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O'Donoghue v. United Continental Holdings, Inc.

Court of Appeals of Virginia

March 26, 2019



          Kathleen Grace Walsh (Law Office of Kathleen Grace Walsh, on brief), for appellant.

          Jennifer R. Helsel (Ciara Wren Malone; Franklin & Prokopik, P.C., on brief), for appellees.

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



         Cary O'Donoghue (the claimant) appeals a decision of the Virginia Workers' Compensation Commission denying his claim for benefits for injuries he sustained while working for United Continental Holdings, Inc., and United Airlines, Inc. (the employer). He argues that the Commission erred in concluding that he failed to prove that the accident and resulting injuries arose "out of" his employment as required by Code § 65.2-101 for coverage under the Virginia Workers' Compensation Act. Based on the applicable law, we hold that the record supports the Commission's ruling that the claimant did not prove that his injuries arose out of his employment. Consequently, we affirm the denial of benefits.

         I. BACKGROUND[1]

         The claimant sought medical and disability compensation benefits through the Commission. His claim was based on electrocution injuries that he sustained while working for the employer at Dulles Airport on August 11, 2017. The employer defended the claim on the ground that the cause of the injuries was either unexplained or an act of God and, consequently, was not compensable under the Act.

         The evidence presented at the hearing before the deputy commissioner established that the claimant sustained the injuries while working as a ramp serviceman whose duties included loading and unloading airplanes. Earlier on the day at issue, the outdoor ramp where he was working was temporarily closed due to thunderstorms in the area. The claimant testified that the employer's "operations" division had "some weather system they use[d]" to assess how close lightning was to the airport in order to determine when to close the ramps for safety reasons. When a determination to close the ramps was made, a representative of the employer would "drive around the whole terminal" in a truck, waving a flag and "blow[ing] an airhorn."

         Later in the claimant's shift, the ramp on which he was working reopened, and a Boeing 787, one of United's newest airplanes, arrived at one of the gates. The claimant had previously received special training regarding that particular plane due to its construction. The airplane was half metal and half composite, with the "composite material along the aircraft's fuselage." The claimant knew that when a Boeing 787 arrives at the gate, unlike with other airplanes, "no [ground] power is put to the plane due to [its] on-board lithium batteries."

         According to the claimant, when the plane arrived at the gate that night, storms were "in the area" with "lightning all around." Also, "[i]t was down-pouring raining," and about an inch of rainwater was standing on the ground. In these conditions, the claimant positioned a three-step metal ladder in the standing water. He then climbed the ladder, opened an access panel on the plane, and reached for an interior toggle switch that operated the cargo door. He could see lightning in the distance while he did so. As the claimant touched the toggle switch, "a blue arc came out of the control panel." The arc "flash[ed]" "right in front of his face," and he "felt electricity" go "through his body." He did not see the blue flash along any other parts of the plane or its fuselage. The claimant told his supervisor and another employee that he had been struck by lightning, and he immediately sought medical treatment. The ramp was still open when he was injured, but it was closed again soon after his electrocution due to the weather conditions.

         The medical records in evidence include various equivocal descriptions of the electrocution. They indicate that the claimant was "struck by lightning"; "was either directly struck by lightning[] or [impacted by] lightning that struck the plane as he was touching the cargo door"; or was "struck by lightning" or "[encountered] static electricity."

         The deputy commissioner asked the claimant about static electricity, stating his understanding that "when an aircraft comes in, there are times . . . where it's accumulated static electricity . . . [i]n flight." He inquired whether the claimant knew how that electricity was discharged. The claimant agreed with the premise that a plane can accumulate static electricity in flight, and he explained that plugging the ground power cable into an aircraft "should dissipate any of the extra static." However, because ground power was routinely not hooked up to the Boeing 787, due to its on-board lithium batteries, the claimant said that he did not know how static electricity would dissipate from that type of plane. He further specifically stated that he "[did not] know" the source of the electrical arc that came out of the panel box and went through his body. The claimant noted that he was "not a science person" and that he was not sure if the source of the arc was "static electricity" from "the ground," "the sky," or "the aircraft," or if it was a lightning strike.[2]

         The deputy commissioner found that the claimant testified that he sustained his electrocution injuries "either as a result of a lightning strike" or, "alternatively, as the result of arching [sic] static electricity." He noted that under Virginia law, the mere occurrence of an injury due to a lightning strike while at work is insufficient to invoke the coverage of the Workers' Compensation Act and that a claimant must prove, additionally, that the conditions of the employment collaborated in causing the injury. The deputy commissioner further found that the claimant had not presented "persuasive evidence . . . that [he] was working at a location or performing a work related duty that created a special or peculiar risk of exposure to a lightning strike." Finally, he concluded that the evidence presented the possibility that the injuries could have resulted from a sudden discharge of static electricity from the plane arising out of the employment rather than from a lightning strike but that this theory was mere speculation on the evidence presented. Consequently, the deputy commissioner held that the claimant failed to prove the requisite causal connection between his employment and his injuries.

         On the claimant's request for review, the Commission unanimously affirmed the denial of benefits. It found that the claimant's testimony constituted an admission that "he did not know whether [the blue arc] was lightning or an electrical problem with the airplane." The Commission reasoned that the injuries could have been due solely to "an act of God"-the lightning strike-without any collaboration from the employment. On these facts, it determined that "[t]he evidence in the record does not sufficiently identify anything about the airplane or the circumstances of [the claimant's] employment that caused his injuries." Consequently, the Commission held that the claimant failed to prove that his injuries arose out of his employment, and it affirmed the deputy commissioner's denial of benefits.

