                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Frank and Senior Judge Hodges
Argued at Salem, Virginia


ROYSTER CLARK, INCORPORATED
 AND LEGION INSURANCE COMPANY
                                           MEMORANDUM OPINION * BY
v.   Record No. 1031-99-3                 JUDGE SAM W. COLEMAN III
                                              DECEMBER 14, 1999
CHARLES D. BAYS


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            Mark S. Davis (Nancy C. Auth; Carr & Porter,
            L.L.C., on briefs), for appellants.

            Richard M. Thomas (Rider, Thomas, Cleaveland,
            Ferris & Eakin, on brief), for appellee.


     Royster Clark, Incorporated and Legion Insurance Company

appeal the Workers' Compensation Commission's decision awarding

Charles D. Bays benefits for injuries sustained in an automobile

accident.   The commission held that the automobile accident "arose

out of" Bays' employment.   We agree and affirm the commission's

decision.

                             BACKGROUND

     In January 1998, Bays was employed as a salesman for Royster

Clark, a farming supply distributor.   Bays' sales area consisted

of a large portion of western and southwestern Virginia.    Royster


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Clark routinely provided Bays a vehicle to travel his sales area

and to make sales calls to regular and prospective customers.

Bays traveled approximately 35,000 miles per year for Royster

Clark.   When not calling upon customers, Bays worked from his

home, where Royster Clark furnished him a telephone, fax machine,

copier, and typewriter.

     On January 21, 1998, Bays made a sales trip to several

localities in southwest Virginia.    While calling on a customer at

Gate City, Bays, who had been diabetic for more than twenty years,

felt his blood sugar "getting low."      Based on past experience,

Bays knew that his thought process could become impaired.

Nevertheless, he continued the meeting with his client and planned

to get a Coke from a vending machine at the first opportunity in

order to elevate his blood sugar level.     When Bays did so, he

mistakenly purchased a Diet Coke.    Believing that he had corrected

the diabetic problem, Bays got into his vehicle and began the

drive to his next destination.    If time permitted, Bays was

planning to visit another customer; if not, Bays would return to

his home office in Salem.   After Bays traveled just a few miles,

he drove off the road, hitting a tree and severely injuring

himself.   Bays suffered a cervical vertebral fracture, resulting

in quadriplegia.




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                              ANALYSIS

     Royster Clark concedes that Bays suffered an injury

occurring "in the course of" his employment, but asserts that

Bays failed to prove that his accident "arose out of" his

employment.   Royster Clark argues that Bays was responsible for

exposing himself to an increased risk of injury by driving when

he knew that he was impaired and that this increased risk was

not peculiar to his employment but was solely related to his

diabetic condition.    In addition, Royster Clark argues that the

commission erred in describing Bays' diabetic condition as

idiopathic.

     On appeal, we view the evidence in the light most favorable

to Bays, the prevailing party.     See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788-89 (1990).

We accept the commission's factual findings when they are

supported by credible evidence.     See James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

"This Court is not bound by the legal determinations made by the

commission.   '[W]e must inquire to determine if the correct

legal conclusion has been reached.'"     Cibula v. Allied Fibers &

Plastics, 14 Va. App. 319, 324, 416 S.E.2d 708, 711 (1992)

(quoting City of Norfolk v. Bennett, 205 Va. 877, 880, 140

S.E.2d 655, 657 (1965)), aff'd, 245 Va. 337, 428 S.E.2d 905

(1993) (per curiam).    "Whether an injury arises out of the


                                 - 3 -
employment is a mixed question of law and fact . . . ."     Plumb

Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d

305, 305 (1989).

     In order for an injured worker to recover under the Act,

the claimant must prove an injury by accident "arising out of

and in the course of the employment."   Code § 65.2-101.   "The

phrases arising 'out of' and arising 'in the course of' are

separate and distinct."   County of Chesterfield v. Johnson, 237

Va. 180, 183, 376 S.E.2d 73, 74 (1989).    "The phrase arising

'out of' refers to the origin or cause of the injury."     See id.

"An injury 'arises out of' the employment if a causal connection

exists between the claimant's injury and 'the conditions under

which the employer requires the work to be performed' or a

'significant work related exertion.'"     Bassett-Walker, Inc. v.

Wyatt, 26 Va. App. 87, 92, 493 S.E.2d 384, 387 (1997) (en banc)

(quoting Grove v. Allied Signal, Inc., 15 Va. App. 17, 19, 421

S.E.2d 32, 34 (1992)).

          An injury does not arise out of one's
          employment if it is caused by "a hazard to
          which the employee would have been equally
          exposed apart from the employment."
          However, if an injury "has followed as a
          natural incident of the work and has been a
          result of an exposure occasioned by the
          nature of the employment," then the injury
          "arises out of" the employment.

