                                                                       COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, Chafin and Malveaux
              Argued at Salem, Virginia
UNPUBLISHED




              LYNCHBURG GENERAL HOSPITAL AND
               SENTRY INSURANCE CO.
                                                                                             MEMORANDUM OPINION* BY
              v.            Record No. 1479-17-3                                              JUDGE TERESA M. CHAFIN
                                                                                                   APRIL 10, 2018
              ZACHARY D. FOSTER


                                    FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                                           Jesse F. Narron (K. Elizabeth Kendall; Penn, Stuart & Eskridge, on
                                           briefs), for appellants.

                                           B. Patrick Agnew (Agnew, Johnson & Rosenberger PLLC, on brief),
                                           for appellee.


                            Lynchburg General Hospital and Sentry Casualty Co. (collectively “Lynchburg General”)

              appeal the decision of the Virginia Workers’ Compensation Commission (“the Commission”)

              granting Zachary Foster benefits for head and brain injuries resulting from a vasovagal syncopal

              episode on July 1, 2016. On appeal, Lynchburg General contends that the Commission erred in

              (1) finding sufficient evidence to support a finding that Foster sustained a compensable injury by

              accident arising out of his employment, and in (2) relying on inferences to establish the alleged

              cause of Foster’s vasovagal syncopal episode in light of the lack of medical evidence establishing

              causation. For the reasons that follow, we reverse the decision of the Commission.

                                                                                Background

                            “On appeal, this Court views the evidence in the light most favorable to . . . the prevailing

              party below.” Hess v. Va. State Police, 68 Va. App. 190, 194, 806 S.E.2d 413, 415 (2017)

                                                                          
                            *
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(quoting Advance Auto & Indem. Ins. Co. v. Craft, 63 Va. App. 502, 508, 759 S.E.2d 17, 20

(2014)). “[F]actual findings of the [C]omission will not be disturbed if based on credible

evidence.” Id. (quoting Anthony v. Fairfax Cty. Dep’t of Family Servs., 36 Va. App. 98, 103,

548 S.E.2d 273, 275 (2001)). The facts in this case are not in dispute.

              On July 1, 2016, Foster, an emergency room paramedic, assisted a physician with a

lumbar puncture procedure.1 Foster stood in front of the patient to stabilize him during the

procedure. As the physician started to insert the needle into the patient’s spine, Foster testified

that he felt “light-headed” and “dizzy.” Foster lost consciousness and fell to the concrete floor,

sustaining a skull fracture and hematoma. His injuries required emergency surgery that day. A

July 8, 2016 medical record from a nurse practitioner noted that Foster “had a vasovagal

reaction.” Metabolic, blood, and glucose panels were performed after Foster’s accident.

Foster’s panel results indicated that he had an abnormally high glucose level.

              Based on Foster’s training and experience as a paramedic, he testified that a vasovagal

episode is “either [a] lowering of the heart rate or the blood pressure . . . usually in reaction to

something that leads to a loss of consciousness or a syncopal episode.” Foster testified that the

vasovagal episode could result from dehydration, pain, or standing too long. He stated that even

though he had not eaten prior to the accident, he was not suffering from any of these potential

triggers of a vasovagal episode on the morning of the accident. However, Foster testified that he

does suffer from a heart condition called Kawasaki disease and food allergies severe enough to

necessitate carrying an EpiPen.

              Foster further testified that he assisted with approximately six to twelve similar

procedures prior to the day of the accident. He recalled that although he had never discussed it



                                                            
              1
          Foster described the lumbar puncture as a procedure where a “long skinny needle,” is
inserted into the spine “to get the fluid out of the back.”
                                                  ‐ 2 -
with anyone, he experienced “weird” reactions, or lightheadedness, when observing lumbar

needles being used in the past. However, he never lost consciousness in such a situation until the

day of the accident. He stated, “I never thought I would truly pass out. That’s part of the job . . .

I didn’t think I needed to tell anybody about it because nothing bad had ever happened.”

       Foster testified that in his twelve years of being an EMT, he had seen many horrific

injuries, including burns and broken bones piercing the skin. He stated that as an EMT, he

administered intravenous medications and gave shots involving needles on a regular basis

without issue.

       On July 11, 2016, Foster’s insurance carrier took his recorded statement. In that

statement, Foster claimed he did not know the cause of his loss of consciousness. He neglected

to mention an issue with needles on the day of the accident.

