                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Beales and Alston
UNPUBLISHED


              Argued at Richmond, Virginia


              CHARTER OAK FIRE INSURANCE COMPANY
                                                                                           MEMORANDUM OPINION BY
              v.            Record No. 1100-14-2                                           JUDGE ROSSIE D. ALSTON, JR.
                                                                                               FEBRUARY 24, 2015
              GREGORY MORGAN AND
               SANDRA CAUDILL


                                    FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                                           Bryan M. Kirchner (Emily O. Sealy; Midkiff, Muncie & Ross,
                                           P.C., on brief), for appellant.

                                           Matthew O’Herron (John R. Turbitt; Turbitt, O’Herron & Leach,
                                           PLLC, on brief), for appellees.


                            Charter Oak Fire Insurance Company (“insurer”) appeals a decision of the Workers’

              Compensation Commission (“the commission”) awarding Gregory Morgan and Sandra Caudill

              (“claimants”) benefits after finding that their injuries were compensable because they arose out

              of the claimants’ employment at ME Concrete (“employer”). On appeal, insurer argues that the

              commission erred in finding that the claimants sustained compensable injuries that arose out of

              their employment because “[t]he evidence did not show that anything about the employment

              created a risk peculiar to the employment such that the injuries could fairly be traced to the

              employment.” We disagree with insurer and, therefore, we affirm the commission’s awards.




                                                                          
                            
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                                               I. Background1

              On May 7, 2010, Ms. Caudill and Mr. Morgan were both injured after Josefina Morais,

wife of Jose Morais, owner of employer, accidentally drove her sports utility vehicle through a

brick-face wall of the office building in which Ms. Caudill and Mr. Morgan worked for

employer. Apparently Ms. Morais drove to employer that day to take her granddaughter to

surprise her mother and Ms. Morais’s daughter, Linda Quintela, who is also employer’s

manager. No explanation for the accident is evident from the record. In April and May of 2012,

both Mr. Morgan and Ms. Caudill filed claims for temporary total and temporary partial

disability benefits based on their injuries.2

              On January 11, 2013, Linda Quintela was deposed. As she did not witness the accident,

Ms. Quintela testified primarily regarding the layout of and daily traffic through employer’s

property. Ms. Quintela testified that employer sells concrete and does septic tank construction.

A driveway/gravel road leads from Route 28 onto employer’s property, ending at the office at the

back of the property. The office is one of three structures on employer’s property; the other two

are a septic tank building structure and a storage facility for materials. At the time of the

accident, employer owned seventeen concrete trucks, five dump trucks, and three septic tank

trucks. Ms. Quintela stated that both commercial and non-commercial vehicles access the

property from the driveway on a daily basis, traveling on and off of the property to load concrete
                                                            
              1
         As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
              2
          Specifically, on April 23, 2012, Mr. Morgan filed his claim for temporary total
disability benefits from May 11, 2010, through August 20, 2010, and temporary partial disability
from August 20, 2010, and continuing. On May 2, 2012, Ms. Caudill filed her claim for
temporary total disability benefits from May 7, 2010, to the present and continuing. On May 7,
2012, Mr. Morgan filed an amended claim for permanent benefits and a lifetime award of
medical benefits from May 7, 2010, and continuing.
                                                -2-
and go to job sites. Ms. Quintela estimated that approximately 50 to 100 vehicles enter

employer’s property on any given day. Typically, customers must come into the office to make a

purchase before conducting business on the property.

       Ms. Quintela testified that the office building in which claimants worked originally had

truck bays on one end of the building and a storage bay or open bay on the other. When

employer purchased the property, there were already plans to convert the storage bays to office

space, and in 2001, employer converted the bays by enclosing them with 2” x 4” boards and

drywall and configuring the interior as office space. The front of the building was covered with

“brick face.” As one entered the building through the glass doors at the front of the building,

there was an office on the left and an office to the right, closest to the building face. After

renovation, the building stood 120 feet long and 16 feet tall.

       A hearing before the deputy commissioner on Mr. Morgan’s and Ms. Caudill’s

consolidated claims was held on February 14, 2013. Ms. Quintela’s deposition was admitted

into evidence. Additionally, both Mr. Morgan and Ms. Caudill testified.

       Mr. Morgan testified that he began working for employer in 2003. His job duties

included ordering materials for the production of concrete and ready-mix, licensing and

registering of all vehicles, and hiring drivers. At the time of the accident, Mr. Morgan and

Ms. Caudill were working in an office space constructed in the renovated storage bay.

