THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Richard M. Reed (The Reed Law Firm, P.L.L.C., on brief), for
M. McAdam (KPM Law, on brief), for appellees.
Present: Chief Judge Decker, Judges Humphreys and Huff Argued
at Alexandria, Virginia
A. HUFF, JUDGE
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
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.
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.
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
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
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.
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."
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.
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 ...