Marion Correctional Treatment Center v. Henderson, 20 Va. App.

477, 480, 458 S.E.2d 301, 303 (1995) (citations omitted).


                               - 4 -
     Virginia has adopted the "actual risk" test and has

rejected the "positional risk" test followed by other

jurisdictions in determining whether an injury arises out of the

employment.   See Johnson, 237 Va. at 185, 376 S.E.2d at 75-76.

The positional risk doctrine generally requires only that the

injured employee prove that the injury occurred during the time

and at the place of employment.   See id.; see also Hill City

Trucking v. Christian, 238 Va. 735, 740, 385 S.E.2d 377, 380

(1989); Zahner v. Pathmark Stores, Inc., 729 A.2d 478, 479 (N.J.

Super. Ct. 1999) (claimant need prove only "probably more true

than not that the injury would have occurred during the time and

place of employment rather than somewhere else").   In order to

be compensable under the actual risk test, "the origin or cause

of the injury" must be a risk connected with the employment.

"That risk must be an 'actual risk' of employment, not merely

the risk of being injured while at work."   Taylor v. Mobil

Corp., 248 Va. 101, 107, 444 S.E.2d 705, 708 (1994).    The actual

risk test "'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.'"   Olsten v. Leftwich, 230 Va. 317, 319, 336 S.E.2d 893,

894 (1985) (quoting Lucas v. Lucas, 212 Va. 561, 563, 186 S.E.2d

63, 64 (1972)).   "[A]n injury 'arises "out of" the employment,

when there is apparent to the rational mind upon consideration


                               - 5 -
of all the circumstances, a causal connection between the

conditions under which the work is required to be performed and

the resulting injury.'"   Bradshaw v. Aronovitch, 170 Va. 329,

335, 196 S.E. 684, 686 (1938) (citation omitted).

     Royster Clark employed Bays as a salesman.     The employer

required that Bays travel to meet with customers in the western

and the southwestern part of Virginia and provided him a car for

his travel.   Traveling in his automobile to call upon customers

was a condition of work performed by Bays which exposed him to

the risk of an accident each time he traveled.    Because Bays'

employment exposed him to the danger that caused his injury, his

injury by accident arose out of his employment.     See PYA/Monarch

and Reliance Ins. Co. v. Harris, 22 Va. App. 215, 222-23, 468

S.E.2d 688, 691 (1996).   The injury that Bays suffered, a

cervical vertebral fracture, was a result of the automobile

colliding with a tree, a risk that was directly associated with

his employment as a traveling salesman.

     The employer argues, however, that it was Bays' diabetic

condition that caused the accident, not a risk associated with

his employment; thus, Bays' injuries are not compensable.

However, for workers' compensation purposes, we are not so much

concerned with the cause of an accident as we are with whether a

causal relation exists between the injury and the employment.

Although Bays' diabetic condition may have caused the accident,


                               - 6 -
the nature of Bays' employment, specifically the requirement

that he routinely travel, contributed to the risk of injury by

an automobile accident.   Bays' injuries were not limited to

those he might have suffered solely as a result of a diabetic

blackout; the cervical vertebral fracture was a result of the

automobile accident.   As we explained in PYA/Monarch, "[w]hen an

employee's injuries result from [a pre-existing personal disease

of the employee] and no other factors intervene or operate to

cause or contribute to the injuries sustained . . . , no award

shall be made."   22 Va. App. at 222, 468 S.E.2d at 691.

"However, 'the effects [an accident caused by a pre-existing

condition or] idiopathic fall are compensable if the employment

places the employee in a position increasing the dangerous

effects of" the accident.   Id.    Because Bays' employment

subjected him to the risk of injury by accident and increased

the dangerous effects of the injury that he received, Bays'

injury arose out of his employment.

     Finally, the employer argues that our Supreme Court held in

Immer & Company v. Brosnahan, 207 Va. 720, 152 S.E.2d 254

(1967), that before the effects of a pre-existing condition can

be excused as having caused the accident, the condition must

have occurred "suddenly and without expectation."    The employer

argues that Bays' diabetic episode occurred before he entered

his vehicle and was not "suddenly and without expectation."    We


                                  - 7 -
do not find that the Supreme Court adopted such a requirement in

Immer.    Although such language was included in a quote from a

case cited with approval in Immer, 207 Va. at 727, 152 S.E.2d at

259; Tapp v. Tapp, 236 S.W.2d 977 (Tenn. 1951), the Court did

not require that the pre-existing condition occur "suddenly and

without expectation."   In fact, the Court, as we do here,

focused upon whether "the employment places the employee in a

position increasing the dangerous effects of such [an injury]

. . . in a moving vehicle."    Immer, 207 Va. at 726, 152 S.E.2d

at 258.

     The commission did not err in its award of benefits;

therefore, we affirm the decision.

                                                         Affirmed.




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