injury stemmed from a hazard to which the employee would have been equally exposed apart from the employment, no compensation is warranted. Fetterman, 230 Va. at 258, 336 S.E.2d 893. "'Under this test, if 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, then it arises "out of" the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.'" Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938), quoting In re McNicol, 215 Mass. 497, 499, 102 N.E. 697, 697 (1913). Baggett Transp. Co. v. Dillon, 219 Va. 633, 638, 248 S.E.2d 819, 822 (1978). Whether an injury arises out of the employment is a mixed question of law and fact and is reviewable on appeal. Barbour, 8 Va. App. at 483, 382 S.E.2d at 305.

A home health care registered nurse, injured her back while lifting a plastic water basin she used to clean a patient's ventilator tube and while looking upward. The empty water basin was on the floor in a small closet. Claimant had her hand on the closet doorknob as she retrieved the basin. While straightening up with the basin in her hand, she felt pain in her back. She denied that she bent down in an awkward fashion to pick up the basin. The basin had no significant weight and lifting it did not involve any significant exertion. There was nothing about the size of the closet which restricted or obstructed her movements. Claimant failed to prove as a matter of law that her injury arose out of her employment. The evidence established that claimant did not engage in any significant exertion, that her action of looking upward as she reached for the basin did not involve any awkward movement or position, and that no condition or hazard peculiar to her workplace caused her injury. Carol Huffman v. Carilion Rke Memorial Hosp., Record No. 0995-99-3 (September 14, 1999). WP Version.

"To prove the 'arising out of' element, [in a case involving injuries sustained from falling down stairs at work,] [claimant] must show that a condition of the workplace either caused or contributed to [his] fall." Southside Virginia Training Ctr. v. Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995) (citing County of Chesterfield v. Johnson, 237 Va. 180, 184, 376 S.E.2d 73, 76 (1989)). "Whether an injury arises out of the employment is a mixed question of law and fact and is reviewable by the appellate court." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305, 305 (1989). Claimant, a deputy sheriff, was posting papers on the front door of the central entrance of an apartment building. To complete this task, he ascended a flight of stairs, and taped the papers to the door. The door was located approximately twenty-seven inches from the top of the staircase. As claimant turned to leave, he looked at the city workers in order to decide whether he could descend the stairs without a danger of having debris blown into his eyes, and fell before his foot made contact with the first step. After taping papers to the door, he turned with tape in his left hand and looked at the city workers blowing leaves on the sidewalk below in order to decide whether he could descend the stairs without a danger of having debris blown into his eyes. He reached for a handrail but there was none there. Claimant stated he did not recall slipping or tripping and did not know why he fell. Although his job required he serve as many papers as possible, claimant admitted that he was in no particular hurry on the day of his accident and that he had no quota to meet. The City building inspector concluded that the staircase was in compliance with the "applicable sections of the 1996 Uniform Statewide Building Code." Although claimant was in the course of his employment when his injury occurred, the evidence did not show that any defect in the stairs or any condition peculiar to his workplace caused him to fall down the steps and injure himself. Claimant's evidence did not prove that the lack of handrails at the top of the stairs was a defect or anomaly constituting a risk of his employment nor did his evidence prove that the landing at the top of the stairs was defectively narrow. Moreover, claimant's evidence did not prove that the lack of handrails or the width of the landing caused him to fall. The alleged distraction of city employees blowing leaves on the sidewalk below did not constitute a risk of claimant's employment or cause his fall. This alleged "distraction did not startle the claimant, nor prevent him from viewing the staircase before beginning his descent." The alleged distraction was not a risk peculiar to claimant's employment, but rather, was common to the neighborhood. Russell D. Clay v. Winchester Sheriff's Office, Record No. 2441-98-4 (October 26, 1999). WP Version.

Repetitive or cumulative activities can be treated as conditions of workplace. Knee-bending demanded of claimant when operating knitting machines was a condition to which she was not equally exposed apart from her employment. Cf. Grove v. Allied Signal, Inc., 15 Va. App. 17, 19-21, 421 S.E.2d 32, 34-35 (1992) (claimant's stooping and crouching incidental to fixing pipes exposed him to a risk of back injury peculiar to his employment); Brown, Inc. v. Caporaletti, 12 Va. App. 242, 245, 402 S.E.2d 709, 711 (1991) (claimant's cutting and fitting motions performed in a bent over position while installing a 100-pound furnace exposed him to a risk of back injury unique to his employment).

Where operating a knitting machine required claimant to squat and bend her knees until her "rear end [was] lower than [her knees]" and her weight rested on her heels, this manner of reloading the lowest creels with yarn increased her risk of tearing cartilage in her knee and directly contributed to cause her injury. Cf. Marion Correctional Treatment Ctr. v. Henderson, 20 Va. App. 477, 480-81, 458 S.E.2d 301, 303 (1995).

Although job-related impairments resulting from cumulative trauma caused by repetitive motion are not compensable under the Act, Stenrich Group v. Jemmott, 251 Va. 186, 199, 467 S.E.2d 795, 802 (1996), the commission did not conclude that claimant's injury resulted from a cumulative trauma. Instead, the commission found that the medial meniscus in claimant's left knee was damaged once, on a particular date, and that this single injury was causally related to the risk of tearing cartilage associated with performing deep knee-bends. The commission characterized the extreme squatting as a "causative danger" and "a risk connected with the employment and did not find that the knee-bends injured claimant gradually over time. Bassett-Walker, Inc. v. Shirley Jean Wyatt, 26 Va. App. 87, 93-94, 493 S.E.2d 384, 387-88 (1997).

