                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Chafin and O’Brien
              Argued at Williamsburg, Virginia
UNPUBLISHED




              CITY OF VIRGINIA BEACH
                                                                              MEMORANDUM OPINION* BY
              v.     Record No. 1531-18-1                                     JUDGE TERESA M. CHAFIN
                                                                                 FEBRUARY 26, 2019
              NORA HAMEL


                             FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                                Kathleen Keffer, Assistant City Attorney (Mark D. Stiles, City
                                Attorney; Christopher S. Boynton, Deputy City Attorney, on brief),
                                for appellant.

                                No brief or argument for appellee.


                     The City of Virginia Beach (“the City”) appeals a decision of the Workers’

              Compensation Commission awarding benefits to Nora Hamel for injuries sustained on August 1,

              2016. On appeal, the City contends that the Commission erred by determining that Hamel’s

              injuries arose out of her employment. For the following reasons, we reverse the Commission’s

              decision.

                                                        I. BACKGROUND

                     On appeal from a decision of the Workers’ Compensation Commission, the evidence and

              all reasonable inferences that may be drawn from that evidence are viewed in the light most

              favorable to the party prevailing below. Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72

              (2003). So viewed, the evidence establishes that on August 1, 2016, Hamel was employed by the

              City as a licensed professional counselor in its Department of Human Services. As part of her



                     *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
employment, Hamel was required to attend an off-site mandatory training at a community

college.

       When Hamel arrived on campus, she parked her vehicle “really far” from the building

and asked for directions to the building in which the training was being held. As Hamel

approached the building, she stepped over a curb into a grassy area containing exposed tree

roots. Hamel tripped twice and fell over one of two raised tree roots and incurred injuries to her

face, head, right shoulder, right wrist, right hand, and cervical and lumbar regions. The tree roots

protruded approximately two inches above the ground. Hamel testified that she did not see the

tree roots before tripping.

       Hamel filed applications seeking lifetime medical and temporary total disability benefits

from August 1, 2016 through December 16, 2016. The parties stipulated that if Hamel was

disabled as a result of the accident, she was entitled to temporary total disability benefits for that

time period.

       During the March 15, 2017 hearing before the deputy commissioner, Hamel agreed that

she was not told where to park or assigned parking for the training. Further, she stated that there

were other available routes to the building in which the training was to be held and that there was

nothing defective about the sidewalk. The City contended that Hamel’s injuries did not arise out

of her employment because there was no causal connection between her work conditions and her

purported injuries.

       In his May 16, 2017 decision, the deputy commissioner found that Hamel “failed to prove

by a preponderance of the evidence that her fall and resulting injuries arose out of a risk peculiar

to her employment.” The deputy commissioner went on to find that Hamel “failed to prove the

existence of a ‘critical link’ between her attendance at the mandatory training and the necessity

of traversing over the specific grassy area with raised roots that caused her to trip and fall.”

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       Hamel requested review by the full Commission. She contended that proof of a “critical

link” between her attendance at the training and the way she walked to the building was

unnecessary as Virginia does not subscribe to the contributory negligence doctrine under the

Virginia Workers’ Compensation Act. Hamel claimed that she was required to cross the parking

lot to attend the mandatory training, and therefore, tripping over the root was a “risk of

employment” under the actual risk test.

       On January 3, 2018, the full Commission reversed the deputy commissioner’s May 16,

2017 opinion. The Commission disagreed with the City’s contention that the “going and coming

rule” prevented Hamel’s injury from arising out of employment and applied the “special errand”

exception to Hamel’s incident, ruling that she did, in fact, suffer injuries in the course of her

employment. Because she was required to attend the off-premises training, Hamel was “in the

course of employment” until she returned to her regular workplace or home. The Commission

further rejected the City’s contention that “compensability necessitates a risk that is ‘unique’ to

the employment or is one to which the general public is not also exposed.” Hamel’s claim was

remanded to the deputy commissioner for further findings as to “the extent of the claimant’s

causally related injuries and her request for approval of additional medical treatment and

surgery.”

       The deputy commissioner found on remand in his March 27, 2018 decision that Hamel

had, in fact, suffered compensable injuries to her right hand, right wrist, right shoulder, head, and

neck and that “all treatment represented in [Hamel’s medical records] . . . was reasonable,

necessary, and causally related to [her] August 1, 2016 fall.”

       The City requested that the full Commission once again review its finding that Hamel’s

injuries arose out of her employment. The Commission declined to reconsider its January 3,

2018 opinion finding that “the exposed tree roots and uneven surface [Hamel] was walking

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across constituted a risk of employment, and caused injuries that arose out of her employment.”

