Freddie Lincoln, Clifton, Jr., etc. v. Clifton Cable Contracting, L.L.C., et. al.

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Kelsey, McClanahan and Beales
Argued at Richmond, Virginia
FREDDIE LINCOLN CLIFTON, JR.,
THE ESTATE OF FREDDIE LINCOLN CLIFTON, JR./
KATHY CORBIN CLIFTON
OPINION BY
v. 	Record No. 2906-08-3 	JUDGE D. ARTHUR KELSEY
AUGUST 11, 2009
CLIFTON CABLE CONTRACTING, L.L.C. AND
ERIE INSURANCE EXCHANGE
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
A. Thomas Lane, Jr., for appellant.
Richard D. Lucas (Lucas & Kite, PLC, on brief), for
appellees.
Upon a review of a sparse evidentiary record, the Workers’ Compensation Commission
held that the widow of Freddie Lincoln Clifton, Jr., failed to prove that her husband’s death arose
out of or in the course of his employment. Finding no error in the commission’s factfinding or
legal reasoning, we affirm.
I.
We view the evidence on appeal in the light most favorable to “the prevailing party
before the commission.” Dunnavant v. Newman Tire Co., 51 Va. App. 252, 255, 656 S.E.2d
431, 433 (2008) (citation omitted).
Clifton worked for Clifton Cable Contracting, L.L.C., a company he and his wife owned.
In July 2006, Clifton was involved in an accident while riding his motorcycle. The accident
occurred on a Sunday after dinner. The motorcycle belonged to Clifton, not his company. A
firefighter medic was the first responder to the scene. Arriving at 4:51 p.m., the firefighter found
Clifton alive but barely so. Clifton was unresponsive and breathing at a rate of about six breaths

a minute. Clifton was evacuated by ambulance. He died at 5:39 p.m. at a designated landing
zone for an Air Care helicopter.
Clifton’s widow filed a claim for death benefits against Clifton Cable Contracting, L.L.C.
At the evidentiary hearing on the claim, Clifton’s widow testified she believed her husband left
after dinner on his motorcycle on a work-related errand, delivering billing statements to the
company bookkeeper. No documentary evidence, however, was offered to corroborate this
testimony. Nor did the bookkeeper testify in support of this assertion. Clifton’s widow
acknowledged that her husband did not typically ride his personal motorcycle for work-related
activities. And she also admitted that, at the time of the accident, she “really didn’t know what
happened firsthand.”
As for the accident itself, no evidence in the record explains how or why it occurred. No
witnesses testified about the accident; the operator of the other vehicle was not deposed or put on
the stand; and no expert testimony or investigatory findings were admitted into evidence
showing either the primary cause of the accident or any of its contributing factors.1
The commission held the preponderance of the evidence did not prove that the accident
arose out of and during the course of Clifton’s employment. The commission reasoned:
There were no witnesses to the decedent’s accident and no
independent information as to the cause. It is speculation to
conclude how the accident occurred. It could have been the result
of carelessness, horseplay, mechanical failure, or other multiple
possibilities. Even the requirement that the decedent be in the
course of his employment is problematical. His widow testified
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1 The deputy commissioner refused to accept the police report “as an exhibit in the
matter” for the purpose of speculating “as to how [the accident] occurred or why it occurred.” In
a reconsideration order, the commission accepted it “for the limited purpose of showing that
there was an accident involving the decedent” and held it had “no probative value as to how or
why the accident occurred.” We treat this ruling as the law of the case since the claimant did not
challenge it on appeal. See Little v. Cooke, 274 Va. 697, 722, 652 S.E.2d 129, 144 (2007)
(holdings uncontested on appeal become “the law of the case”); Lockheed Info. Mgmt. Sys. Co.
v. Maximus, Inc., 259 Va. 92, 108, 524 S.E.2d 420, 429 (2000) (“where no assignment of error
or cross-error is taken to a part of a final judgment, the judgment becomes the law of the case”).