Claimant's accident occurred after the claimant was partially squatting and bending over, at a forty-five degree angle, bracing a box with her knee. She felt a sharp stabbing pain in her lower back, when she was straightening up from this position. She had done this work for approximately one-half hour. Although simple acts of walking, bending or turning without any other contributing environmental factors are not risks of employment, [claimant's] injury did not occur from just straightening. She had worked in an awkward position: bent at the waist, slightly crouching with her right knee against a box for about thirty minutes, and was injured when she rose from this position. The Court of Appeals upheld the commission's finding that claimant's accident arose from her employment. Claimant must prove that she suffered an injury by accident that arose out of and in the course of the employment. See County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). An injury "arises out of" the employment if a causal connection exists between the claimant's injury and "the conditions under which the employer requires the work to be performed," Grove v. Allied Signal, Inc., 15 Va. App. 17, 19, 421 S.E.2d 32, 34 (1992), or "that some significant work related exertion caused the injury." Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). "Under this test, if 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, then it arises 'out of' the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence." R & T Investments, Ltd. v. Johns, 228 Va. 249, 252-53, 321 S.E.2d 287, 289 (1984) (citations omitted). In Richard E. Brown, Inc. v. Caporaletti, 12 Va. App. 242, 402 S.E.2d 709 (1991), the Court of appeals determined whether an employee's cutting and fitting motion performed in a bent over position while installing a 100-pound furnace exposed him to a risk of back injury unique to his employment. Affirming the commission's award of benefits, the Court of Appeals concluded the employee's need to work in the bent over position and to extract himself from that position was a "hazard to which [the employee] would not have been equally exposed apart from the conditions of employment." Id. at 245, 402 S.E.2d at 711 (citations omitted). See also Bassett-Walker, Inc. v. Wyatt, 26 Va. App. 87, 93-94, 493 S.E.2d 384, 387-88 (1997) (concluding that claimant's knee-bending or "squatting" to reach a position close to the ground to load yarn on a knitting machine was a condition of work that exposed claimant to risk of injury); Grove, 15 Va. App. at 20-21, 421 S.E.2d at 34-35 (holding that claimant's stooping and bending incidental to fixing pipes exposed him to a risk of back injury particular to his employment). In the instant case, credible evidence supports the commission's finding that claimant worked in an awkward position, "bent at the waist, slightly crouching with her right knee against a box." Although employer contends that there is nothing awkward or unusual about claimant's work activity because she "bent in the same or similar fashion" outside the work environment, contrary to employer's position, claimant testified on re-direct that in none of the activities she performed at home was she stooped or bent at the waist with her knee propped against something. Moreover, "[t]he mere fact that an unusual movement required by one's employment is occasionally done outside the workplace does not necessarily make a resulting workplace injury non-compensable." Bassett-Walker, Inc. v. Wyatt, 26 Va. App. 87, 94, 493 S.E.2d 384, 387-88(1997). Lear Corporation Winchester v. Anna M. McFarland, Record No. 2139-98-4 (May 11, 1999). WP Version.

Claimant  used an electric hoist to lift a large aircraft tire and then lower it onto a table. He testified that the tires are "real slick and will try to slide off" the table. "[I]n the process of letting the tire down I'm . . . twisting back and forth, and I had a pain occur in my back." He testified he had his left hand on the tire, right hand on the hoist, and that his left knee was propping up the tire when he "turn[ed] back around [and] had a pain in his back." He was diagnosed as having a lumbosacral sprain. Sufficient evidence in the record  establishes a compensable claim arising out of claimant's employment. Applying the "actual risk" test, an employee's injury "arises out of" his employment when "it is apparent to a rational mind, under all attending circumstances, that a causal connection exists between the conditions under which the work is required to be performed and the resulting injury." Lipsey v. Case, 248 Va. 59, 61, 445 S.E.2d 105, 106 (1994) (dog-bite from co-worker's dog not causally related to work) (citations omitted). See also Richard E. Brown, Inc. v. Caporaletti, 12 Va. App. 242, 245, 402 S.E.2d 709, 711 (1991); Kemp v. Tidewater Kiewit, 7 Va. App. 360, 363, 373 S.E.2d 725, 726 (1988). In Grove v. Allied Signal, Inc., 15 Va. App. 17, 421 S.E.2d 32 (1992), Grove, a pipe fitter, was working several feet off the ground in a crouched position when he injured his back while reaching for a pipe. Whether Grove was reaching for or had lifted the pipe, the evidence was sufficient to prove that the "'"causative danger . . . had its origin in a risk connected with the employment, and . . . flowed from that source as a rational consequence."'" Id. at 22, 421 S.E.2d at 34 (quoting R&T Investments, Ltd. v. Johns, 228 Va. 249, 253, 321 S.E.2d 287, 289 (1984) (quoting Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938))). In this case, claimant's "act of turning was associated with the task of lowering an aircraft tire onto a repair table." This was not a simple case of turning. Claimant was required to twist back and forth to balance the slick tire on the smaller table. After setting the tire down, he felt "pain while turning away which was directly connected to the more strenuous activity." Clearly, claimant's job, which required manipulating large aircraft tires onto repair tables, exposed him to "hazards to which he would not have been equally exposed apart from the conditions of the employment." Caporaletti, 12 Va. App. at 245, 402 S.E.2d at 711 (citations omitted). Goodyear Tire & Rubber Co. v. Ronald Wood, Record No. 0071-99-3 (August 3, 1999). WP Version.