       On February 27, 2017, the deputy commissioner issued an opinion denying Foster’s

claim. Although the deputy commissioner found that Foster’s injuries occurred in the course of

his employment, he concluded that the accident did not arise out of his employment. Foster

appealed to the full Commission.

       On August 16, 2017, the full Commission reversed the deputy commissioner in a split

decision, finding that Foster’s injuries were compensable as they arose out of his employment.

The Commission stated that,

                 The medical records consistently described [Foster’s] loss of
                 consciousness as occurring while the subject medical procedure
                 was being performed. This timing, along with the claimant’s
                 history of feeling light-headed when observing lumbar puncture
                 procedures, and the absence of evidence of any other likely cause
                 of his loss of consciousness, allows [Foster] to meet that burden [of
                 proving by a preponderance of the evidence that he sustained a
                 compensable injury].

Lynchburg General appeals to this Court.



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                                            Analysis

       On appeal, Lynchburg General assigns error to the Commission’s finding that Foster

suffered a compensable injury. Specifically, Lynchburg General argues that the evidence failed

to establish that his injuries “arose out of” Foster’s employment. Lynchburg General further

contends that the Commission erred in relying on inferences to establish causation.

       “Whether an injury arises out of and in the course of employment involves a mixed

question of law and fact, which we review de novo on appeal.” Blaustein v. Mitre Corp., 36

Va. App. 344, 348, 550 S.E.2d 336, 338 (2001) (citing Norfolk Cmty. Hosp. v. Smith, 33

Va. App. 1, 4, 531 S.E.2d 576, 578 (2000)); see also Dublin Garment Co. v. Jones, 2 Va. App.

165, 167, 342 S.E.2d 638, 638 (1986).

       Under Virginia’s workers’ compensation statutes,

               “‘[I]njury’ means only injury by accident arising out of and in the
               course of the employment.” Code § 65.2-101. Thus, “[f]or an
               injury to be compensable under the Workers’ Compensation 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 the employment; and
               (3) that the injury arose out of the employment.”

Dollar Tree Stores, Inc. v. Wilson, 64 Va. App. 103, 108, 765 S.E.2d 151, 153 (2014) (quoting

Southland Corp. v. Parson, 1 Va. App. 281, 283-84, 338 S.E.2d 162, 163 (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.’” PYA/Monarch & Reliance

Ins. Co. v. Harris, 22 Va. App. 215, 221, 468 S.E.2d 688, 691 (1996) (quoting Marketing

Profiles, Inc. v. Hill, 17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993) (en banc)).

       “Virginia employs the actual risk test” in determining whether an injury arises out of

employment. Southside Va. Training Ctr. v. Ellis, 33 Va. App. 824, 828, 537 S.E.2d 35, 37

(2000) (quoting Vint v. Alleghany Reg’l Hosp., 32 Va. App. 60, 63, 526 S.E.2d 295, 297

                                               ‐ 4 -
(2000)). Under this test, an injury is considered to have arisen out of the employment “if the

manner in which the employer requires the work to be performed is causally related to the

resulting injury.” Id. (quoting Vint, 32 Va. App. at 63, 526 S.E.2d at 297). The general rule is

that “[t]he causative danger must be peculiar to the work and not common to the neighborhood.”

Turf Care, Inc. v. Henson, 51 Va. App. 318, 325, 657 S.E.2d 787, 790 (2008) (quoting Basement

Waterproofing & Drainage v. Beland, 43 Va. App. 352, 356-57, 597 S.E.2d 286, 288 (2004)).

“The 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).  

       While the Commission may infer from the evidence that a work-related risk caused an

employee to sustain an injury, “[t]he claimant [has] the burden of establishing, by a

preponderance of the evidence, and not merely by conjecture or speculation, that [they] suffered

an injury by accident which arose out of and in the course of the employment.” Cent. State

Hosp. v. Wiggers, 230 Va. 157, 159, 335 S.E.2d 257, 258 (1985). “An award based upon

surmise or conjecture will be set aside.” Sullivan v. Suffolk Peanut Co., 171 Va. 439, 443, 199

S.E. 504, 506 (1938).  “If the evidence shows that it is just as probable that the disability

resulted from a cause which is not compensable, as it is that it resulted from one which is

compensable, the claimant has not sustained the burden of proof.” Van Geuder v.

