Boys and Girls Club, et al. v Keith Marshall, etc

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Annunziata and Senior Judge Hodges
Argued at Alexandria, Virginia
BOYS AND GIRLS CLUB OF VIRGINIA AND
TIG PREMIER INSURANCE COMPANY
OPINION BY
v. 	Record No. 0264-01-4 	JUDGE JAMES W. BENTON, JR.
OCTOBER 30, 2001
KEITH FITZGERALD MARSHALL, DECEDENT, AND
DAVANT MARSHALL, A MINOR,
BY HIS GRANDMOTHER AND
NEXT FRIEND, CAROLYN MARSHALL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Joseph F. Giordano (Thomas E. Dempsey;
Semmes, Bowen & Semmes, on brief), for
appellants.
No brief or argument for appellees.
The sole issue raised by this appeal is whether the
Workers' Compensation Commission erred in finding that Keith
Fitzgerald Marshall's unexplained death arose in the course of
his employment.1 We affirm the commission's award.
1 The Boys and Girls Club of Virginia, the employer,
contends that the commission erred in finding that "Marshall's
unexplained death arose out of and in the course of his
employment." 	In its opinion, the commission ruled, however,
that "the employer's written statement argues only that
[Marshall] was not in the course of employment at the time of
his injury." 	Thus, the commission "deem[ed] the other
exceptions initially made to be waived and abandoned" and
limited its review to this single issue. 	The commission's
ruling is based upon application of its Rule 3.2. 	We have
consistently held that issues which were not properly preserved
before the commission cannot be raised on appeal. 	Overhead Door
Co. of Norfolk v. Lewis, 29 Va. App. 52, 62, 509 S.E.2d 535, 539

I.
By well established principles, we view the evidence in the
record in the light most favorable to the party prevailing
before the commission. 	Crisp v. Brown's Tysons Corner Dodge,
Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). 	So
viewed, the evidence proved that the Boys and Girls Club of
Virginia employed Marshall as its cultural and educational
activities director. 	The employer's executive director
testified that Marshall's duties included supervising children
in the aquatic center and serving as the lifeguard.
On August 24, 1999, after Marshall supervised an open swim
session for a group of children, he sent the children to the
locker room to change. 	The executive director testified that
this was the last swim session of the day and that the children
were responsible for getting from the pool to the next area of
the club on their own. 	After that session ended, Marshall was
expected to "return to the front counter area and do general
supervision of the children and interact with the parents as
they came in" to get their children. 	Shortly after the children
went to the locker room, however, Marshall was discovered
unconscious in the pool.
(1999); Southwest Architectural Products, Inc. v. Smith, 4 Va.
App. 474, 478, 358 S.E.2d 745, 747 (1987). 	See also Rule 5A:18.
Moreover, the employer does not raise as an issue on appeal
whether the commission erred in so limiting its consideration of
the issues before it. 	For these reasons, we limit our review to
the issue decided by the commission.
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The executive director testified that no one witnessed the
incident. 	He also testified that, as a trained lifeguard,
Marshall was "responsible for the safety and well-being of all
[their] patrons." 	The executive director further testified that
Marshall informed him some weeks prior to his death that he had
been "trying to increase the length that he could swim
underwater in the pool." 	He testified that although Marshall
had responsibility for pool maintenance, endurance swimming was
not one of Marshall's assigned duties.
The record contains a pre-hospital patient care report, a
hospital triage report, a hospital emergency department report,
and an autopsy report. 	These reports contain conflicting
accounts of the discovery of Marshall's body in the pool. 	The
pre-hospital report prepared by the emergency response team
indicates: 	"lifeguard at Boys Club pool, swimming laps,
underwater. 	Other personnel at pool states they left & came
. . . 5 min later & found pt. floating in water." 	The triage
report states: 	"pt. found by EMS in swimming pool
unresponsive." 	The emergency department report dictated by a
physician recites the following:
Paramedics report that the patient was
attempting some type of endurance swim.
Bystanders reported that he had swam three
lengths of a 25 yard pool underwater and
then suddenly "blacked out." 	Bystanders
pulled him off the bottom of the pool, and
CPR was begun. 	Paramedics arrived very
quickly and found the patient in full
cardiac arrest.
