Robert A. Sanders v. Friendship ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
ROBERT AROL SANDERS (DECEASED),
PAMELA SANDERS (WIDOW), AMY
REBECCA GARWOOD, VANESSA SANDERS
AND KIMBERLY SANDERS
MEMORANDUM OPINION *
v. Record No. 1083-98-3 PER CURIAM
NOVEMBER 24, 1998
FRIENDSHIP AMBULANCE SERVICE, INC.
AND EMPLOYERS INSURANCE OF WAUSAU
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Gerald F. Sharp; Browning, Lamie & Sharp, on
brief), for appellants.
(Michael F. Blair; Penn, Stuart & Eskridge,
on brief), for appellees.
Pamela Sanders, Amy Rebecca Garwood, Vanessa Sanders and
Kimberly Sanders, the dependents of Robert Arol Sanders, contend
the Workers' Compensation Commission erred in finding that (1)
the dependents failed to prove Sanders' death arose out of and in
the course of his employment and (2) the death presumption did
not apply. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27.
Facts
The facts are undisputed. Sanders was the president of
Friendship Ambulance Service, Inc., a corporation engaged in the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
business of transporting patients to medical providers throughout
southwestern Virginia. Friendship's transport business was
primarily conducted using land-based vehicles. Although
Friendship owned an airplane, it did not transport patients in
it. Whenever Friendship was required to transport a patient by
airplane, it either rented or chartered an airplane from another
business.
Sanders used Friendship's airplane to fly the corporation's
employees to various meetings and seminars. In addition, Sanders
used the airplane for personal trips and occasionally transported
passengers in the airplane who were not employees of Friendship.
He reimbursed Friendship for the cost of the transportation for
his personal ventures.
On May 25, 1995, Sanders was killed while piloting
Friendship's airplane. At the time, Sanders was transporting
Donnie Dean, an employee of an engineering firm, to Richmond.
Although Sanders had numerous business contacts in Richmond, no
evidence showed that Sanders was flying to Richmond for a purpose
other than to transport Dean. Dean was traveling to Richmond to
attend a meeting concerning one of the engineering firm's
projects. Deonna Payne, an employee of the engineering firm,
made the arrangements for Sanders to transport Dean and testified
that Friendship was to send the engineering firm an invoice for
the cost of the transportation.
The commission denied the dependent's claim for benefits.
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I.
"In order to establish entitlement to compensation benefits,
the claimant must prove, by a preponderance of the evidence, an
injury by accident which arose out of and in the course of his
employment." Classic Floors, Inc. v. Guy, 9 Va. App. 90, 95, 383
S.E.2d 761, 764 (1989). 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.'" Bradshaw v. Aronovitch, 170 Va. 329,
335, 196 S.E. 684, 686 (1938) (quoting In re McNicol, 102 N.E.
697, 697 (Mass. 1913)). "'[A]n accident occurs in the 'course of
employment' when it takes place within the period of employment,
at a place where the employee may be reasonably expected to be,
and while [the employee] is reasonably fulfilling the duties
of . . . employment or is doing something which is reasonably
incidental thereto.'" Thore v. Chesterfield County Bd. of
Supervisors, 10 Va. App. 327, 331, 391 S.E.2d 882, 885 (1990)
(quoting Conner v. Bragg, 203 Va. 204, 208, 123 S.E.2d 393, 396
(1962)).
A finding by the commission that an injury did or did not
arise out of and in the course of employment is a mixed finding
of law and fact and is properly reviewable on appeal. See City
of Richmond v. Braxton, 230 Va. 161, 163-64, 335 S.E.2d 259, 261
(1985). On an appeal from the commission's decision, we view the
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evidence in the light most favorable to the prevailing party
below. See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211,
212, 390 S.E.2d 788, 788 (1990). Thus, we note that the
commission found as follows when it denied the dependents'
application:
It is clear from the evidence that no
one knew exactly why Mr. Sanders was flying
to Richmond on May 25, 1995. Although there
is a possibility that his destination may
have been for business purposes upon arriving
in Richmond, Virginia, this fact is
speculative at best. The fact that, as the
claimant argues, the employer presented no
evidence that Mr. Sanders was not on a
business trip at the time of the crash, is
not controlling because "the burden
. . . [is] not upon the employer to prove
that . . . [the employee's] injury did not
arise out of his employment; the burden of
proof . . . [is] upon . . . [the employee] to
prove how the injury occurred and that it is
compensable."