Injury from simple act of bending over not compensable. Claimant bent down to get a plastic liner from a trash can. When she had the liner in her hand, but before picking it up, she felt a sudden intense pain in her lower back. Claimant was merely bending over when she felt a sudden pain in her back. She did not twist or turn, nor was she required to twist or turn incidental to the bending or lifting. Cf. First Federal Savings & Loan Ass'n v. Gryder, 9 Va. App. 60, 65, 383 S.E.2d 755, 758-59 (1989) (injury arose out of employment when Gryder jerked or twisted in attempt to answer phone in order to avoid falling off stool when her shoe heel got stuck in its rim). The claimant did not lift anything. Nor was there anything peculiar about the act of bending over to retrieve a trash bag which made her injury compensable. No evidence proved anything unique about the height of the trash can or that the claimant was subjected to repetitive bending. There was no work-related condition that caused the injury to claimant's back. In Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 382 S.E.2d 305 (1989), the court held that "[t]he mere happening of an accident at the workplace, not caused by any work related risk or significant work related exertion, is not compensable." 8 Va. App. at 484, 382 S.E.2d at 306. An injury resulting from merely bending over to do something does not arise out of the employment. Bassett-Walker, Inc. v. Wyatt, 26 Va. App. 87, 493 S.E.2d 384 (1997) (en banc), is distinguishable on its facts. In Wyatt a knitting machine operator, was required to replace empty creels of yarn located 2 inches off the ground on her machine. She repeated this task, which required her to do deep-knee bends, approximately 200 times per 12-hour shift. While replacing the yarn, she heard a pop, and was unable to straighten her leg. The court ruled that the injury was compensable because the employment required an unusual, repetitive movement. The "unique demands of operating the . . . machine provided the 'critical link' between claimant's employment and her injury." Id. at 93, 493 S.E.2d at 387. Wyatt's risk of injury was directly associated with her employment, the risk directly contributed to cause the injury, and the risk far exceeded the general public's exposure. See id. at 94-95, 493 S.E.2d at 388; Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). In County of Chesterfield v. Johnson, 237 Va. 180, 376 S.E.2d 73 (1989) a water plant operator was walking up stairs when he realized he forgot to check a meter. He turned to go down the stairs and his knee gave way resulting in his injury. The stairs were not defective and claimant did not fall, nor did he injure himself by climbing or descending the stairs. The Supreme Court held that an injury resulting from turning was not compensable, even though the claimant was on the mission of his employer, because the work environment did not cause the injury. In United Parcel Service v. Fetterman, 230 Va. 257, 336 S.E.2d 892 (1985), a deliveryman injured his back when he raised his foot onto the back of his truck and bent to tie his shoe. The Supreme Court held that there was no causal connection between his injury and the conditions under which the work was to be performed. An injury which "comes from a hazard to which the employee would have been exposed equally apart from the employment," is not compensable. Id. at 258, 336 S.E.2d at 893. Because everyone with laced shoes must bend down to tie them, the claimant's injury was not peculiar to the requirements of his employment. Although in this case, claimant was performing her employment duties when she was injured, that issue alone is not dispositive. See id. There must exist a causative danger peculiar to the claimant's work. See Bradshaw, 170 Va. at 335, 196 S.E. at 686. Moreover, the act of merely bending over is a risk to which the general public is equally exposed. See id.; Barbour, 8 Va. App. at 484, 382 S.E.2d at 306. Claimant's injury did not arise out of her employment. Donna Mae Vint v. Alleghany Regional Hospital, Record No. 1458-99-3 (March 21, 2000). WP Version.

Cases in which the claimant's injury occurred during the course of the employment but was not causally related to a condition or exertion peculiar to the job. See County of Chesterfield v. Johnson, 237 Va. 180, 184-86, 376 S.E.2d 73, 75-76 (1989) (no evidence established that an "actual risk" of employment caused claimant's knee to "give way" and claimant to fall to the floor); United Parcel Service of America v. Fetterman, 230 Va. 257, 259, 336 S.E.2d 892, 893 (1985) (no evidence established that back strain that occurred when claimant bent over to tie his shoe was caused by a hazard peculiar to the workplace); Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989).(no evidence established that back strain that occurred when claimant bent over to pick up a piece of plastic pipe was caused by a work-related risk or exertion).

Where there is no significant exertion, the action of squatting involves no awkward position, and no condition peculiar to the workplace causes the injury, the injury cannot be said to have "aris[en] out of" employment. County of Chesterfield v. Johnson, 237 Va. 180, 185-86, 376 S.E.2d 73, 76(1989); Grove v. Allied Signal, Inc., 15 Va. App. 17, 19-20, 421 S.E.2d 32, 34 (1992); Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989).

To recover benefits, claimant must establish that he suffered an "injury by accident arising out of and in the course of his employment," Code Sec. 65.2-101, and "that the conditions of the workplace or some significant work related exertion caused the injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). "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). A meter reader, drove the company regular size pickup truck to a house, put the truck in park,  reached over to open the door and reached back to get a three pound data cap located to his right on the seat. When he rotated or twisted a little faster than usual to get out of the truck his left foot went down and then he felt a real sharp pain in his back. Claimant did not engage in any significant exertion,  his simple act picking up the three-pound data cap and turning to exit his truck did not involve any awkward position, and no condition or hazard peculiar to his workplace caused his injury, aside from the usual act of turning and exiting a vehicle. Therefore, claimant failed to prove as a matter of law that his injury arose out of his employment. William Frezell Crawford v. Virginia Electric & Power, Record No. 1125-99-3 (October 5, 1999). WP Version.

Claimant must establish that she suffered an "injury by accident arising out of and in the course of [her] employment," Code Sec. 65.2-101, and "that the conditions of the workplace or some significant work related exertion caused the injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). "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). The commission found that the claimant was sitting in a low chair, the desk was at a level right under her breast line, when she felt pain in her low back after reaching forward and picking up a stack of paper that weighed less than two pounds. The height of the chair did not require the claimant to reach or stretch sufficiently to have placed her in an awkward position or require unusual exertion in order to collate the documents. Therefore, there was not a causative nexus between the chair height and the injury. . . . [T]he claimant was performing the simple task of reaching to collate documents while sitting in a chair that was lower in relation to the desk than one would normally expect. This is not sufficient to provide the sufficient relationship between the work and the injury for the injury to arise out of the employment. No evidence established that claimant engaged in any significant exertion, that her action of sitting in the chair and reaching for the papers involved any awkward position, or that any condition or hazard peculiar to her workplace caused her injury, aside from the usual act of reaching to pick up the papers. Bonnie S. Pate v. Dollar Tree Stores, Inc., Record No. 0065-99-1 (June 1, 1999). WP Version.

