Virginia Courts “Liberally Construe” the State’s Act—Not the Evidence Itself

Stressing that Virginia courts were required to “liberally construe” the state’s Workers’ Compensation Act, but not the evidence in the record before it, the Court of Appeals of Virginia affirmed the Commission’s denial of a limousine driver’s claim for benefits following a mysterious, one-vehicle accident that occurred while the driver was “on the clock” [Sorour v. Avalon Transp., LLC, 2019 Va. App. LEXIS 275 (Nov. 26, 2019). Noting that the driver had shown that his injuries occurred in the course of his employment, the appellate court agreed that he had failed to show that his injuries arose out of his employment.

Background

Claimant, a limousine driver, filed a claim for benefits, alleging he suffered a compensable injury on April 23, 2018, when he was involved in a one-vehicle car accident while “on the clock.” At a hearing, Claimant testified that he was operating his limousine between the time of two scheduled pickups when he received instructions to return to the employer’s office in Alexandria. As he exited Interstate 495, Claimant hit the guardrails on the exit ramp at about 10-15 miles per hour. Claimant testified that the impact caused him to hit his head on the windshield and his legs under the steering wheel, despite wearing a seatbelt. The airbags did not deploy.

Commission’s Decision

The deputy commissioner denied the claim and Claimant sought review with the Commission. The Commission affirmed, holding that Claimant’s evidence established only that his vehicle hit a guardrail on the exit ramp. The Commission held that the mere fact that Claimant’s vehicle was too close to the guardrail was not sufficient to explain what caused the accident. Accordingly, the Commission found that Claimant had not established the causal connection between his injury and the conditions under which his employer required the work to be performed. Claimant appealed.

“Arising Out of” and “In the Course of” are Not Synonymous Concepts

Initially, the Court noted in order to receive compensation under the Virginia Act, a claimant must satisfy both the “arising out of” and the “in the course of” prongs of the statutory requirements of compensability. The Court stressed that the two concepts were not synonymous; both conditions must be proved before compensation will be awarded.

Virginia’s “Actual Risk” Test

Applying the “actual risk” test, the Court observed that the general rule was 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. The Court added that notably, the actual risk test necessarily excluded an injury caused by a hazard to which the worker would have been equally exposed apart from the employment. Citing earlier precedent, the Court said the causative danger must be peculiar to the work and not “common to the neighborhood.”

Claimant Failed to Explain the Cause of the Accident

The Court concluded that Claimant’s testimony and evidence presented at the hearing before the deputy commissioner amounted to an assertion that the accident arose out of his employment simply because Claimant was driving in a company vehicle to the company’s office at the request of his manager. In other words, claimant argued that because he was where he was expected to be while driving a company vehicle, the injury arose out of his employment. That evidence was insufficient, said the Court. The evidence Claimant presented failed to prove by a preponderance how the accident occurred. Without more, this evidence fell short of Claimant’s statutory burden of providing the critical link between his employment and the resulting injuries.

Comment

This case continues a rather long line of Virginia cases in which compensation has been denied for “unexplained accidents,” as that term is discussed in Larson’s Workers’ Compensation Law, § 7.04, et seq. As observed in that text, in a pure unexplained fall or accident case, there is no way in which an award can be justified as a matter of causation theory except by a recognition that some sort of “but-for” reasoning satisfies the “arising” requirement. While a majority of states have chosen to employ what amounts to a positional risk theory in such cases, a healthy minority—e.g., Virginia—deny compensation in these sorts of cases.