                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Kelsey
Argued at Alexandria, Virginia


LABOR FINDERS OF VIRGINIA, INC. AND
 AMERICAN CASUALTY COMPANY
                                                              MEMORANDUM OPINION* BY
v.     Record No. 0295-04-4                                   JUDGE JAMES W. BENTON, JR.
                                                                  FEBRUARY 8, 2005
MARIO BALDIVIESO


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 Joshua M. Wulf (Semmes, Bowen & Semmes, on briefs), for
                 appellants.

                 Daniel P. Barrera (Chandler, Franklin & O’Bryan, on brief), for
                 appellee.


       Labor Finders of Virginia, Inc. and its insurer contend the Workers’ Compensation

Commission erred in ruling that Mario Baldivieso’s injury arose out of his employment. We

disagree and affirm the award.

                                                  I.

       On appeal from the commission’s decision, we view the evidence in the light most

favorable to Mario Baldivieso, who prevailed before the commission. Clinchfield Coal Co. v.

Reed, 40 Va. App. 69, 72, 577 S.E.2d 538, 539 (2003). So viewed, the evidence proved Waste

Management contacted Labor Finders on June 25, 2002 and arranged for the services of

Baldivieso as a temporary laborer on one of its trash collection trucks in Leesburg, Virginia.

When Waste Management’s operations manager drove Baldivieso and other temporary workers

to trucks at 7:45 a.m. to begin the day’s work, Baldivieso was wearing several shirts, which were

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
described as a tee shirt underneath a long-sleeved, light flannel shirt. Using a bilingual worker to

translate into Spanish, the manager urged Baldivieso and the other temporary workers to be wary

of the potential danger of the heat. Waste Management supplied a loose fitting, nylon safety vest

for Baldivieso to wear during his work.

       At 8:30 a.m., Baldivieso began working on a truck driven by Kiki Gouveia. Baldivieso’s

duties consisted of lifting trash cans and dumping the trash in the rear of the truck. As the truck

traversed a route that included 750 residential homes and commercial sites, Baldivieso stood on

the back step of the garbage truck, where there was no shade. For each unit, the trash ranges

from one bag to three or four cans. Gouveia testified that the trash bags weighed an average of

15 to 20 pounds; the managers testified that the trash bins weighed an average of 35 to 100

pounds.

       Gouveia testified that when Baldivieso arrived, he had already completed part of the

route and had about 600 sites remaining. He also testified that he would get out of the truck to

help Baldivieso about 95% of the time and said he completed much of the “heavier lifting”

himself. The manager estimated that because the driver and his helper customarily work

together, Baldivieso lifted 60 or 70% of the bags. Gouveia described Baldivieso as a “slow,

steady worker.”

       The weather was extremely hot and humid that day. The U.S. Department of Commerce

recorded that the temperature reached a high of 93 degrees at Dulles Airport with extremely high

levels of humidity. The manager’s report indicates the temperature reached 99 degrees in the

area and was very humid.

       At 11:00 a.m., Baldivieso joined Gouveia inside the truck while Gouveia drove to the

unloading station. Gouveia did not use the air conditioning inside the truck during this drive or

at anytime that day because it usually caused his truck to overheat. After unloading the truck,

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Gouveia stopped to replenish the truck’s five gallon water cooler, which was empty, and then

resumed work between 12:00 and 12:30 p.m. They did not stop for a formal lunch break because

Gouveia tried to complete the route as quickly as possible. Gouveia testified that he hustled and

“pushed to get [his] route completed” because his pay is the same regardless of the time he

expends. Baldivieso did not eat anything during the day.

       Gouveia testified that they took several breaks to drink water throughout the day from the

cooler mounted on the front of the truck. Although Waste Management provided Gatorade

powder to aid hydration, Gouveia did not use it and preferred to fill the truck’s cooler with ice

and water. Gouveia testified that Baldivieso was “drinking like a fish.”

       At 4:30 p.m., with approximately 20 minutes of work remaining, Gouveia noticed that

Baldivieso appeared to be having some difficulty. While he was sitting in the truck, Gouveia

observed that Baldivieso was “having some problems” at the rear of the truck. When Gouveia

approached Baldivieso, he appeared “disoriented,” was slurring his speech, and was shaking.

Gouveia testified that he did not have any earlier indication that Baldivieso was ill; however, due

to the language barrier they communicated essentially by gesturing.

       Gouveia called to request an ambulance to transport Baldivieso to a hospital. The

hospital report indicates that Baldivieso’s temperature was 109 degrees and that he had suffered

“probable heat stroke.” Baldivieso also had acute renal failure upon admission. Dr. Rosenthal

later diagnosed probable brain damage. Dr. Page Fletcher diagnosed Baldivieso as having

“post-traumatic dementia secondary to heat stroke.” Baldivieso has been confined to a nursing

home since his release from the hospital.

       The deputy commissioner found that Baldivieso performed medium to heavy labor

throughout the day in hot and humid conditions. He also ruled that Baldivieso suffered a heat

stroke as a result of this work activity. Relying on Imperial Trash Service v. Dotson, 18

                                            -3-
Va. App. 600, 445 S.E.2d 716 (1994), the deputy commissioner ruled that the evidence proved

Baldivieso suffered an injury by accident arising out of and in the course of his employment.

Thus, the deputy commissioner entered an award for temporary total disability and medical

benefits. On review, the commission adopted the deputy commissioner’s summary of the

evidence and rejected Labor Finders’ argument that the evidence failed to show extraordinary

environmental conditions or work conditions distinguishable from other outdoor workers.

          This appeal followed.

                                                  II.

