Horner Lawn Service, Inc., et al. v Roy T.Compton

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Senior Judge Duff
HORNER LAWN SERVICE, INC. AND
COMMERCIAL UNION MIDWEST INSURANCE COMPANY
MEMORANDUM OPINION*
v. 	Record No. 2043-99-2 	PER CURIAM
FEBRUARY 8, 2000
ROY THOMAS COMPTON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Charles F. Midkiff; Joshua M. Wulf;
Midkiff & Hiner, P.C., on brief), for
appellants.
(Benjamin M. Smith, Jr.; Kilgore & Smith, on
brief), for appellee.
Horner Lawn Service, Inc. and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Roy Thomas Compton
proved that he sustained an injury by accident arising out of
his employment on September 17, 1997. 	Upon reviewing the record
and the briefs of the parties, we conclude that this appeal is
without merit. 	Accordingly, we summarily affirm the
commission’s decision. 	See Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. 	See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 	So
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

viewed, the evidence proved that Compton was employed as a
landscape worker for employer. 	On September 17, 1997, Compton
rode as a passenger in employer's truck while en route from one
job site to another job site. 	The truck, which was driven by
his co-worker, Frank Ely, was involved in a head-on automobile
collision. 	No evidence indicated that the driver or Compton
detoured from the normal route between the two jobs or engaged
in any activity not related to their employment.
According to the medical records, Compton was thrown from
the truck and lost consciousness for a period of time. 	After
Compton regained consciousness in the hospital, he remembered
leaning to retrieve his cigarettes from the floor of the truck.
He could not remember anything about the accident or the events
that followed the accident.
In holding that Compton proved that he sustained an injury
by accident arising out of his employment, the commission found
that Compton's "failure to recall the cause of his accident is
not fatal to his claim." 	The commission relied upon the "actual
street risk" rule found in Marketing Profiles, Inc. v. Hill, 17
Va. App. 431, 434-35, 437 S.E.2d 727, 729 (1993), to support its
decision.
In Marketing Profiles, we recognized the following:
To satisfy the "arising out of" prong
of the compensability test, [the employee]
had to prove that "there is apparent to the
rational mind upon consideration of all the
circumstances, a causal connection between
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the conditions under which the work is
required to be performed and the resulting
injury." 	When an employee's presence on the
streets is shown to be in the course of
employment, "Virginia, following the
majority rule, has adopted what is known as
the 'actual risk test,' under which, in the
words of Larson, 'it is immaterial even
whether the degree of exposure is increased,
if in fact the employment subjected the
employee to the hazards of the street,
whether continuously or infrequently.'"
Id. at 434, 437 S.E.2d at 729 (citations omitted).
The evidence proved and the commission found that Compton's
injuries were caused by an automobile accident. 	Compton was a
passenger in his employer's truck, which was being driven by his
co-employee, when he was injured. 	He was in transit between two
job sites, following the normal route with no detours. 	"Nothing
in the record establishes that [Compton] was engaged in
activities unrelated to his employment or that he was on the
road as a result of a personal mission." 	Id. at 435, 437 S.E.2d
at 729. 	Indeed, credible evidence proved that when Compton was
injured in the automobile accident, "his travel on the highway
. . . linking . . . [the two job sites] was travel 'which he was
authorized and obligated to perform[; therefore,] the hazards of
highway travel thus became necessary incidents of his
employment.'" 	Id. at 434-35, 437 S.E.2d at 729 (citation
omitted).
As we recognized in Marketing Profiles, "'[i]f there is
evidence, or reasonable inferences can be drawn from the
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evidence, to support the Commission's findings, they will not be
disturbed on review, even though there is evidence in the record
to support a contrary finding.'" 	Id. at 435, 437 S.E.2d at 430
(quoting Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va.
App. 276, 279, 348 S.E.2d 876, 877 (1986)). 	Compton carried his
burden of proving evidence and inferences from that evidence
that his injury arose out of employment. 	No evidence in this
record supports a finding contrary to that of the commission.
For these reasons, we affirm the commission's decision.
Affirmed.
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