that he did not usually ride his motorcycle in the course of his
employment. Although she testified that on the day in question,
the decedent was delivering some billing, she could not testify as
to what he was doing at the time of the accident.
Despite the weakness of her evidentiary showing, Clifton’s widow argued that the accident was
still compensable under the so-called “death presumption.” The commission found the death
presumption inapplicable and denied the claim.
II.
On appeal, Clifton’s widow contends her testimony proved the compensability of the
claim as a matter of law and, in any event, the death presumption shifted the burden of proof to
the employer to disprove compensability. We disagree with both assertions.
A. 	EVIDENTIARY PROOF OF AN ACCIDENT ARISING
OUT OF AND IN THE COURSE OF THE EMPLOYMENT
To be compensable, an injury must be “by accident arising out of and in the course of the
employment . . . .” Code § 65.2-101. “The words ‘arising out of,’ as used in the Act, refer to the
origin or cause of the injury while the phrase ‘in the course of’ pertains to the time, place and
circumstances under which the accident occurred.” Grand Union Co. v. Bynum, 226 Va. 140,
143, 307 S.E.2d 456, 458 (1983) (citation omitted). “The concepts ‘arising out of’ and ‘in the
course of’ employment are not synonymous and both conditions must be proved before
compensation will be awarded.” PYA/Monarch & Reliance Ins. Co. v. Harris, 22 Va. App. 215,
221, 468 S.E.2d 688, 691 (1996) (citation omitted).
“An injury arises out of one’s employment if there is a causal connection between the
injury and the ‘conditions under which the work is required to be performed.’” Dan River, Inc.
v. Giggetts, 34 Va. App. 297, 304, 541 S.E.2d 294, 297 (2001) (citation omitted). The condition
“must be peculiar to the work, incidental to the character of the business, and not independent of
the master-servant relationship.” Id. (quoting County of Chesterfield v. Johnson, 237 Va. 180,
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183-84, 376 S.E.2d 73, 75 (1989)). On the other hand, an accident occurs in the “course of
employment” when it takes place within the period of employment, at a place where the
employee may be reasonably expected to be, and while he is reasonably fulfilling the duties of
his employment or is doing something which is reasonably incidental thereto. Conner v. Bragg,
203 Va. 204, 208, 123 S.E.2d 393, 396 (1962) (citations omitted).
“The burden of supplying evidence from which the inference can be legitimately drawn
that the injury arose out of and in the course of the employment, rests upon the claimant.” Butler
v. Nolde Bros., Inc., 189 Va. 932, 944, 55 S.E.2d 36, 42 (1949) (quoting Sullivan v. Suffolk
Peanut Co., 171 Va. 439, 443, 199 S.E. 504, 506 (1938)). “Claimant must prove by a
preponderance of the evidence that he has satisfied each requirement.” TBC Corp. v. Stephens,
49 Va. App. 650, 655, 644 S.E.2d 84, 87 (2007); see also Baggett Trans. Co. v. Dillon, 219 Va.
633, 637, 248 S.E.2d 819, 822 (1978).
In this case, the commission found that the preponderance of the evidence failed to prove
how or why the motorcycle accident happened. Accord Hill v. S. Tank Trans., Inc., 44 Va. App.
725, 733, 607 S.E.2d 730, 734 (2005) (affirming denial of benefits where “claimant never
explained how the hazards of the street caused his injuries, thereby eliminating the possibility of
causes totally unrelated to the street risks of employment”). “It is speculation to conclude how
the accident occurred,” the commission held. Clifton’s accident, the commission continued,
“could have been the result of carelessness, horseplay, mechanical failure, or other multiple
possibilities.” Some of those causes could have been compensable; others not.
Equally important, the commission found “problematical” the evidence offered in support
of the assertion that Clifton’s motorcycle ride was “in the course of his employment” with
Clifton Cable Contracting, L.L.C. The commission noted that Clifton’s widow “testified that he
did not usually ride his motorcycle in the course of his employment.” Her testimony, the
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commission added, was inconclusive on the critical issue of what her husband specifically “was
doing at the time of the accident.” He could have finished his work-related errand and continued
riding for personal pleasure, or he could have abandoned the errand altogether with the intent to
come back to it during the next workweek. No witness testified that he dropped off any billing
information or that he was expected to do so. Nor were any business records offered into
evidence corroborating the assertion that he was on a work-related errand that Sunday evening.
Cf. Dreyfus & Co. v. Meade, 142 Va. 567, 576, 129 S.E. 336, 339 (1925) (employee’s injury
while on a “personal errand” about “two blocks away” did not occur in the course of the
employment).
Under our standard of review, we defer to the commission’s assessment of the “probative
weight” (or, in this case, the lack of it) of the evidence — recognizing that the commission “is
free to adopt that view ‘which is most consistent with reason and justice.’” Georgia-Pac. Corp.
v. Robinson, 32 Va. App. 1, 5, 526 S.E.2d 267, 269 (2000) (citation omitted). We treat the
commission’s factfinding as “conclusive and binding,” Berglund Chevrolet v. Landrum, 43
Va. App. 742, 749-50, 601 S.E.2d 693, 697 (2004) (quoting Code § 65.2-706(A)), so long as a
“reasonable mind could conclude” as the commission did based upon the evidence before it,
Perry v. Delisle, 46 Va. App. 57, 67, 615 S.E.2d 492, 497 (2005) (en banc) (emphasis in original
and citation omitted).2 Thus, “[w]here divergent or conflicting inferences reasonably might be
drawn from established facts their determination is exclusively for the fact-finding body.”
Hopson v. Hungerford Coal Co., 187 Va. 299, 308, 46 S.E.2d 392, 396 (1948).3
2 Because “we do not judge the credibility of witnesses or weigh the evidence on appeal,”
Hoffman v. Carter, 50 Va. App. 199, 209, 648 S.E.2d 318, 323 (2007) (citation omitted), our
personal view of the underlying factual debate plays no role in the task of appellate review. See
Perry, 46 Va. App. at 67, 615 S.E.2d at 497.
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3 We have not overlooked the claimant’s citation to Marketing Profiles, Inc. v. Hill, 17
Va. App. 431, 437 S.E.2d 727 (1993) (en banc), a case in which we affirmed the commission’s

