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Norris v. Etec Mechanical Corp.

Court of Appeals of Virginia

December 26, 2018

GEORGE NORRIS, JR.
v.
ETEC MECHANICAL CORPORATION AND COMMONWEALTH CONTRACTORS GROUP SELF-INSURANCE

          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          William C. Carr, Jr. (Geoff McDonald & Associates, P.C., on brief), for appellant.

          Esther King (Emily Whitaker; McCandlish Holton, P.C., on brief), for appellees.

          Present: Judges Humphreys, Beales and AtLee Argued at Richmond, Virginia

          OPINION

          ROBERT J. HUMPHREYS, JUDGE

         Appellant George Norris, Jr. ("Norris"), fell asleep behind the wheel of a company vehicle while driving home at the end of his work day, which resulted in an accident in which he was injured. He now appeals the June 25, 2018 decision of the Workers' Compensation Commission (the "Commission") denying his claim for benefits, arguing that the Commission erred in holding that he did not sustain an injury arising out of the course of his employment.

         I. BACKGROUND

         On March 31, 2017, Norris was driving from a job site in Powhatan County to his residence when he "dozed off," which resulted in an accident. Norris sustained severe injuries that required hospitalization, surgeries, and an extensive stay at an in-patient rehabilitation facility. Norris subsequently filed a claim for benefits alleging injuries to his "right hip, leg, and knee and his left shoulder, hip, leg, femur, knee and ankle." Norris also clarified that he sought medical benefits and temporary total disability at the subsequent hearing.

          Disputing Norris's claim, ETEC Mechanical Corporation and its insurer, Commonwealth Contractors Group Self-Insurance (collectively "employer"), argued that Norris's injuries did not arise out of his employment.

         On September 11, 2017, a hearing was held before a deputy commissioner.[1] The record reflects that Norris was driving on his street, approximately 200 yards from his home, when he fell asleep behind the wheel. Norris then ran off the road and crashed into a tree. Norris explained that he knew that he dozed off because it had happened to him in the past. According to Norris, "I get tired in the evenings, and sometimes moreso [sic] than others, . . . I've dozed off before. It's just fighting sleep. And I guess this time I didn't wake up." Norris denied consuming drugs or alcohol before the accident, other than taking his blood pressure medication that morning, and denied any history of blacking out.

         Norris also described the work that he performed for employer before the accident. Norris testified that he is a master electrician and typically works on commercial HVAC equipment. On the day of the accident, Norris was at a job location fixing leaks in air conditioning refrigeration lines. The job required Norris to go up and down a ladder throughout his eight-hour workday and move nitrogen bottles on two separate occasions. Notably, Norris characterized the work week leading up to the accident as "a normal week" that "wasn't that bad, actually."

         In an opinion dated October 16, 2017, the deputy commissioner denied Norris's claim for benefits. The deputy commissioner's opinion emphasized his finding that Norris did not sufficiently prove a causal connection between the conditions of his work, falling asleep behind the wheel, and the resulting accident and injury. Norris subsequently requested a review of the deputy commissioner's opinion.

         In an opinion dated June 25, 2018, the Commission agreed with the deputy commissioner's finding that Norris failed to prove the requisite causal connection between his work conditions and falling asleep behind the wheel. The Commission's opinion initially recognized that Norris was in the course of his employment when his accident occurred. As a result of that finding, the Commission focused upon the pivotal question in this case: whether Norris's accident and his resulting injuries, which occurred because Norris fell asleep behind the wheel, arose out of his employment.

         The Commission ultimately denied Norris's claim due to an absence of "affirmative evidence establishing a causal connection between [Norris's] employment and his untimely slumber[.]"[2] Importantly, the Commission emphasized that Norris failed to provide convincing evidence to explain why he was tired on the evening in question. "He agreed that it had been a normal work week and that he had not been on call for the employer." The Commission noted that while Norris's work was physical in nature, "he did not refer to those tasks as more strenuous or difficult that [sic] normal, nor did he relate his fatigue or inability to stay awake to the activities he performed" for employer. Medical records prepared after the accident and Norris's pre-hearing deposition testimony also failed to identify why Norris fell asleep behind the wheel. Finally, the Commission sua sponte considered whether the street risk doctrine demanded a different result, even though Norris did not previously argue ...


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