Charles Ray Warlitner v. McDonald's, etc. ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
CHARLES RAY WARLITNER (DECEASED),
MARIE W. HALL, and RIVERSIDE
HEALTHCARE ASSOCIATION, INC., t/a
RIVERSIDE REGIONAL MEDICAL CENTER MEMORANDUM OPINION *
PER CURIAM
v. Record No. 2958-96-1 MARCH 25, 1997
McDONALD'S McCOPCO NO. 05161/
McDONALD'S CORPORATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Phillips M. Dowding, on briefs), for
appellants.
(Scott C. Ford; Midkiff & Hiner, on brief),
for appellee.
Charles R. Warlitner, deceased, by and through his sister,
Marie Hall, and Riverside Healthcare Association, Inc., t/a
Riverside Regional Medical Center, appeal a decision of the
Workers' Compensation Commission (commission) denying their
application alleging a February 23, 1995 injury by accident
resulting in Warlitner's death. Appellants contend that the
commission erred in refusing to apply the presumption found in
Southern Motor Lines Co. v. Alvis, 200 Va. 168, 104 S.E.2d 735(1958), that the injuries which resulted in Warlitner's death
arose out of his employment. Finding no error, we affirm the
commission's decision.
On appeal, we view the evidence in the light most favorable
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
So viewed, the evidence established that on February 23,
1995, Warlitner worked for McDonald's Corporation (the
restaurant) as a maintenance worker. On the morning of February
23, 1995, when Warlitner reported for work, his duties required
that he clean the restaurant's bathrooms and the cement floor of
the corral. 1 At approximately 8:15 a.m., Warlitner was found
lying unconscious on his left side on the corral floor with his
body near an empty soft drink tank.
Before discovering that he had been injured, Vangeline
Mattison, the restaurant's assistant manager, had last seen
Warlitner outside the restaurant preparing to take a bag of trash
to the corral. Mattison found the bag of trash by the back door
to the restaurant. Mattison denied that there was any grease on
the ground in the corral area where Warlitner was lying. Joann
Gould, the restaurant's manager, testified that she did not
observe any grease in the area where Warlitner was found.
Mattison testified that Warlitner had missed a day from work
during the week before his accident. She recalled that Warlitner
had a cold and was coughing and breathing heavily at work. Lori
Staples, a manager trainee, recalled that on approximately
1
The "corral" was an area behind the restaurant surrounded
by a seven-foot high wooden fence where the restaurant stored
its dumpsters, a large grease can, and empty soft drink
canisters. One of Warlitner's job duties was to take trash and
empty soft drink canisters to the corral.
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February 16, 1995, Warlitner complained of dizziness and had a
bad cold. Warlitner had a family history of heart attacks and
aneurysms.
Gould, who rode with Warlitner in the ambulance to the
hospital, stated that Warlitner did not appear to know why he had
fallen. Warlitner's physician diagnosed Warlitner as suffering
from a traumatic brain injury with a brain contusion, hemorrhage,
and a skull fracture. Warlitner remained a patient in Riverside
Regional Hospital until he died on March 20, 1995. In an autopsy
report, Dr. Faruk Presswalla reported the cause of Warlitner's
death as a "[p]ulmonary embolus complicating basal skull fracture
with cerebral contusion due to a fall."
Mattison, Gould, and Marie Hall visited Warlitner during his
hospitalization. Each of these witnesses stated that although
Warlitner was conscious and able to communicate at times, he was
never able to remember how the accident occurred.
The commission denied the application, finding that the
evidence failed to show that a condition of Warlitner's workplace
caused his injury or that the Alvis presumption applied.
Therefore, the commission concluded that the evidence failed to
prove that Warlitner's injuries arose out of his employment.
A claimant must prove that an injury arose out of and in the
course of his employment to qualify for any benefits under the
Workers' Compensation Act. See Pinkerton's, Inc. v. Helmes, 242
Va. 378, 380, 410 S.E.2d 646, 647 (1991). "A 'critical link'
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must exist between the conditions of the workplace and the injury
in order for the injury to qualify as 'arising out of' the
employment." Id. In this case, the cause of Warlitner's
accident is unknown. As the commission noted, appellants could
not point to any evidence which indicated that Warlitner's fall
was caused by a risk of his employment. Therefore, only if
appellants are entitled to a presumption that Warlitner's
injuries arose out of his employment are they entitled to
workers' compensation benefits.
In Alvis, the Supreme Court held:
We have long since adopted the rule to the
effect that where an employee is found dead
as the result of an accident at his place of
work or nearby, 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.
Alvis, 200 Va. at 171-72, 104 S.E.2d at 738 (emphasis added).
In Pinkerton's, the Supreme Court held that the Alvis presumption
is limited to death cases, and is not applicable to an
unexplained accident case. Pinkerton's, 242 Va. at 381, 410
S.E.2d at 648.
We find that the commission correctly refused to apply the
Alvis presumption. The presumption does not apply to a case such
as this one, where Warlitner was not found dead at the scene of
the accident, but rather died approximately one month later.
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Because appellants' evidence did not as a matter of law
sustain their burden of proving that Warlitner's injuries arose
out of his employment, we affirm the commission's decision.
Affirmed.
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