Commonwealth, 192 Va. 548, 557-58, 65 S.E.2d 565, 571 (1951) (quoting Carter v. Hercules

Powder Co., 182 Va. 282, 288, 28 S.E.2d 736, 738 (1944)).

       In this case, the Commission determined that there was sufficient evidence to prove that

Foster’s injuries were compensable. We disagree. Foster’s own testimony was inconclusive as

to whether he was “light-headed” every time he had assisted in similar procedures. Next, the

medical records merely established a correlation between Foster having observed the procedure

                                                ‐ 5 -
and his loss of consciousness. Finally, there were several other potential causes that were not

ruled out by evidence.

       Foster’s own testimony that he previously felt light-headed when observing similar

procedures was inconclusive about the cause of his loss of consciousness. In fact, Foster initially

claimed that he was unaware of what caused his loss of consciousness. He failed to testify that

the light-headedness occurred during each of the six to twelve times he had assisted in a lumbar

puncture procedure. He further testified that he never lost consciousness in such a situation, and

therefore, he did not “think he needed to tell anybody about it.” Significantly, as an EMT, Foster

had been trained in such procedures and had witnessed numerous scenes far more horrendous

than the lumbar puncture procedure. See Hess, 68 Va. App. at 199, 806 S.E.2d at 418

(claimant’s traumatic experience of witnessing a mutilated body following a car crash was not a

“sudden or unexpected shock or fright” for a State Trooper with training and experience in fatal

accidents and crash scene reconstruction); Anthony, 36 Va. App. at 102, 548 S.E.2d at 275

(claimant, a social worker who was assaulted, was denied benefits because physical

confrontations were not unusual occurrences in claimant’s work environment).

       The Commission inferred that the cause of Foster’s vasovagal episode was an emotional

reaction to observing the use of the lumbar puncture needle. However, the medical records

relied upon by the Commission, at most, established a correlation between Foster’s observation

of the procedure and his loss of consciousness. The July 1, 2016 emergency department record

only established that Foster’s vasovagal episode and the resulting injuries occurred following the

attempted lumbar procedure. The July 8, 2016 report from a nurse practitioner similarly stated

that Foster’s vasovagal episode happened “while assisting a procedure” and that he fell as a

result of the episode. Further, there is no support in the medical records for Foster’s testimony

that he previously felt light-headed when observing similar procedures. While these records

                                               ‐ 6 -
established when the vasovagal episode took place, they did not establish what caused the

episode.

              In support of his argument that medical evidence is not necessary in establishing

causation, Foster relies on Strictly Stumps, Inc. v. Enoch, 33 Va. App. 792, 537 S.E.2d 19

(2000). In that case, a tree fell on the claimant’s foot, a fact which was corroborated by an

eyewitness. The claimant did not pursue medical treatment until a year later. Medical records

referenced a right foot work injury, but never provided an opinion as to causation. In Enoch, this

Court noted that the medical records did not reference “an alternative trauma or other causative

factor.” Id. at 796, 537 S.E.2d at 21. It was additionally observed that “[t]he record in [Enoch]

does not establish that the medical issue was so complex that the commission made findings in

an area that could only be properly decided by medical experts.” Id.

              As Lynchburg General properly asserts, the issues in this case involve a “non-physical,

internal reaction” that is “more complex than a physical, external injury” as was the case in

Enoch. Non-physical internal or emotional injuries, like the vasovagal syncope suffered by

Foster, can be caused by many factors that may not be immediately apparent to the claimant or to

an eyewitness. This Court in Enoch also relied on the fact that there was no discussion of “an

alternative trauma or other causative factor.” Here, there are several possible alternative causes

for Foster’s vasovagal episode present in the record including, but not limited to, Foster’s

diagnosed Kawasaki disease,2 food allergies, and abnormally high blood glucose levels. As the

dissenting commissioner correctly stated, the information in the medical records “is purely

anecdotal and not dispositive of the issue before us.”




                                                            
              2
         The Mayo Clinic definition of “vasovagal syncope” submitted into evidence by Foster
expressly references “heart disorders” as a possible cause of vasovagal syncope.
                                               ‐ 7 -
       The Commission’s decision was based upon the factual finding that Foster’s vasovagal

episode was an emotional reaction to observing the use of the lumbar puncture needle. No

credible evidence exists in the record to support a finding that Foster’s injuries were caused by a

non-physical or emotional factor. Therefore, we must reverse the Commission’s decision.

                                                                                         Reversed.




                                                ‐ 8 -
