GEORGE NORRIS, JR.
ETEC MECHANICAL CORPORATION AND COMMONWEALTH CONTRACTORS GROUP SELF-INSURANCE
THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William C. Carr, Jr. (Geoff McDonald & Associates, P.C.,
on brief), for appellant.
King (Emily Whitaker; McCandlish Holton, P.C., on brief), for
Present: Judges Humphreys, Beales and AtLee Argued at
J. HUMPHREYS, JUDGE
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
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.
September 11, 2017, a hearing was held before a deputy
commissioner. 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
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."
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.
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.
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[.]" 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 ...