(Quoting Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374,
387, 363 S.E.2d 433, 440 (1987)).
The commission's finding concerning the purpose of the trip
is supported by credible evidence in the record. Ronald Freeman,
the vice president of Friendship, testified that Friendship's
airplane had never been used to transport patients. The evidence
also proved that Sanders occasionally used the airplane for
personal purposes. No evidence proved that Sanders was
transporting Dean for reasons related to Sanders' employment or
that Sanders had a business purpose for the trip to Richmond.
Thus, the evidence failed to show that Sanders was fulfilling the
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duties of his employment with Friendship or doing something
reasonably incidental to his employment at the time of his death.
Any conclusion that Sanders' trip to Richmond was for an
employment-related purpose would be based on pure speculation.
In short, the evidence failed to prove a causal connection
between the conditions under which Sanders' work was to be
performed and the fatal airplane crash. Therefore, we cannot say
as a matter of law that the dependents' evidence sustained their
burden of proof. See Tomko v. Michael's Plastering Co., 210 Va.
697, 699, 173 S.E.2d 788, 788 (1970).
II.
The Supreme Court of Virginia has outlined the death
presumption as follows:
Where an employee is found dead as the
result of an accident at his place of work or
near by, where his duties may have called him
during the hours of his work, and there is no
evidence offered to show what caused the
death or to show that he was not engaged in
his master's business at the time, the court
will indulge the presumption that the
relation of master and servant existed at the
time of the accident, and that it arose out
of and in the course of his employment.
Sullivan v. Suffolk Peanut Co., 171 Va. 439, 444, 199 S.E. 504,
506 (1938). However, the death presumption applies only if there
is an absence of evidence contrary to the conclusion that the
death arose out of the employment. See Hopson v. Hungerford Coal
Co., Inc., 187 Va. 299, 305, 46 S.E.2d 392, 394 (1948).
In refusing to apply the death presumption to the
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circumstances of this case, the commission found as follows:
[T]here was evidence that Mr. Sanders was
carrying a passenger who was at least sharing
the cost of the trip. This passenger was in
no way related to the ambulance business.
Evidence at the hearing also demonstrated
that this employer was not licensed to carry
passengers in this fashion. The passenger
was not a patient being transported as part
of the business. Other than statements made
to witnesses, the day before the fatal
flight, that Mr. Sanders was flying to
Richmond, there is insufficient evidence
presented that he was otherwise engaged in
any business of the employer. As a result,
there is no evidence that Mr. Sanders was
actually performing a task connected with his
employment at the time of his death.
These findings of fact are supported by credible evidence and
point to evidence contrary to a conclusion that the death arose
out of Sanders' employment. See id.Sanders died in an airplane crash while transporting Dean
for a purpose wholly unrelated to the business of Friendship.
Friendship was not in the business of transporting non-patient
passengers for pay, and it had been fined on a prior occasion for
doing so without a license. Although Dean was expected to pay
Friendship for flight expenses, that arrangement was not
sufficient to prove that the flight was made by Sanders for
business rather than personal purposes. Sanders had authority to
use the airplane for personal flights; he had done so in the
past; and he reimbursed Friendship for the expenses incurred in
his personal use of the airplane.
Based upon this record, the commission could reasonably
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infer that Sanders was on a private mission at the time of his
death. Finding no causal connection between Sanders' death and
his employment, the commission did not err in refusing to apply
the death presumption. Therefore, we affirm the commission's
decision.
Affirmed.
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