Willard Y. Jefferies v. Richfood Holdings, Inc. ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
WILLARD Y. JEFFRIES
MEMORANDUM OPINION ∗
v. Record No. 0707-99-2 PER CURIAM
AUGUST 10, 1999
RICHFOOD HOLDINGS, INC.
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Keith N. Hurley; Cawthorn, Picard & Rowe,
on brief), for appellant.
(R. Ferrell Newman; Thompson, Smithers,
Newman, Wade & Childress, on brief), for
appellee.
Willard Y. Jeffries (claimant) appeals from a ruling of the
Workers' Compensation Commission (commission) denying his claim
for benefits on the ground that his injuries did not arise from
an actual risk of employment. 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.
On appeal, we review the 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). Unless we can say as a matter of law that claimant's
∗
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010
this opinion is not designated for publication.
evidence sustained his burden of proof, the commission's
findings are binding and conclusive upon us. See Tomko v.
Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835
(1970).
So viewed, the evidence proved that claimant worked as an
over-the-road truck driver for Richfood. On January 5, 1998,
claimant drove his tractor trailer to the loading area behind a
Rack and Sack grocery store in Chesterfield County, Virginia, to
make a delivery. Claimant kicked on a door to get the store
employees' attention, and he heard someone tell him to wait
while they got a key for the door. Claimant testified that he
heard a voice from inside the building and heard some keys
jingling, and the next thing he remembered was waking up in the
hospital.
When claimant woke up, he realized that his watch and
wallet were missing. The incident was treated as a robbery and
investigated by the police. Claimant testified that the area
where the assault occurred was lit by two dome lights, and the
store was located in a "nice neighborhood." Claimant never saw
the person who assaulted him. He testified that he did not
carry company money with him when he traveled, and he could not
say whether anything was stolen from his truck.
In his five previous deliveries at this store, claimant had
never seen any activity in the loading area that gave him reason
to be concerned for his safety. The loading area behind the
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store was not one generally traversed by the public, although
Detective David Zeheb testified that he would sometimes
encounter people there drinking beer.
"'To qualify for workers' compensation benefits, an
employee's injuries must result from an event "[a]rising out of"
and "in the course of" the employment.' It is well established
that '[w]hether an accident arises out of employment is a mixed
question of law and fact and is . . . reviewable upon appeal.'"
Smithfield Packing Co., Inc. v. Carlton, 29 Va. App. 176, 180,
510 S.E.2d 740, 742 (1999) (citations omitted).
"In determining if an accident arises out of the
employment, Virginia applies the 'actual risk' test, which
'requires that the employment subject the employee to the
particular danger that brought about his or her injury.'" Id.
at 181, 510 S.E.2d at 742 (quoting Lipsey v. Case, 248 Va. 59,
61, 445 S.E.2d 105, 106 (1994) (citations omitted)). "An
accident arises out of the employment if a causal connection is
established between the employee's injury and the conditions
under which the employer required the work to be performed. The
causative danger must be peculiar to the work and not common to
the neighborhood." Roberson v. Whetsell, 21 Va. App. 268, 271,
463 S.E.2d 681, 682 (1995). "Moreover, the claimant has the
burden of proving by a preponderance of the evidence that the
injury was an actual risk of the employment." Hill City
Trucking v. Christian, 238 Va. 735, 739, 385 S.E.2d 377, 379
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(1989) (holding that a truck driver's injuries sustained during
a robbery did not arise out of his employment as an
over-the-road truck driver where there was no evidence
establishing a nexus between the criminal act and his
employment).
"[T]o be entitled to an award arising from an assault, a
claimant must establish 'that the assault was directed against
him as an employee or because of his employment.'" Smithfield
Packing, 29 Va. App. at 181, 510 S.E.2d at 742 (citation
omitted).
"The requisite nexus in an assault case is
supplied if there is 'a showing that the
probability of assault was augmented either
because of the peculiar character of the
claimant's job or because of the special
liability to assault associated with the
environment in which he must work.'" Jobs
often held to pose a special risk of assault
are those that involve working in or
traveling through dangerous areas.
Roberson, 21 Va. App. at 271, 463 S.E.2d at 683 (citation and
footnote omitted).
Claimant presented no evidence tending to prove that he was
targeted because of his employment as a truck driver with
Richfood. There was no evidence that claimant's assailant took
any merchandise from claimant's truck, or even attempted to
enter the truck. Nor was there any evidence presented regarding
any previous assaults or criminal acts occurring behind this
store. The fact that the assault took place behind the store,
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where the general public generally did not go, is insufficient,
standing alone, to establish that claimant's employment resulted
in a heightened risk of exposure to criminal activity.
Accordingly, we cannot say as a matter of law that claimant's
evidence proved that his injuries arose out of his employment as
a Richfood truck driver.
Affirmed.
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