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The autopsy report gives the cause of death as "drowning" and
recites that Marshall "was found unresponsive in the swimming
pool where he worked."
The deputy commissioner found that "no evidence was
presented to explain how [Marshall] had ended up in the pool
. . . [or] to substantiate [the] suggestion [he might have been
engaging in some endurance swimming at the time]." 	He applied
the unexplained death presumption and awarded benefits to
Marshall's minor dependant. 	On review, the commission found
that no evidence proved how long Marshall was in the pool after
the children left and that Marshall's "brief swim" in the pool
followed immediately upon the departure of the children. 	The
commission also ruled that Marshall's death was unexplained and
applied the "unexplained death" presumption.
In addition to approving the deputy commissioner's
application of the presumption, the majority of the commission
found that Marshall was at work and engaged in the activities of
his employer shortly before his death, that Marshall was where
he was expected to be, and that no evidence proved how much time
passed between the children leaving the pool and the discovery
of Marshall's body. 	The commission also found that the
executive director knew Marshall had engaged in underwater
endurance swims, that Marshall's employer had acquiesced in the
activity, and that the endurance swimming activity incidentally
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benefited the employer. 	Thus, the commission affirmed the award
of benefits to Marshall's minor dependent.
II.
Code § 65.2-101 requires a person who claims benefits under
the Workers' Compensation Act to prove an "injury by accident
arising out of and in the course of the employment."
[T]he language "in the course of" refers to
the time, place, and circumstances under
which the accident occurred. 	An accident
occurs during the course of the employment
if it takes place within the period of
employment, at a place where the employee
may reasonably be expected to be, and while
the employee is reasonably fulfilling the
duties of the employment or is doing
something reasonably incidental to it.
Briley v. Farm Fresh, Inc., 240 Va. 194, 197, 396 S.E.2d 835,
836-37 (1990) (citation omitted). 	The Supreme Court long ago
adopted the following rule:
[W]here an employee is found dead as the
result of an accident at his place of work
or near-by, where his duties may have called
him during the hours of his work, and there
is no evidence offered to show what caused
the death or to show that he was not engaged
in his master's business at the time, the
court will indulge the presumption that the
relation of master and servant existed at
the time of the accident and that it arose
out of and in the course of his employment.
Southern Motor Lines v. Alvis, 200 Va. 168, 171-72, 104 S.E.2d
735, 738 (1958).
Although one commissioner believed the evidence failed to
prove Marshall was swimming when he drowned, the majority of the
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commission found that Marshall had taken a "brief swim." 	The
commission unanimously found, however, that the Alvis
presumption applied. 	The commission's findings include the
following:
[Marshall] only shortly before his death was
unquestionably engaged in the activities of
the employer, i.e., supervising the swimming
activities of children under his care. 	No
evidence was presented regarding how much
time passed after [Marshall] had dismissed
the children to the locker room and the time
at which [Marshall] was found unresponsive
in the pool. 	Absent such evidence, . . .
[the commission] specifically . . .
infer[red] that the passage of time was only
brief, and the brief swim that [Marshall]
attempted did not take him out of the course
of employment.
Credible evidence establishes that Marshall drowned while
at work. 	He had released children from the pool to shower
shortly before he drowned in the pool. 	The commission drew the
inference from the circumstances and Marshall's duties as a
lifeguard, that his activities in and around the pool before the
children left the shower room related to what he was employed to
do. 	Although the executive director testified that underwater
endurance swimming was not one of Marshall's "duties," we cannot
say the commission erred in finding that this testimony was not
probative of whether that activity bore a relation to Marshall's
conditioning and skills as a lifeguard. 	Accordingly, we affirm
the commission's ruling that the unexplained death presumption
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was applicable and that the evidence did not rebut the
presumption.
III.
A majority of the commission made additional findings and
ruled further that the credible evidence in the record proved,
without application of the presumption, that Marshall's death
arose in the course of his employment. 	The findings include the
following:
[I]t was unnecessary for Marshall to
immediately leave the pool area, at least
while the children were still in the locker
room area. 	Even more significantly, we
reject the argument of the employer that
such a deviation, if it had been established
by factual evidence, would take Marshall out
of the course of employment.