Mr. Morgan and Ms. Caudill were both required to work to the right of the office entrance,

closest to the building face. Both Mr. Morgan and Ms. Caudill sat at a desk that was attached to

the wall and wrapped around the inside of the front, brick wall. Mr. Morgan testified that there

was a loosely defined “parking area” outside the wall to which the desk was attached. There

were no designated parking spots or parking lines and no parking blocks or other barriers

between the parking area and the office building at the time of the accident. People would park
                                                 -3-
wherever they felt it appropriate, including along the same wall of the building that the vehicle

drove through.

       Mr. Morgan did testify that approximately two or three years prior to the accident on May

7, 2010, a large delivery truck rolled into the wall from the parking area. In that instance, the

delivery truck backed up to the front of the building to make a delivery in the office. The driver

failed to set the brake, and the truck rolled into the building, damaging the bricks and office door.

On another occasion, a parked vehicle rolled into the building. Apparently an employee parked a

flatbed truck outside the office and the truck “drifted into the building,” cracking a few bricks.

No one testified as to why this vehicle “drifted into the building.”

       On the day of the accident, Mr. Morgan testified that he and Ms. Caudill were sitting at

their desk when a SUV drove through the front wall of the office. Mr. Morgan testified that he

was at his desk on the phone with the post office and “the next thing [he knew] a vehicle came

through the wall and pushed the, the desk into [his] abdomen.” The vehicle forced Mr. Morgan

“all the way to the other side of the office.” Mr. Morgan “hit the copy machine and was just

thrown completely across the other side of the office with debris everywhere.” Mr. Morgan

injured his spleen, small and large intestines, pancreas, and his left shoulder. He also suffered a

collapsed lung, and had a pulmonary embolism. Mr. Morgan went back to work on August 21,

2010, and has increased his hours since then.

       Ms. Caudill testified that she worked for employer from April 2001 up until the accident.

Her position was dispatch and sales, which involved her answering the phone, taking customer

orders, dispatching tickets, and making sure that deliveries got to their destination on time.

Ms. Caudill testified to the same configuration of the office building and desk as Mr. Morgan.

At the time of the accident, Ms. Caudill was sitting at her desk on the telephone with a customer.

The next thing she remembers, someone told her not to move and she opened her eyes and she
                                                -4-
was on the floor. Ms. Caudill had no recollection of what hit her. The accident injured both of

Ms. Caudill’s legs, her left eye, the top of her head, her back, and her hip/buttocks area. Her

understanding of what occurred was that a “vehicle just drove into the building.”

       The deputy commissioner issued his opinion on April 16, 2013, denying both claims,

finding that Mr. Morgan’s and Ms. Caudill’s injuries did not arise out of their employment. The

deputy commissioner noted that “[i]t is an impermissible stretch to assert that working in an

enclosed brick building outside of which traffic may park makes its interior office space at a

higher risk and thus the workplace was a contributing proximate cause to a vehicle coming

through its walls.” Additionally the deputy commissioner held that “[i]t is not the position of

furniture in the office or its layout which can rehabilitate a lack of a causative danger to this

workplace.” Finally, “[d]riving all the way into a building through a brick wall is not something

reasonably foreseeable or anticipated, even though possible, and had not in that fashion ever

before occurred.”

       Both claimants sought review and on November 18, 2013, the full commission issued its

opinion reversing the deputy commissioner. The commission found that there were “other

factors involved in the accident beyond being struck by a car.” The commission noted that

                       The location of the office wall and its proximity to motor
               vehicles created a peculiar and unique risk of the claimants’
               employment. The claimants were required to work at a specific
               desk in the office that was attached to the front wall. The office’s
               proximity to the parking area made it more likely that the brick
               wall would be struck by vehicles. The construction of the brick
               wall made it more likely that the wall would be damaged or
               destroyed if struck, which placed those working behind it in
               danger. The absence of a curb, parking stops, or barriers was a
               unique risk of employment.

The commission also determined that driving through a brick wall was reasonably foreseeable

given that the wall had been damaged by other vehicles that struck it in the past and, because the


                                                 -5-
employer was on notice that a vehicle could strike the wall, “these elements created an enhanced

risk of employment.” Therefore, the commission remanded the matter to the deputy

commissioner for findings on disability. This appeal followed.

                                           II. Analysis

       “Whether an employee’s work-related injury arises out of his employment ‘involves a

mixed question of law and fact, which we review de novo on appeal.’” Turf Care, Inc. v.

Henson, 51 Va. App. 318, 324, 657 S.E.2d 787, 789 (2008) (quoting Blaustein v. Mitre Corp., 36

Va. App. 344, 348, 550 S.E.2d 336, 338 (2001)). “‘Decisions of the commission as to questions

of fact, if supported by credible evidence, are conclusive and binding on this Court.’” Id.