The commission correctly rejected claimant's witness' testimony. Her testimony that claimant was actually lifting a patient, contradicted claimant's own testimony. Under the doctrine enunciated in Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652, 656 (1922), claimant could not rise above her own testimony, which was insufficient to prove an injury by accident arising out of her employment. Therefore, claimant failed to prove as a matter of law that her injury arose out of her employment. Jerry Anne Bickell v. Lake Taylor Hospital, Record No. 1328-98-1 (November 24, 1998).

In cases in which the claimant alleges an injury by accident resulting from an employment-related risk, "[a] 'critical link' must exist between the conditions of the workplace and the injury in order for the injury to qualify as 'arising out of' the employment." Pinkerton's, Inc. v. Helmes, 242 Va. 378, 380, 410 S.E.2d 646, 647 (1991).

An injury arises out of the employment "'when 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 v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938) (quoting In re McNicol, 102 N.E.697, 697 (Mass. 1913)).

In proving the "arising out of" prong of the compensability test, a claimant has the burden of showing 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.'" Marketing Profiles, Inc. v. Hill,17 Va. App. 431, 433-434, 437 S.E.2d 727, 729 (1993) (quoting Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938)). "[I]f 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, then it arises 'out of' the employment. But [the arising out of test] excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment." Grove v. Allied Signal, Inc., 15 Va. App. 17, 19-20, 421 S.E.2d 32, 34 (1992) (quoting R & T Investments, Ltd. v. Johns, 228 Va. 249, 252-53, 321 S.E.2d 287, 289 (1984)).

Work Ordered by Supervisor Outside Usual Duties. In Arrington v. Murray, 182 Va. 1, 28 S.E.2d 19 (1943), the Supreme Court held that an injury arises out of the employment when the employee is performing work directed by one of the business partners, even if the work was not in the trade, business, or occupation of the employer but was personal to the partner and performed at his residence. See id. at 5, 28 S.E.2d at 20-21. The Supreme Court agreed with the commission that it would be inequitable to allow an employer to direct an employee to perform work and then deny that the employee was protected by the Virginia Workers' Compensation Act. See id. at 5, 28 S.E.2d at 21. Where the employee is injured while performing an activity that the employer has instructed him or her to do, that work constitutes part of an employee's employment responsibilities and required work, even though different from his or her usual and regular tasks performed in the employer's business. See Honaker & Feeney v. Hartley, 140 Va. 1, 13, 124 S.E. 220, 223 (1924). As one authority has noted, activity that is not an integral or normal part of the job becomes such where the employer's request clearly conveys the understanding that the employee was to take part in the activity. See 2 Arthur Larson, Larson's Workers' Compensation Law, Sec. 22.04(2) (1999). Prince William County School Board v. Fogarty, Record No. 1866-98-4 (August 31, 1999). WP Version.

Unexplained vs. Idiopathic Accidents. "All risks causing injury to a claimant can be brought within three categories: risks distinctly associated with the employment, risks personal to the claimant, and 'neutral' risks--i.e., risks having no particular employment or personal character." 1 Arthur Larson, The Law of Workmen's Compensation, Sec. 7.00, at 3-12 (1990). The category of risk in a particular case determines the analysis used in examining whether a claimant's injury "arose out of" his or her employment. In Southland Corp. v. Parson, 1 Va. App. 281, 283, 338 S.E.2d 162, 163 (1985), the court recognized the distinction between unexplained falls and idiopathic falls. In a personal risk or idiopathic case, the claimant's injury is one "caused by a preexisting personal disease of the employee." Southland Corp. v. Parson, 1 Va. App. 281, 283, 338 S.E.2d 162, 163 (1985). In Virginia, the general rule regarding idiopathic falls is that the claimant must prove that the injury was not caused by some idiopathic condition. See Winegar v. International Telephone & Telegraph, 1 Va. App. 260, 263, 337 S.E.2d 760, 761 (1985). "When an employee's injuries result from an idiopathic condition and no other factors intervene or operate to cause or contribute to the injuries sustained as a result of the idiopathic condition, no award shall be made." Virginia Dep't of Transp. v. Mosebrook, 13 Va. App. 536, 538, 413 S.E.2d 350, 351-52 (1992). However, "the effects of [an idiopathic] fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle." Southland Corp., 1 Va. App. at 284-85, 338 S.E.2d at 164 (citation omitted). Thus, in an idiopathic fall situation, the well-established increased risk doctrine applies, and no recovery is allowed unless the claimant proves that a condition of the employment increased the effects of his or her fall. Finally, and by contrast, an unexplained fall or accident is encompassed in the "neutral risk" category. An unexplained injury does not result from any employment-related condition or from any idiopathic condition of the claimant. Memorial Hospital of Martinsville v. Hairston, 2 Va. App. 677, 682, 347 S.E.2d 527, 529 (1986). In Virginia, when an unexplained injury by accident in the course of employment results in the death of an employee, a presumption arises that the injury "arose out of" the employment. See id. at 680-81, 347 S.E.2d at 528 (citing Southern Motor Lines v. Alvis, 200 Va. 168, 171-72, 104 S.E.2d 735, 738 (1958)). However, the unexplained death presumption does not apply to an unexplained accident situation. Pinkerton's, 242 Va. at 380-81, 410 S.E.2d at 648. In Pinkerton's, the Court explained: Every unexplained accident, by definition, means that no one can relate how the accident happened. The reason for the inability to recall may be based on a preexisting or resulting, temporary or permanent, physical condition of the claimant, as well as mere inattention at the moment of the accident. If mere inability to recall the events is the rationale for application of the presumption, then it would also be logical that the claimant should be entitled to the benefit of the presumption in any of these circumstances, or whenever there is an unexplained accident. Id. at 381, 410 S.E.2d at 648. The Supreme Court concluded that "[b]roadening the use of the [unexplained death] presumption to such an extent [would] significantly alter[] the jurisprudence of workers' compensation law. This change . . . is more properly a matter of policy, a prerogative of the legislative branch of government." Id. Professor Larson has noted that, "[i]n a pure unexplained-fall case, there is no way in which an award can be justified as a matter of causation theory except by a recognition that [positional risk] but-for reasoning satisfies the 'arising' requirement." 1 Larson, supra, Sec. 10.31(a), at 3-94. However, "Virginia has adopted an 'actual risk' test and has rejected the 'positional risk' test followed by other jurisdictions." Marion Correctional Treatment Ctr. v. Henderson, 20 Va. App. 477, 480, 458 S.E.2d 301, 303 (1995). Thus, in an unexplained fall case in Virginia, a claimant must prove by a preponderance of the evidence that the fall "arose out of" the employment by establishing a causal connection between his or her employment and the fall. The increased effects analysis properly used in idiopathic fall cases does not apply to an unexplained fall situation. The courts are bound by the rationale of Pinkerton's that an unexplained fall is not compensable "[i]n the absence of a showing that the [injury] 'arose out of' the employment." 242 Va. at 381, 410 S.E.2d at 648. In Southland Corp., the court recognized the distinction between unexplained falls and idiopathic falls, and did "not consider the consequences of an unexplained fall by an employee." 1 Va. App. at 284, 338 S.E.2d at 163. PYA/Monarch and Reliance Ins. Co. v. Harris, 22 Va. App. 215, 468 S.E.2d 688 (1996).