          Determining whether an injury arose out of employment is a mixed question of law and

fact. Norfolk Community Hospital v. Smith, 33 Va. App. 1, 4, 531 S.E.2d 576, 578 (2000). On

appeal, we review questions of mixed law and fact de novo. Caplan v. Bogard, 264 Va. 219,

225, 563 S.E.2d 719, 722 (2002); Fairfax County School Board v. Rose, 29 Va. App. 32, 37, 509

S.E.2d 525, 527 (1999).

          To receive compensation for injuries, an employee must establish by preponderance of

the evidence that he suffered an injury by accident “arising out of and in the course of [his]

employment.” Code § 65.2-101. To prove an injury arose out of the employment, the evidence

must establish that the “conditions of the workplace . . . caused the injury.” Plumb Rite

Plumbing Serv. v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305, 306 (1989). In making this

determination, we employ the “actual risk test” to determine whether the employer exposed the

employee to “the particular danger causing the injury, notwithstanding the public’s exposure

generally to similar risks.” Kjellstrom v. Saunders, 42 Va. App. 673, 678, 594 S.E.2d 281, 283

(2004).

                 [The] “actual risk test,” mean[s] that the employment must expose
                 the employee to the particular danger causing the injury,
                 notwithstanding the public’s exposure generally to similar risks.
                 Thus, if there is a causal connection between [the employee’s]
                                            -4-
               injury and the conditions of her employment, then her injury arose
               out of her employment.

Combs v. Virginia Power, 259 Va. 503, 510, 525 S.E.2d 278, 282 (2000) (citation omitted).

       The principle is well established that compensation may be granted to an employee who

suffered heat stroke as a result of exposure during working conditions. In Byrd v. Stonega Coke

& Coal Co., 182 Va. 212, 28 S.E.2d 725 (1944), an employee collapsed while removing coke

from a hot oven for more than ten hours. The Supreme Court affirmed the award of

compensation, concluding that the employee’s death “was the result of the conditions under

which [he] was required to perform the duties of his employment.” Id. at 221, 28 S.E.2d at 729.

Noting that Byrd is the “leading heat stroke case,” we applied its rationale in Kjellstrom, where

the employee was working as a “traffic flagger” on asphalt in extremely hot and humid

conditions. 42 Va. App. at 679, 594 S.E.2d at 283. The evidence proved the employee was

unable to take a break and collapsed after working seven hours. Affirming the award of

compensation, we noted that “the commission found his exposure to the sun was beyond the

norm” since he worked “in the open, in the sun, on asphalt and concrete, with no relief afforded

by [his] employer.” Id. at 680, 594 S.E.2d at 284.

       Labor Finders argues that Baldivieso’s injury did not arise out of the employment

because the evidence is insufficient to support a finding of extraordinary working conditions. In

Dotson, we addressed a factual circumstance almost identical to this case, where the employer

similarly argued that “the nature of [the employee’s] duties did not place him at greater risk for

heatstroke beyond that to which the public is normally exposed.” 18 Va. App. at 603, 445

S.E.2d at 718. There, we held the record supported the commission’s finding, including the

following:

                  The commission found that Dotson’s employment exposed him
               to hazards over and above those to which the public is exposed.
               The commission noted that “the public at large was not working
                                            -5-
               within the confines of a [non-air-conditioned] truck, repeatedly
               getting into and out of a truck, nor emptying from 350 to 400
               containers into [it] . . . . This work was performed in temperatures
               which had reached almost 90 degrees at the time Dotson collapsed.
               In addition, the humidity had reached approximately 57 percent.”

               The commission could find, as it did, that the combination of the
               heat, the humidity, the physical exertion, and working in the
               non-air-conditioned truck caused Dotson to become dehydrated
               and to suffer a heatstroke.

Id. at 604-05, 445 S.E.2d at 719. As the Supreme Court has often repeated, an 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.” Combs, 259 Va. at 509, 525 S.E.2d at 282 (citation

omitted); accord United Parcel Serv. of Am. v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892,

893 (1985); Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938).

       In this case, the commission found that Baldivieso suffered a heatstroke under similar

conditions as Dotson and that it was caused by the working conditions. In particular, the

commission made the following findings:

                  [Baldivieso] worked a long day on June 25, 2002, in
               temperatures that were very hot. The weather records from Dulles
               International Airport showed a high of 93 degrees, and the witness
               testimony showed that the temperatures and humidity on the
               claimant’s route made the weather “very stuffy and hot” and
               “extremely hot.” [Baldivieso] spent most of the day walking
               alongside the truck, picking up trash bags, or riding on the back of
               the truck between pickups. It is not speculative to conclude that
               the roadways used for the route were not shaded. As for the site of
               the accident, the evidence showed that it was a new development
               that was “wide open” and without tree cover. Finally, and
               importantly, [Baldivieso’s] temperature at the scene was noted to
               be 109 degrees, which obviously is not a condition commonly
               experienced by other outdoor workers.

                  . . . In conclusion, the evidence was clear that [Baldivieso]
               suffered a heat stroke on June 25, 2002, as a result of his
               employment. The injury was the result of working outside on a
               very hot day in summer, when the majority of his time was spent

                                           -6-
              either walking alongside a trash truck, picking up and throwing
              trash into the truck, or riding on the back of the truck. Unlike other
              workers, he was not protected from the elements, and at the time of
              the accident, his body temperature was 109 degrees. Finally,
              Dr. Rosenthal noted on September 13, 2002, that the heat stroke
              was caused by his work and there was no reason for his heat stroke
              other than his work.

       We hold that this credible evidence in the record supports the commission’s findings that

Baldivieso’s injury by accident arose out of his employment. Accordingly, we affirm the

commission’s award.

                                                                                       Affirmed.




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