(quoting Basement Waterproofing v. Beland, 43 Va. App. 352, 358, 597 S.E.2d 286, 289

(2004)). “The commission’s determination regarding causation is a finding of fact and is binding

and conclusive.” Steadman v. Liberty Fabrics, Inc., 41 Va. App. 796, 803, 589 S.E.2d 465, 469

(2003) (citing Marcus v. Arlington County Bd. of Supervisors, 15 Va. App. 544, 551, 425 S.E.2d

525, 530 (1993)). “It thus makes no difference that ‘we would have decided the fact[s]

differently,’ . . . because the statute authorizes the commission to adopt whatever view of the

evidence it considers ‘most consistent with reason and justice[.]’” Thorpe v. Clary, 57 Va. App.

617, 623-24, 704 S.E.2d 611, 614 (2011) (citations omitted).

       “‘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.’” Liberty Mutual Ins. v. Herndon, 59 Va. App. 544, 556, 721 S.E.2d 32, 38 (2012)

(quoting United Parcel Serv. of Am. v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 893

(1985)). In considering the arising out of prong, we apply the “actual risk” test, which “‘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.’” Marion Corr. Treatment Ctr.
                                               -6-
v. Henderson, 20 Va. App. 477, 480, 458 S.E.2d 301, 303 (1995) (quoting Olsten v. Leftwich,

230 Va. 317, 319, 336 S.E.2d 893, 894 (1985)). As this Court has explained:

               “[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 applicable test] excludes an injury
               which cannot fairly be traced to the employment as a contributing
               proximate cause and 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 origins in a risk connected with the employment, and
               to have flowed from that source as a rational consequence.”

Herndon, 59 Va. App. at 556-57, 721 S.E.2d at 38 (quoting Simms v. Ruby Tuesday, Inc., 281

Va. 114, 122-23, 704 S.E.2d 359, 363 (2011)). However, “[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.” Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305,

306 (1989). “‘It is generally held that the phrase “arising out of” the employment should receive

a liberal construction in order to effectuate the humane and beneficent purposes of the Act.’”

Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 572, 159 S.E.2d 633, 636 (1968) (quoting Southern

Motor Lines v. Alvis, 200 Va. 168, 170-71, 104 S.E.2d 735, 738 (1958)).

       Employer argues that nothing about claimants’ jobs or workplace subjected them to any

greater risk of being hit by a vehicle than the risk generally “common to the neighborhood.” See

Herndon, 59 Va. App. at 557, 721 S.E.2d at 38. Claimants contend that the commission

appropriately found that the circumstances and location of their workplace, given that their office

was a converted office building in the middle of a storage bay where large trucks frequently

traveled, did in fact subject them to an increased risk of being hit by a vehicle.

                                                -7-
       Both parties note that the most factually similar case to the present one is Green Hand

Nursery, Inc. v. Loveless, 55 Va. App. 134, 684 S.E.2d 818 (2009), though they dispute its

applicability. In Loveless, claimant worked as an assistant manager at a nursery shop where she

would shut off sprinklers and take care of plants including watering, weeding, lifting, and

moving them. Id. at 138, 684 S.E.2d at 820. The nursery was located alongside Route 17, which

had a fifty-five mile-per-hour speed limit. Id. On the date of the accident, claimant was shutting

off the last of the sprinklers about twenty-seven feet from Route 17 when she heard screeching

tires and saw a vehicle “flying off” the highway. Id. at 139, 684 S.E.2d at 820. Claimant

attempted to run to the tree line for safety but the vehicle struck her about a foot from the trees.

Id. Claimant testified that she was hit about ten seconds after she first saw the vehicle and that as

she ran from it, she tried to avoid as many obstacles such as potted plants and slippery weed mats

on the ground as possible, though they did impede her path to the trees. Id. at 139, 684 S.E.2d at

820-21.

       The commission awarded benefits and this Court affirmed, finding that “claimant’s

performance of her job . . . increased the risk of injury by diverting attention from the danger of

the approaching vehicle.” Id. at 143, 684 S.E.2d at 823. The Court did note that “being struck

by a vehicle on the work premises alone does not establish the required causation,” however the

specific circumstances of claimant’s job in Loveless, such as her distraction with the sprinkler

and the obstacles which impeded her escape to safety, put claimant at an increased risk of injury.

Id. at 142, 684 S.E.2d at 822 (citations omitted). Therefore, “but for her job duties and the

physical obstacles confronting her, [claimant] could have avoided injury.” Id.