* 	* 	* 	* 	* 	* 	*
The facts in this case establish that the
employer, through [the executive director]
knew that [Marshall] had been practicing
underwater endurance swims. 	There is no
evidence that [the executive director], as
[Marshall's] supervisor, advised against it
in any way or even discouraged [Marshall's]
participation in this activity.
Accordingly, we conclude that the employer
acquiesced in the activity. 	Furthermore, we
conclude that even this activity had more
than an incidental benefit to the employer,
in that it would condition [Marshall] for
any life saving necessary on behalf of his
charges, of which the employer most
certainly was aware. 	Additionally, it is
apparent that this was an activity that
[Marshall] could not engage in while the
children were swimming, but he could attempt
the endurance swims during the short period
when the children changed clothes in the
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locker room. 	On this basis also, we find
the employer's arguments are without merit.
According to well established principles, "[f]actual
findings of the commission that are supported by credible
evidence are conclusive and binding upon this Court on appeal."
Southern Iron Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428
S.E.2d 32, 34 (1993). 	Moreover, as the finder of fact, "[t]he
commission was privileged to draw a reasonable inference from
the evidence." 	Buzzo v. Woolridge Trucking, Inc., 17 Va. App.
327, 333, 437 S.E.2d 205, 209 (1993). 	When it does so, "[t]hat
action of the commission is a finding of fact subject to the
credible evidence standard." 	Id.
The commission based its findings on the executive
director's testimony and drew reasonable inferences from that
testimony. 	"Issues of weight and credibility are uniquely
within the province of the commission, and we will not
substitute our judgment for that of the trier of fact."
Goodyear Tire & Rubber Co. v. Harris, 35 Va. App. 162, 171, 543
S.E.2d 619, 623 (2001). 	We hold, therefore, that the
commission's findings are supported by credible evidence in the
record and reasonable inferences drawn from that evidence.
We have specifically held that an employee's personal
activities at work may, under certain circumstances, fall within
the course of employment.
Even though the activity from which the
injury arises has no direct relationship to
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the employment, yet if it is a common
practice among the employees, is acquiesced
in by the employer, if the employer has
allowed the employee to use the employer's
tools and facilities, if the accident occurs
during working hours, and if the accident
occurs during a lull in regular work so that
the questioned activity does not interfere
with the employee's duties, such
considerations have been held to bring the
employee's activities in his own behalf
within the scope of employment.
Ablola v. Holland Road Auto Center, 11 Va. App. 181, 184, 397
S.E.2d 541, 543 (1990).
The commission found that Marshall's swim in the pool
occurred during his normal working hours and a lull in his
schedule. 	The commission also found that his swim did not
interfere with his other duties. 	The evidence proved the
executive director was aware of Marshall's swimming activity,
and no evidence indicated he voiced disapproval. 	Moreover, the
commission could reasonably infer from the evidence that
Marshall's "activity had more than an incidental benefit to the
employer," who depended upon Marshall's lifeguarding skills. 	It
is apodictic that a lifeguard's swimming skills above and below
water are integral to his employment responsibilities. 	Thus, we
hold that credible evidence in the record supports the
commission's ruling that Marshall's death arose in the course of
his employment.
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IV.
The employer contends the commission had no authority to
order it to secure the appointment of a guardian so that the
payment of compensation benefits to Marshall's minor dependent
"may commence forthwith." 	The employer cites no authority to
support its argument. 	We previously have held that "[i]n
addition to its statutorily granted powers, the commission also
has incidental powers which are reasonably implied as a
necessary incident to its expressly granted powers for
accomplishing the purposes of the Workers' Compensation Act."
Bader v. Norfolk Redev. & Hous. Auth., 10 Va. App. 697, 702, 396
S.E.2d 141, 144 (1990). 	Code § 65.2-525(c) requires that
whenever payment of compensation over $300 is due to a minor,
the payment shall be made to the guardian of the property of the
minor or to such suitable person appointed by the circuit court
as trustee. 	We hold that the commission did not abuse its
discretion in requiring the employer to take necessary action to
assure the forthwith payment of the awarded compensation
benefits.
For these reasons, we affirm the award.
Affirmed.
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