The commission did not err in holding that claimant's automobile accident "arose out of" his employment, although claimant's diabetes may have caused his accident. Claimant, a diabetic, was employed as a salesman for a farming supply distributor. His sales area consisted of a large portion of western and southwestern Virginia. His employer routinely provided him a vehicle to travel his sales area and to make sales calls to regular and prospective customers. During a sales call, claimant began to feel symptoms of his diabetes. After drinking a soft drink which he mistakenly believed contained sugar, he began the drive to his next destination. If time permitted, he was planning to visit another customer; if not, he would return to his home office. After claimant traveled just a few miles, he drove off the road, hitting a tree and severely injuring himself. He suffered a cervical vertebral fracture, resulting in quadriplegia. In order for an injured worker to recover under the Act, the claimant must prove an injury by accident "arising out of and in the course of the employment." Code Sec. 65.2-101. "The phrases arising 'out of' and arising 'in the course of' are separate and distinct." County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). "The phrase arising 'out of' refers to the origin or cause of the injury." See id. "An injury 'arises out of' the employment if a causal connection exists between the claimant's injury and 'the conditions under which the employer requires the work to be performed' or a 'significant work related exertion.'" Bassett-Walker, Inc. v. Wyatt, 26 Va. App. 87, 92, 493 S.E.2d 384, 387 (1997) (en banc) (quoting Grove v. Allied Signal, Inc., 15 Va. App. 17, 19, 421 S.E.2d 32, 34 (1992)). An injury does not arise out of one's employment if it is caused by "a hazard to which the employee would have been equally exposed apart from the employment." However, if an injury "has followed as a natural incident of the work and has been a result of an exposure occasioned by the nature of the employment," then the injury "arises out of" the employment. Marion Correctional Treatment Center v. Henderson, 20 Va. App. 477, 480, 458 S.E.2d 301, 303 (1995) (citations omitted). Virginia has adopted the "actual risk" test and has rejected the "positional risk" test followed by other jurisdictions in determining whether an injury arises out of the employment. See Johnson, 237 Va. at 185, 376 S.E.2d at 75-76. The positional risk doctrine generally requires only that the injured employee prove that the injury occurred during the time and at the place of employment. See id.; see also Hill City Trucking v. Christian, 238 Va. 735, 740, 385 S.E.2d 377, 380 (1989); Zahner v. Pathmark Stores, Inc., 729 A.2d 478, 479 (N.J. Super. Ct. 1999) (claimant need prove only "probably more true than not that the injury would have occurred during the time and place of employment rather than somewhere else"). In order to be compensable under the actual risk test, "the origin or cause of the injury" must be a risk connected with the employment. "That risk must be an 'actual risk' of employment, not merely the risk of being injured while at work." Taylor v. Mobil Corp., 248 Va. 101, 107, 444 S.E.2d 705, 708 (1994). The actual risk test "'requires only that the employment expose the workman to a particular danger from which he was injured, notwithstanding the exposure of the public generally to like risks.'" Olsten v. Leftwich, 230 Va. 317, 319, 336 S.E.2d 893, 894 (1985) (quoting Lucas v. Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972)). "[A]n injury 'arises "out of" the employment, when 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 v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938) (citation omitted). Traveling in his automobile to call upon customers was a condition of work claimant performed  which exposed him to the risk of an accident each time he traveled. Because claimant's employment exposed him to the danger that caused his injury, his injury by accident arose out of his employment. See PYA/Monarch and Reliance Ins. Co. v. Harris, 22 Va. App. 215, 222-23, 468 S.E.2d 688, 691 (1996). The injury that claimant suffered, a cervical vertebral fracture, was a result of the automobile colliding with a tree, a risk that was directly associated with his employment as a traveling salesman. Although claimant's diabetic condition may have caused the accident, the nature of claimant's employment, specifically the requirement that he routinely travel, contributed to the risk of injury by an automobile accident. The focus is not so much with the cause of an accident as with whether a causal relation exists between the injury and the employment. The focus also must be upon whether "the employment places the employee in a position increasing the dangerous effects of such [an injury] . . . in a moving vehicle." Immer & Company v. Brosnahan, 207 Va. 720, 726,152 S.E.2d 254, 258 (1967). Claimant's injuries were not limited to those he might have suffered solely as a result of a diabetic blackout; the cervical vertebral fracture was a result of the automobile accident. As the Court explained in PYA/Monarch and Reliance Ins. Co. v. Harris, "[w]hen an employee's injuries result from [a pre-existing personal disease of the employee] and no other factors intervene or operate to cause or contribute to the injuries sustained . . . , no award shall be made." 22 Va. App. at 222, 468 S.E.2d at 691. "However, 'the effects [an accident caused by a pre-existing condition or] idiopathic fall are compensable if the employment places the employee in a position increasing the dangerous effects of" the accident. Id. Because claimant's employment subjected him to the risk of injury by accident and increased the dangerous effects of the injury that he received, his injury arose out of his employment. Royster Clark, Inc. v. Bays, Record No. 1031-99-3 (December 14, 1999). WP Version.