       We agree with the commission that the claimants sufficiently showed that their injuries

arose out of their employment based on the specific circumstances of their office location in this

case. Several facts unique to the claimants’ workspace lead us to this conclusion. For example,
                                                 -8-
much like in Loveless, the location, layout of, and traffic on employer’s property contributed to

the risk claimants faced when working at their desk station up against the brick façade of the

office building, as required by employer. Employer’s facility is located on ten acres of property

off of Route 28 and anywhere from 50 to 100 cement and septic trucks weighing a maximum of

64,000 pounds travel on, off, and within the property daily, along with other customers,’

employees,’ and relatives’ vehicles.3 When employer purchased the property, it converted truck

bays to office space by enclosing the bays with 2” x 4” boards and drywall and configuring the

interior as office space. Outside of the front/brick-faced side of the office building there was a

loosely defined parking area along the wall to which claimants’ desk was attached. The location

of claimants’ desk right up against the front of a structure directly next to an open and

unrestricted parking area “‘expose[d them] to a particular danger from which [they were] injured,

notwithstanding the exposure of the public generally to like risks.’” Marion Corr. Treatment

Ctr., 20 Va. App. at 480, 458 S.E.2d at 303 (quoting Olsten, 230 Va. at 319, 336 S.E.2d at 894).

              The proximity of the undefined parking area to the claimants’ workspace is also relevant.

Much like how the claimant in Loveless worked right along a busy road with a high speed limit,

in the present case, vehicles including large trucks frequently pulled right up to the office

building and parked in undefined areas a few feet if not inches from claimants’ workspace.

Additionally, there were no designated parking spots or parking lines and people, including

office employees, would park wherever they felt it appropriate. They could in fact park as close



                                                            
              3
         Employer argues that it is relevant to our analysis that the vehicle that crashed into the
office building and injured claimants was driven by a relative of an employee who was there on
personal and not professional business. We do not find this relevant to our inquiry as “[w]hat is
important . . . is that [claimants’] ‘work environment is such that [they are] exposed to the risk of
being injured in a vehicular accident by any negligent driver, whether a customer or a friend,
who comes into the premises for nothing other than a “chat.”’” Park Oil Co., Inc. v. Parham, 1
Va. App. 166, 169-70, 336 S.E.2d 531, 533 (1985) (citation omitted).
                                                 -9-
to the building as they wanted as there were no parking blocks or other barriers between the

parking area and the office building at the time of the accident.

              This close proximity of claimants’ workspace to the parking area also deprived claimants

of the opportunity to react quickly or escape injury in the face of danger. See Sears Roebuck &

Co. v. Martin, Record No. 2168-10-3, 2011 Va. App. LEXIS 162, at *12-13 (Va. Ct. App. May

10, 2011) (claimant injured after a customer’s vehicle crashed into the pick-up lobby of a Sears

where claimant was standing, directing customer’s vehicle in order to load merchandise, entitled

to benefits because his job and proximity to moving vehicles “exposed [claimant] ‘to a greater

risk of being injured in a vehicular accident such as the one that occurred’” (citation omitted)).4

At the time of the accident, both Mr. Morgan and Ms. Caudill testified that given their positions

at their desk, neither of them could see through the window closest to their desk and therefore,

they had no warning before Ms. Morais’s vehicle crashed through the wall. In Loveless, the

Court found the claimant’s distraction particularly relevant in determining that her injuries arose

out of her employment. Though not specifically a distraction in this case, the principle applies in

that due to the design of the building and its closeness to the parking area, claimants had no

warning of an incoming vehicle or time to attempt to escape to safety.

              Finally and most significantly, employer was not unaware of the potential hazard.

Though we do not apply a foreseeability standard in these cases, it is relevant that approximately

two or three years prior to this accident, a large delivery truck rolled into the wall from the

parking area and on another occasion, a parked vehicle rolled into the building. These previous

incidents made it unsurprising, if not quite likely, that a vehicle would again crash into the office

building, despite the brick façade. All of these factors – the previous incidents, the office
                                                            
              4
                   Although not binding precedent, unpublished opinions can be cited and considered for
their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350, 735 S.E.2d 255, 257
(2012) (citing Rule 5A:1(f)). 
                                          - 10 -
building’s location in the middle of a ten-acre graveled property with trucks and customers freely

driving throughout, the design and construction of the office building, claimants’ position within

the building at a desk situated up against the front wall, and lack of any defined or enclosed

parking area – lead us to conclude that claimants’ injuries arose out of their employment because

there was a “causal connection between the [claimants’ injuries] and the conditions under which

the employer require[d] the work to be performed.’” Herndon, 59 Va. App. at 556, 721 S.E.2d at

38 (quoting Fetterman, 230 Va. at 258, 336 S.E.2d at 893). Based on the facts of this case, the

commission’s decision was supported by credible evidence and, therefore, we affirm its awards.

                                                                                         Affirmed.




                                               - 11 -
