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King v. DTH Contract Services Inc.

Court of Appeals of Virginia

February 5, 2019

GEORGE KING
v.
DTH CONTRACT SERVICES INC. AND AMERICAN SELECT INSURANCE COMPANY

         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Richard M. Reed (The Reed Law Firm, P.L.L.C., on brief), for appellant.

          Robert M. McAdam (KPM Law, on brief), for appellees.

          Present: Chief Judge Decker, Judges Humphreys and Huff Argued at Alexandria, Virginia

          OPINION

          GLEN A. HUFF, JUDGE

         A former co-worker stabbed George King ("claimant") in the face, blinding him, while claimant was working alone as the overnight attendant at a rest area for DTH Contract Services, Inc. ("employer"). The assailant committed suicide later the same day, and his motives for the assault were never discovered. Claimant sought workers' compensation benefits for the injuries he sustained in the assault. Those benefits were denied by a divided Workers' Compensation Commission, reasoning that because claimant knew the assailant, the attack was not random, and since the motive for the attack was unknown, claimant failed to prove that the injury arose out of a risk of employment. He appeals that decision.

         Claimant's appeal turns on whether the assault, and thus his injuries, "arose out of" his employment as the rest area overnight attendant. The legal effect of the assailant's motive on the "arising out of" question is central to resolving this appeal. Because the claimant did not prove that the assailant's motive was employment related, instead of personal, and the claimant and assailant knew each other, the Commission held the assault did not arise out of claimant's employment. Claimant argues that, when an assailant's motive is unknown, he can still prove the assault arose out of his employment if the employment placed him at a greater risk of assaults than the general public. Thus he argues the Commission erred by refusing to consider whether his employment presented a risk of assault.

         A claimant may suffer a random attack from someone he knows, and a random attack is compensable if the employment generates a risk of assault to the claimant. Thus, a claimant may prove an assault arose out of his employment if he can prove the job subjected him to greater risk of assault-even if he knew his assailant-as long as no evidence suggests the motivation for the assault was personal. Therefore, this Court reverses the Commission and remands this case for the Commission to consider claimant's argument that his job placed him at greater risk of assault.[1]

         I. BACKGROUND

         "On appeal, [this Court] view[s] the evidence in the light most favorable to the prevailing party before the [C]ommission." Portsmouth Sch. Bd. v. Harris, 58 Va.App. 556, 559 (2011) (quoting Central Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 42 Va.App. 264, 269 (2004)). So viewed, the evidence is as follows.

         Claimant began working at a rest area on Interstate 66 in 2013, initially working the evening shift. At the time of the assault, claimant was the overnight, 10:00 p.m. to 6:00 a.m., attendant for the rest area. As the overnight attendant, claimant was required to keep the restrooms clean, empty the trash cans, and generally keep an eye on the rest area, reporting any criminal activity to the police. He was the only employee on site overnight. He was to remain locked in the office when not cleaning or making rounds to check on the rest area.

         He was also required to make hourly "safety check" phone calls. The purpose of these calls was to confirm that the rest area was staffed and to assure the "safety of the attendant." If the attendant did not make the phone call, he would be called. If he was not reached at the rest area office, his supervisor would be called. The supervisor would then call him on his cell, and if he did not reach the attendant, the supervisor would travel to the rest area and call the police if necessary.

         In June 2014, Khalif Privott ("assailant") began working at the same rest area as an overnight attendant. Assailant repeatedly failed to make the required safety calls. Assailant quit in March 2015 without providing any notice, stating "I can't do this anymore."

         Claimant and assailant never worked the same shifts at the same rest area. They either worked different days, different sides of the interstate, or claimant worked the evening shift and assailant, working the overnight shift, would relieve claimant. Claimant testified he did not move to the overnight shift until after assailant quit.

         In the early morning of July 13, 2016, over a year after assailant quit, he stabbed claimant in the eyes with a screwdriver while claimant was returning to the office after making his last check around the rest area. Claimant did not recognize assailant during the assault, and assailant did not speak a word during the assault. Assailant never communicated his motives to anyone and committed suicide later the same ...


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