An injury 'occurs in the "course of employment" when it takes place within the period of employment, at a place where the employee may be reasonably expected to be, and while he is fulfilling the duties of his employment or is doing something which is reasonably incidental thereto.'" Lucas v. Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972) (quoting Conner v. Bragg, 203 Va. 204, 207-08, 123 S.E.2d 393, 396 (1962)). Moreover, "compensation under the Act [is] not confined to injuries occurring only during working hours." Id. "If the voluntary act of an employee which causes an injury is sufficiently related to what the employee is required to do in fulfilling his contract of service, or is one in which someone in a like capacity may or must do in the interest of his employer's business, the fact that the employee was not actually required to perform the act will not impair his right to recover compensation." Id. at 564, 186 S.E.2d at 65 (citation omitted).

"The claimant had the burden of establishing, by a preponderance of the evidence, and not merely by conjecture or speculation, that [he] suffered an injury by accident which arose out of . . . the employment." Central State Hosp. v. Wiggers, 230 Va. 157, 159, 335 S.E.2d 257, 258 (1985). "To prove the 'arising out of' element, [in a case involving injuries sustained from falling down stairs at work,] [claimant] must show that a condition of the workplace either caused or contributed to [his] fall." Southside Virginia Training Ctr. v. Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995) (citing County of Chesterfield v. Johnson, 237 Va. 180, 184, 376 S.E.2d 73, 76(1989)). This analysis "excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the [claimant] would have been equally exposed apart from the employment." R & T Investments, Ltd. v. Johns, 228 Va. 249, 253, 321 S.E.2d 287, 289 (1984).

Assaults that are not directed against an employee as an employee or because of his employment, for example, assaults for personal reasons, do not arise out of the employment. Richmond Newspapers, Inc. v. Hazlewood, 249 Va. 369, 457 S.E.2d 56 (1995). Normally, If an employee is at fault as an aggressor in an altercation, compensation is denied because the proximate cause of the injury is the fault of the employee, not the employment. Farmers' Mfg. Co. v. Warfel, 144 Va. 98, 131 S.E. 240 (1926). Injuries from mutual participation in horseplay is not an injury by accident. Injuries to a claimant who is not participating in horseplay are compensable. Dublin Garment Co. v. Jones, 2 Va. App. 165, 342 S.E.2d 638 (1986). Horseplay condoned by the employer is compensable. Jackness v. National Automobile Dealers Corp., 60 O.I.C. 224 (1981). Horseplay is an affirmative defense with the burden of proof on the employer. Simms v. Boddie Noell Enterprises, Inc., 63 O.I.C. 303 (1984).

Benefits were properly awarded to a claimant who was struck by a co-worker because of a work- related disagreement and who was not the aggressor. Surface Technologies Corporation v. Kerry Orlando Ridley, Record No. 1468-98-1 (February 2, 1999).

