INJURY ARISING OUT OF EMPLOYMENT
Simms v. Ruby Tuesdays, Inc., 679 S.E.2d 555, 54 Va. App. 388 (Va. App., 2009)
The Court of Appeals affirmed the decision of the Workers’ Compensation Commission which found the Claimant’s injury did not arise out of employment. The Claimant filed a claim for benefits for an injury that occurred at work and involved horseplay. Claimant’s co-workers repeatedly threw ice at him and at one point, he raised his arm to block the ice from hitting face and as he was doing so, he dislocated his shoulder. As a result, Claimant underwent surgery for the injury to his shoulder. Claimant subsequently filed a claim for benefits for total temporary disability for five months, and for continuing lifetime medical benefits.
The deputy commissioner found that the claimant was an innocent victim of horseplay and, deciding that the case of Dublin Garment Co. v. Jones, 2 Va.App. 165, 342 S.E.2d 638 (1986) controlled the claim, held that the Claimant suffered an injury by accident that arose out of the normal course of ordinary events. The Commission reversed this decision and noted that since the deputy commissioner rendered his decision, the Supreme Court of Virginia issued Hilton v. Martin, 275 Va. 176, 654 S.E.2d 572 (2008), a case that “materially changed the `innocent victim of horseplay’ law.” In Hilton, an EMT’s co-worker, known for being immature and playful, used defibrillator paddles on her which resulted in her eventual death. The Virginia Supreme Court held that this was not an injury within the course of the decedent’s employment because it was a personal assault, and not one directed at her as an employee or under conditions which the employer requires work to be done.
Relying on Hilton, the commission concluded that it was immaterial whether the claimant’s co-workers were playful or hostile because they were using ice, a tool of the restaurant business, in an unauthorized manner. Their unauthorized use of the employer’s ice against the claimant in a playful manner, without his consent, was horseplay. However, there was no connection between the conditions under which the employer required the work to be performed and the assault by the co-workers and therefore this injury was not an injury by accident arising out of employment.
The Court of Appeals, in affirming the Commission’s decision, held that “if the assault is personal to the employee and not directed against him as an employee or because of his employment, the [resulting] injury does not arise out of employment.” As an innocent victim of horseplay, under Hilton, the Claimant did not sustain an injury arising out of the workplace.
American Trucking Association, Inc. v. Stallings, Record No. 0980-09-4 (Va. App. 2/23/2010) (Va. App., 2010)
The Court of Appeals affirmed the Commission’s finding that Claimant sustained an injury on Employer’s “extended premises.” On December 5, 2007, Claimant walked to a nearby restaurant for lunch and intended to return to work using the building’s west entrance. The weather was snowy that day. After exiting the public street and walking past the electronic card reader and gate that control access to the building’s paved driveway and underground garage, claimant slipped on ice on the ground. Employer defended Claimant’s claim for benefits on the basis that Claimant did not sustain an injury arising out of and in the court of employment.
An injury incurred while going to or from work generally is not compensable. Additionally, employment under the Virginia Workers’ Compensation Act “include[s] a reasonable interval of time” for “entry upon and departure from the place of employment. In finding for the Claimant, the deputy commissioner applied Prince v. Pan American Airways, 6 Va. App. 268, 368 S.E.2d 96 (1988), in which it was found that the claimant slipped on the icy walkway five feet from the entrance of the building leased by her employer, and the injury was compensable because the walkway where she fell was “in such proximity and relation as to be in practical effect a part of the employers” premises.
In this case, the Commission found, and the Court of Appeals agreed, that the relevant inquiry is where the Claimant sustained her injuries, and the “extended premises” doctrine is not limited to sidewalks. Here, the Claimant fell when she had just left the public street and stepped onto the paved driveway leading to the building, which was essentially an easement and a place where the employee had a right to be. Since this was an area where the claimant was reasonably expected to be, the Court found that the Claimant was injured on the employer’s extended premises and the Claimant was thus entitled to medical benefits.
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