The Commission affirmed the deputy commissioner’s March 27, 2018 decision.

       The City now appeals to this Court.

                                         II. ANALYSIS

       On appeal, the City challenges the Commission’s decisions finding that Hamel’s injuries

arose out of her employment. Specifically, the City argues that Hamel failed to establish a causal

connection between a special risk to her employment with the City and her injury. For the

reasons that follow, we agree with the City’s position and reverse the Commission’s holding.

       “The question of ‘[w]hether an accident arises out of the employment is a mixed question

of law and fact.’” Cleveland v. Food Lion L.L.C., 43 Va. App. 514, 518 (2004) (quoting Plumb

Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 483 (1989)). This Court is bound by the

Commission’s underlying factual findings if those findings are supported by credible evidence.

See Artis v. Ottenberg’s Bakers, Inc., 45 Va. App. 72, 83-84 (2005) (en banc). However, we

review de novo the Commission’s definitive decision with regard to whether the accident arose

out of Hamel’s employment with the City. See Caplan v. Bogard, 264 Va. 219, 225 (2002).

               For an injury to be compensable under the Workers’ Compensation
               Act [(“Act”)], the claimant must prove by a preponderance of the
               evidence three elements: (1) that the injury was caused by an
               accident; (2) that the injury was sustained in the course of
               employment; and (3) that the injury arose out of the employment.

Snyder v. City of Richmond Police Dept., 62 Va. App. 405, 412 (2013) (quoting Southland Corp.

v. Parson, 1 Va. App. 281, 283-84 (1985)). “The concepts ‘arising out of” and ‘in the course of’

employment are not synonymous and both conditions must be proved before compensation will

be awarded.” Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 433 (1993) (en banc) (quoting

Bradshaw v. Aronovitch, 170 Va. 329, 335-36 (1938)). In this case, there is no question that

Hamel sustained injuries due to an accident that occurred in the course of her employment.

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Thus, the sole issue we address on appeal is whether Hamel’s injuries arose out of her

employment with the City.

        This Court has held that “[a]n 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 Mut. Ins. Corp. v. Herndon, 59 Va. App. 544, 556

(2012) (citation omitted). In order to ascertain whether such a causal connection exists, Virginia

applies the “actual risk test.” Id.

                “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 [the applicable 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. 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.”

Snyder, 62 Va. App. at 413 (alteration in original) (quoting Simms v. Ruby Tuesday, Inc., 281

Va. 114, 122-23 (2011)).

        “[W]here a claimant has sufficiently proved the existence of a causal relationship

between the injury and a hazard in the workplace that is ‘uniquely dangerous and not something

that would routinely be encountered by anyone,’ the injury necessarily arises out of the

employment.” Herndon, 59 Va. App. at 559 (quoting Turf Care v. Henson, 51 Va. App. 318,

326 (2008)). “If, however, a claimant cannot establish a causal relationship between a purported

work hazard and his injury, the claimant cannot recover under the Workers’ Compensation Act.”

Id.

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        The City contends on appeal that Hamel failed to establish a causal connection between a

special risk to her employment and her injury, as the deputy commissioner initially found in this

case. Hamel was unsuccessful in proving a “critical link” between her attendance at the training

and the necessity of walking over the grassy area with raised tree roots that caused her to fall.

Applying the actual risk test to the facts of this case, it is clear that Hamel’s injuries did not arise

out of her employment with the City. While the training attended by Hamel was deemed

mandatory by her employer, the City did not instruct her where to park or which route to take to

the building in which the training was being held. There were no parking permits issued or

parking spaces assigned to City employees and others attending the training on campus.

Therefore, Hamel’s risk of tripping over the tree roots was equal to that of any member of the

general public walking on the unpaved area adjacent to the sidewalk. The fact that Hamel was

mandated to be on campus by the City did not create a causal relationship between a special risk

of her employment and her injury. Hamel’s injuries were, thus, not compensable. See Hercules,

Inc. v. Stump, 2 Va. App. 77, 79 (1986) (“Risks to which all persons similarly situated are

equally exposed and not traceable to some special degree to the particular employment” are not

compensable. (quoting Dreyfus & Co. v. Meade, 142 Va. 567, 570 (1925))).

                                         III. CONCLUSION

        For the above-stated reasons, we hold that the Commission erred in holding that Hamel’s

injuries arose out of a risk of her employment with the City. We, therefore, reverse the holding

of the Commission.

                                                                                              Reversed.




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