Benefits were properly awarded to a truck driver who was injured in an altercation with another motorcyclist in a dispute over the truck driver's driving. In determining if an accident arises out of the employment, Virginia applies the "actual risk" test, which "requires that the employment subject the employee to the particular danger that brought about his or her injury." Lipsey v. Case, 248 Va. 59, 61, 445 S.E.2d 105, 106 (1994) (citations omitted); see, e.g., Hill City Trucking, Inc. v. Christian, 238 Va. 735, 739, 385 S.E.2d 377, 379 (1989); Park Oil Co., Inc. v. Parham, 1 Va. App.166, 169, 336 S.E.2d 531, 533 (1985). "Consequently, an accident arises out of the employment when it is apparent to a rational mind, under all attending circumstances, that a causal connection exists between the conditions under which the work is required to be performed and the resulting injury." Lipsey, 248 Va. at 61, 445 S.E.2d at 107 (citations omitted); see, e.g., R & T Investments, Ltd. v. Johns, 228 Va. 249, 252, 321 S.E.2d 287, 289 (1984); Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 434, 437 S.E.2d 727, 729 (1993). Accordingly, to be entitled to an award arising from an assault, a claimant must establish "that the assault was directed against him as an employee, or because of his employment." Continental Life Ins. Co. v. Gough, 161 Va. 755, 760, 172 S.E. 264, 266 (1934); see Reamer v. Nat'l Serv. Indus., 237 Va. 466, 470, 377 S.E.2d 627, 629 (1989); Park Oil Co., 1 Va. App. at 170, 336 S.E.2d at 533-34. "'[A] showing that the probability of assault was augmented . . . because of the peculiar character of the claimant's job'" supplies the requisite causal connection. R & T Investments, Ltd. v. Johns, 228 Va. at 253, 321 S.E.2d at 289 (citation omitted); Roberson v. Whetsell, 21 Va. App. 268, 271, 463 S.E.2d 681, 683 (1995) (citation omitted); see Reamer, 237 Va. at 470, 377 S.E.2d at 629 ("A physical assault may constitute an 'accident' . . . when it appears that it was a result of an actual risk arising out of employment."). Here, the motorcyclist's furious attack on claimant was triggered by claimant's "need to occupy part of two lanes to negotiate a turn in a tractor trailer and the difficulty in seeing a small object such as a motorcycle on the right side," impersonal circumstances directly attributable to the duties of his employment and clearly satisfying the "arising out of" prong of compensability. Employer's reliance on Hill City and Metcalf v. A.M. Exp. Moving Systems, Inc., 230 Va. 464, 339 S.E.2d 177 (1986), is misplaced. In contrast to the instant circumstances, claimants in both Hill City and Metcalf failed to establish the requisite nexus between the risks of employment and the assaults there in issue. Smithfield Packing Company, Inc. v. U. W. Carlton, Record No. 0402-98-1 (February 23, 1999).

Injury from Coworker's Friendly Clap on the Back not Compensable. While in the course of his employment as a police officer, claimant was approached by another police officer, who clapped claimant on the back and lower neck, as a form of greeting, without any intention to hurt claimant. Claimant felt immediate pain and later sought medical treatment for injuries sustained as a result of the incident. No evidence indicated that the officer who "clapped" claimant on the back and neck did so with any intent to engage in playful or prankish behavior, such that his actions could be considered horseplay. A clap on the back in greeting is more akin to the friendly "goosing" in [Richmond Newspapers v.] Hazelwood, [249 Va. 369, 457 S.E.2d 56 (1995)] than it is to horseplay, which is defined as "rough or boisterous play or pranks. "In addition, no evidence brought this case within the ambit of a compensable assault case. Rather, the undisputed evidence proved that the injury was caused by the personal greeting of one police officer to another and did not arise from an actual risk connected with claimant's employment. Contrary to claimant's argument, no evidence showed that the greeting was directed at claimant because of his employment as a police officer or that it benefited the employer in any manner. Accordingly, claimant's evidence did not sustained his burden of proving that his injury arose out of his employment. Donald James Johnson v. County of Henrico Police, Record No. 2266-99-2 (January 18, 2000). WP Version.

Benefits were properly denied to a truck driver, who, while making a delivery  heard someone tell him to wait while they got a key for the door. Claimant testified that he heard a voice from inside the building and heard some keys jingling, and the next thing he remembered was waking up in the hospital. When claimant woke up, he realized that his watch and wallet were missing. The incident was treated as a robbery and investigated by the police. There was no evidence tending to prove that he was targeted because of his employment as a truck driver. There was no evidence that claimant's assailant took any merchandise from claimant's truck, or even attempted to enter the truck. Nor was there any evidence presented regarding any previous assaults or criminal acts occurring behind this store. The fact that the assault took place behind the store, where the general public generally did not go, is insufficient. "'To qualify for workers' compensation benefits, an employee's injuries must result from an event "[a]rising out of" and "in the course of" the employment.' In determining if an accident arises out of the employment, Virginia applies the 'actual risk' test, which 'requires that the employment subject the employee to the particular danger that brought about his or her injury.'" Smithfield Packing Co., Inc. v. Carlton, 29 Va. App. 176, 181, 510 S.E.2d 740, 742 (1999) (quoting Lipsey v. Case, 248 Va. 59, 61, 445 S.E.2d 105, 106 (1994) (citations omitted)). "An accident arises out of the employment if a causal connection is established between the employee's injury and the conditions under which the employer required the work to be performed. The causative danger must be peculiar to the work and not common to the neighborhood." Roberson v. Whetsell, 21 Va. App. 268, 271, 463 S.E.2d 681, 682 (1995). "Moreover, the claimant has the burden of proving by a preponderance of the evidence that the injury was an actual risk of the employment." Hill City Trucking v. Christian, 238 Va. 735, 739, 385 S.E.2d 377, 379 (1989) (holding that a truck driver's injuries sustained during a robbery did not arise out of his employment as an over-the-road truck driver where there was no evidence establishing a nexus between the criminal act and his employment). "[T]o be entitled to an award arising from an assault, a claimant must establish 'that the assault was directed against him as an employee or because of his employment.'" Smithfield Packing, 29 Va. App. at 181, 510 S.E.2d at 742 (citation omitted). "The requisite nexus in an assault case is supplied if there is 'a showing that the probability of assault was augmented either because of the peculiar character of the claimant's job or because of the special liability to assault associated with the environment in which he must work.'" Jobs often held to pose a special risk of assault are those that involve working in or traveling through dangerous areas. Roberson, 21 Va. App. at 271, 463 S.E.2d at 683 (citation and footnote omitted).  Willard Y. Jefferies v. Richfood Holdings, Inc., Record No. 0707-99-2 (August 10, 1999). WP Version.

Sexual assaults. Sec. 65.2-301 provides that an employee who is sexually assaulted in the course of employment and promptly reports the assault to law enforcement, and where the nature of the employment substantially increases the risk of such assault. Otherwise, the test is the usual test in assault cases: whether the assault was directed against the employee as an employee or because of the employment as opposed to being personal in nature. Carr v. City of Norfolk, 15 Va. App. 266, 422 S.E.2d 417 (1992).