         II. ANALYSIS

         The claimant argues that the Commission erred by finding the evidence was insufficient to prove that his injuries arose out of his employment as required for entitlement to benefits under the Workers' Compensation Act.

         A. Standard of Review and Legal Framework

         In assessing the Commission's determination regarding whether an injury arose "out of" one's employment, the appellate court faces a mixed question of law and fact. E.g., Va. Tree Harvesters, Inc. v. Shelton, 62 Va.App. 524, 532 (2013). The Court reviews the legal component of that determination de novo. See Turf Care, Inc. v. Henson, 51 Va.App. 318, 324 (2008). However, when the Commission makes factual findings based on credible evidence in the record and "'reasonable inferences'" drawn from that evidence, those findings are "conclusive and binding." Va. Tree Harvesters, 62 Va.App. at 532-33 (quoting Hawks v. Henrico Cty. Sch. Bd., 7 Va.App. 398, 404 (1988)).

         Entitlement to benefits for an injury under the Act requires proof, by a preponderance of the evidence, of an "injury by accident arising out of and in the course of the employment." Code § 65.2-101; see Va. Tree Harvesters, 62 Va.App. at 533. "The phrase arising 'in the course of' refers to the time, place, and circumstances under which the accident occurred. The phrase arising 'out of' refers to the origin or cause of the injury." Va. Emp't Comm'n v. Hale, 43 Va.App. 379, 384 (2004) (quoting Cty. of Chesterfield v. Johnson, 237 Va. 180, 183 (1989)). It is undisputed in this appeal that the claimant's injuries arose "in the course of" his employment. Only the "arising out of" prong is in dispute.

         The "arising out of" prong of the statutory test is "to be liberally construed to carry out the humane and beneficent purpose of" the Act.[3] Lucas v. Lucas, 212 Va. 561, 562-63 (1972). Nevertheless, the appellate courts "cannot permit a liberal construction to change the meaning of the statutory language or the purpose of the Act." Am. Furniture Co. v. Doane, 230 Va. 39, 42 (1985); see Jeffreys v. Uninsured Employer's Fund, Va., (Feb. 14, 2019) ("We frequently apply this simple principle [of liberally construing the Act] but guard against doing so simplistically." (footnote omitted)).

         In defining the "arising out of" prong, Virginia uses "the 'actual risk test.'" Lucas v. Fed. Express Corp., 41 Va.App. 130, 134 (2003) (quoting Lucas, 212 Va. at 563). This test requires proof that "the employment expose[d] the work[er] to the particular danger from which he was injured, notwithstanding the exposure of the public generally to like risks." Id. (quoting Lucas, 212 Va. at 563). The requirement is met "only . . . 'if there is a causal connection between the claimant's injury and the conditions under which the employer requires the work to be performed." Va. Tree Harvesters, 62 Va.App. at 534 (quoting R.T. Invs. v. Johns, 228 Va. 249, 252-53 (1984)); see also Johnson, 237 Va. at 185 (noting that Virginia does not apply the more lenient "positional risk test," under which "simply being injured at work is sufficient to establish compensability").

         In Virginia, under the actual risk test, proof of an injury while at work from lightning or some other "natural force," standing alone, is considered "an act of God" and does not establish that the employee is entitled to coverage under the Act.[4] Hale, 43 Va.App. at 385 (quoting Lucas, 41 Va.App. at 134-35). However, when "some condition[] or environment" of the employment poses "a special or peculiar risk" from "the disastrous forces of nature," the injury is "compensa[ble] as a risk of the employment." Id. (emphasis omitted) (quoting Lucas, 41 Va.App. at 135).

         The test under the actual risk doctrine, therefore, is "whether [a condition of] the employment collaborated [with the act of God] in causing the injury."[5] Id. (quoting Lucas, 41 Va.App. at 135). "Hazards to which the general public is equally exposed are non-compensable." Lucas, 41 Va.App. at 134 (emphasis added). To recover, "an employee 'must prove that the employment activity . . . exposed [him or] her to the injurious risk to an extent to which [members of the general public] were not ordinarily exposed, and thus caused [the] injuries.'" Hale, 43 Va.App. at 384-85 (quoting Lucas, 41 Va.App. at 134). "[W]here 'the employment brings a greater exposure'" to the elements, such as lightning or extreme temperatures, "'and injury results,' the injury does arise out of the employment." Scott Cty. Sch. Bd. v. Carter, 156 Va. 815, 820 (1931) (quoting 28 Ruling Case Law § 94, at 806-07 (William M. McKinney & Burdett A. Rich eds., 1921)).

         Finally, due to the allocation of the burden of proof, when an employee seeks coverage for injuries that "may have resulted from one of two causes" and only one of those causes is compensable under the Act, "the [claim] must fail if [the] evidence does not show that the damage was produced by the [compensable] cause." See A. N. Campbell & Co. v. Messenger, 171 Va. 374, 377, 379 (1938) (quoting Norfolk & W. Ry. v. Poole's Adm'r, 100 Va. 148, 153-54 (1902)) (decided under the same "arising out of" language in an earlier version of the Act); see also Clifton v. Clifton Cable Contracting, L.L.C., 54 Va.App. 532, 538-40, 543 (2009) (holding under Code ยง 65.2-101 that where an employee's death could have resulted from "multiple possib[le]" causes, only ...

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