2.4 “Arising Out Of” Defined

• Library: Workers' Compensation Practice in Virginia (Virginia CLE) (2020 Ed.)

2.4 "ARISING OUT OF" DEFINED

2.401 In General. In Conner v. Bragg, ⁸⁹ the court cited with approval the widely accepted definition and test:

[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. 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

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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. ⁹⁰

The above-quoted language is known as the "actual risk test" that Virginia has adopted in determining whether an injury arises out of the employment. The Virginia Supreme Court repeatedly has held that a claimant must prove by a preponderance of the evidence that the employment at least in part caused the claimant's injuries. ⁹¹

In Southside Virginia Training Center v. Ellis, ⁹² the Virginia Court of Appeals ruled that "simple acts of walking, bending or turning, without any other contributing environmental factors, are not risks of employment." ⁹³ The court denied benefits where the employee's act of bending to pick up a food service tray was neither unusual, awkward, nor required to be done on a repetitive basis.

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In County of Chesterfield v. Johnson, ⁹⁴ the claimant was a water filter operator in a water treatment plant who accidentally injured his knee while at work. He descended the steps into the basement of the plant to turn off certain pumps. As he went back up the steps, he remembered he had to check a water meter chart in the basement. When he turned to go back down the steps, his knee gave way and he fell.

The Virginia Court of Appeals stated that "where in the furtherance of his employment the employee is exposed to a hazard which causes him injury, his injury is a cost of doing that business and is, therefore, compensable." ⁹⁵ The court also stated that "an injury arises out of the employment even if the employment does not enhance or increase the degree of the specific risk to which the employee is exposed. An injury is compensable so long as the risk causing the injury is produced by the employment." ⁹⁶ The court then concluded that the "employee was only required to show that his employment required him to use the steps as he did and that this, not some unknown cause, caused the injury to his knee." ⁹⁷

In evaluating whether this case represented a compensable injury arising out of the employment, the Virginia Supreme Court reviewed several prior opinions, including United Parcel Service v. Fetterman. ⁹⁸ In that case, a driver for United Parcel Service was in the act of unloading packages when he noticed that one of his shoelaces was untied. He raised his foot to the back of the truck and bent to tie his shoe. He felt an acute pain in his back. The court held that "an accident arises out of the employment when there is a causal connection between the claimant's injury and the conditions under which the employer requires the work to be performed." ⁹⁹ In addition, the court held that the "arising out of" test excludes "an injury which comes from a hazard to which the employee would have been exposed equally apart from

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the employment. The causative danger must be peculiar to the work, incidental to the character of the business and not independent of the masterservant relationship." ¹⁰⁰ Of course, the Supreme Court rejected Fetterman's claim for compensation benefits under these circumstances, because "every person who wears laced shoes must occasionally perform the act of retying the laces." ¹⁰¹

In Johnson, the Virginia Supreme Court ultimately concluded that the claimant failed to establish any connection between the steps and his injury, thereby reversing the Court of Appeals. Nowhere did Johnson show that his work environment contributed to his injury. The court stated that "the injury could just as well have occurred upon a turn on the floor." ¹⁰² The court further concluded that the Court of Appeals erred because the fact that Johnson was on a mission of his employer when he found it necessary to turn around had nothing to do with the conditions of the workplace; this only established the fact that the claimant was in the course of his employment. Relying upon its opinion in Reserve Life Insurance Co. v. Hosey, ¹⁰³ the Virginia Supreme Court noted that the claimant in Hosey sustained a compensable injury when ascending steps that were slightly higher than normal. The unusual nature of the steps was the crucial factor in the Supreme Court's recognition of the compensability of Hosey's injury. By contrast, in Johnson, there was nothing unusual about the steps nor was there any critical link between the environment of the workplace and the injury.

The same principle applies to claimants who trip on an object and fall. In Kelley v. Monticello Area Community Action Agency, ¹⁰⁴ the claimant

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tripped on a normal rug lying flat on the ground. The Virginia Court of Appeals affirmed the Commission's denial of the claim on the grounds that the rug was not defective and, thus, not an actual risk of employment.

In Plumb Rite Plumbing Service v. Barbour, ¹⁰⁵ an opinion that is consistent with Johnson, a plumber sustained a herniated disc while bending over to pick up a piece of plastic pipe. His injury occurred while bending and before touching or picking up the pipe. On the basis of this evidence, the Virginia Court of Appeals concluded that the claimant had not shown that the conditions of the workplace caused the injury and that the mere happening of an accident at the workplace, unrelated to a work-related risk, is not compensable.

In International Paper Co. v. Dehart, ¹⁰⁶ the Virginia Court of Appeals upheld the Commission's conclusion that the risk of the claimant's injury was within the ambit of risks to which the claimant was exposed as a result of the employment. Significantly, the Commission found that the claimant's testimony describing the task reasonably suggests strenuous activity immediately preceding his attempt to stand. Unlike Barbour, ¹⁰⁷ where the claimant was injured while bending down to pick up a piece of plastic pipe, credible evidence supported the Commission's finding that the claimant's injury was caused by the work-related risk of repeatedly bending over and lifting water bottles.

In Richard E. Brown, Inc. v. Caporaletti, ¹⁰⁸ the Virginia Court of Appeals held that the claimant had sustained a compensable accidental injury when, while installing a 100-pound furnace, he lowered the furnace to its side, leaned over it for four to five minutes while fitting the furnace into place, and was then unable to stand. ¹⁰⁹

The Virginia Court of Appeals frequently refers to Caporaletti in its decision in Grove v. Allied Signal, Inc. ¹¹⁰ In Grove, the claimant was a pipe

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fitter who injured his back while working in a crouched position repairing a pipe. The deputy commissioner found that the claimant had sufficiently proven that his injury was sustained while in the "process of bending, stooping, and using heavy pipes while in an awkward position," therefore bringing the injury within the definition of "arising out of" his employment for the purpose of awarding benefits under the Act. ¹¹¹ On review, the Virginia Court of Appeals emphasized the unique nature of the claimant's awkward work environment. The court found that regardless of whether the claimant was reaching for or lifting the pipe, the result was the same. ¹¹² The court further found that "[a]s in Caporaletti, the evidence in this record proves that [the claimant's] injury occurred during a work activity and was inextricably linked to the conditions in the workplace." ¹¹³ Therefore, the injury was compensable under the Act.

Coincidental episodes present the difficult question of whether an injury arises out of the employment. These cases include injuries occurring when (i) rising from a seated position; ¹¹⁴ (ii) kneeling down; ¹¹⁵ (iii) rising from a kneeling position; ¹¹⁶ (iv) bending; ¹¹⁷ and (v) twisting, leaning, or reaching. ¹¹⁸ The compensability of injuries sustained engaging in these motions turns on the particular facts of each case and the causal connection between the motions and the employment requirements.

It is clear that the determination of what is "a hazard to which the workmen would have been equally exposed apart from the employment" and what establishes a "causal connection between the conditions under which

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the work is required to be performed and the resulting injury" is a difficult one. As stated in Sullivan v. Suffolk Peanut Co.," the facts in no two cases are identical and to a certain extent each case must stand alone." ¹¹⁹

In First Federal Savings & Loan Ass'n v. Gryder, ¹²⁰ a bank employee was seated on a teller's stool that had a rim around the lower part of the stool approximately two feet off the ground. The claimant was wearing high-heeled shoes, and the shoes were hooked behind the rim of the stool. She testified that when the telephone rang, she shifted forward to grab a pencil and answer the call, thereby catching her heel in the rim. She...