Death Presumption. Where 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 master's business at the time, the court will indulge the presumption that the relation of master and servant existed at the time of the accident, and that it arose out of and in the course of his employment. Sullivan v. Suffolk Peanut Co., 171 Va. 439, 444, 199 S.E. 504, 506 (1938). However, the death presumption applies only if there is an absence of evidence contrary to the conclusion that the death arose out of the employment. See Hopson v. Hungerford Coal Co., Inc., 187 Va. 299, 305, 46 S.E.2d 392, 394 (1948).

Claimant, a prison guard, testified that on the day he slipped on stairs, he had just acknowledged tower two, was descending the stairs, and was observing tower one when the accident occurred. Observation of the guard towers was one of the security functions of his employment. The way in which he performed this aspect of his job increased his risk of falling on this occasion and directly contributed to cause his fall and injury. Cf. United Parcel Service v. Fetterman, 230 Va. 257, 259, 336 S.E.2d 892, 893 (1985). He would not have been equally exposed to the risk apart from his duty to observe the guard towers and provide security at the facility. Cf. Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). Henderson's injury occurred because of the performance of his job duties in a particular manner. Therefore, the cause of the injury was not "unrelated to any hazard common to the workplace." United Parcel Service v. Fetterman, 230 Va. 257, 259, 336 S.E.2d 892, 893 (1985). Because claimant's employment exposed him to a danger that caused his injury, it arose out of his employment. Id.

Another employee was walking briskly, with her head turned away from claimant, and collided with claimant as she spoke to another employee in a hallway.  Credible evidence supports the commission's factual findings and related conclusion that claimant's injuries were caused by an actual risk of employment. The issue is not whether the accident is of the type that occur outside the workplace; the issue is whether the workplace, in the particular situation at hand, exposed the claimant to the risk of injury. In this case, the injury was caused by the inattentiveness of a co-employee. Accidents due to the negligence of co-workers historically have been found to arise out of the employment. See Goodyear Tire &Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987); Eastern State Hospital  v. Tenia P. Roberson, Record No. 2211-98-1 (January 19, 1999).

The commission could reasonably infer that a car salesman's employment-related need to rush to reach a customer first in order to have the opportunity to make a sale distracted him from focusing on the stairs, which caused him to fall and resulted in his injuries. The evidence supported an inference that conditions of the workplace either caused or contributed to claimant's injuries. Checkered Flag Motor Car Company v. Chettiar, Record No. 1290-99-1 (October 5, 1999). WP Version.

Claimant was injured when he jumped from a moving truck he was driving while in the course of his employment. Claimant stated that he had no steering and the brakes would not operate. As a result, claimant stated that the truck's speed increased and he became scared because he could not steer the truck around an upcoming curve. Consequently, he he made a "split second decision" to jump from the truck out of the passenger door. The back wheels of the truck ran over claimant, causing him to sustain severe injuries. Although claimant's account contains aspects which are not reasonable or plausible, this did not require the commission to reject the basic account of the accident which is supported by the evidence. The commission did not err, as a matter of law, by crediting claimant's account that he jumped from the truck while it was moving, regardless of the reason. The commission was entitled to weigh all of the evidence and to infer that the accident more than likely occurred because claimant shifted the truck out of gear on the hill (at most mere negligence and not willful misconduct) or it popped out of gear, causing him to lose control of the truck. R.S. Jones and Associates v. Timmy D. Dean, Record No. 2863-98-2 (June 29,1999). WP Version.

Animal Bites. In Lipsey v. Case, 248 Va. 59, 445 S.E.2d 105 (1994), claimant was a "working student." In exchange for performing duties on the farm, she received instruction on farm operation, riding lessons, and room and board. She shared living facilities with two other working students. A dog belonging to one of these students bit Lipsey on her face during a lunch break at the house. The Court held that while the injury occurred in the course of the employment it did not arise out of the employment. The Court found no causal connection between claimant's required work and her injury. See id. at 61-62, 445 S.E.2d at 107. Although the dog lived in the house and freely roamed the farm, the employer did not direct claimant to have physical contact with the dog.  

Claimant was an assistant school principal who was directed by the principal of the school, her supervisor, to go to a car in which the principal's daughter had brought a dog and "meet the dog." The assistant principal did so and the dog bit her on the nose. Claimant's contact with the dog, although not a part of her regular work duties, was in direct response to a demand of her supervisor. Thus, the commission did not err in concluding that claimant's evidence proved that her "injury resulted from an actual risk of her employment." In Arrington v. Murray, 182 Va. 1, 28 S.E.2d 19 (1943), the Supreme Court held that an injury arises out of the employment when the employee is performing work directed by one of the business partners, even if the work was not in the trade, business, or occupation of the employer but was personal to the partner and performed at his residence. See id. at 5, 28 S.E.2d at 20-21. The Supreme Court agreed with the commission that it would be inequitable to allow an employer to direct an employee to perform work and then deny that the employee was protected by the Virginia Workers' Compensation Act. See id. at 5, 28 S.E.2d at 21. Where the employee is injured while performing an activity that the employer has instructed him or her to do, that work constitutes part of an employee's employment responsibilities and required work, even though different from his or her usual and regular tasks performed in the employer's business. See Honaker & Feeney v. Hartley, 140 Va. 1, 13, 124 S.E. 220, 223 (1924). As one authority has noted, activity that is not an integral or normal part of the job becomes such where the employer's request clearly conveys the understanding that the employee was to take part in the activity. See 2 Arthur Larson, Larson's Workers' Compensation Law, Sec. 22.04(2) (1999). Prince William County School Board v. Fogarty, Record No. 1866-98-4 (August 31, 1999). WP Version.

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