B. 	VIRGINIA’ S DEATH PRESUMPTION
Under certain circumstances, Virginia courts have relieved death claimants of the burden
of proof by presuming the accident arose out of and in the course of employment. See generally
Lawrence J. Pascal, Virginia Workers’ Compensation Law & Practice § 3.03[3][e] (3d ed. 2000
& Supp. 2009). As one early case explained:
[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.
S. Motor Lines Co. v. Alvis, 200 Va. 168, 171-72, 104 S.E.2d 735, 738 (1958) (internal citations
omitted) (emphasis added); see also Sullivan, 171 Va. at 447-48, 199 S.E. at 507-08; Boys &
Girls Club of Va. v. Marshall, 37 Va. App. 83, 88, 554 S.E.2d 104, 106 (2001); Thomas Nelson
Ltd. P’ship v. Fritz, 11 Va. App. 269, 273, 397 S.E.2d 891, 894 (1990).
This presumption, however, remains limited to its “original parameters.” K & G
Abatement Co. v. Keil, 38 Va. App. 744, 758, 568 S.E.2d 416, 423 (2002). It applies only to
cases where the employee is “found dead . . . at his place of work or near-by,” Alvis, 200 Va. at
171, 104 S.E.2d at 738, and, even then, only when no plausible inference suggests the accident
might be noncompensable, see Baggett Transp., 219 Va. at 644, 248 S.E.2d at 825 (holding the
“occupation as a truck driver” did not subject employee to the risk of “being shot” while
“alongside a public highway”).
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finding that an employee’s vehicular accident arose out of and in the course of the employment.
The appellate issue in that case, however, was whether the claimant’s proof was sufficient for the
commission’s findings — that is, whether the claimant’s evidence established a prima facie case.
We held it did. Here, however, the factfinder found the evidence wanting. The issue for us is
whether the evidence preponderates so strongly that no rational factfinder could resist it.

The factual “circumstances which form the basis of the presumption must be of sufficient
strength from which the only rational inference to be drawn is that death arose out of and in the
course of the employment.” Hopson, 187 Va. at 305, 46 S.E.2d at 395 (emphasis added). There
must be “an absence of contrary or conflicting evidence on the point.” Id.; see also Baggett
Transp., 219 Va. at 644, 248 S.E.2d at 826. When “conflicting inferences might logically be
drawn from the circumstances,” and the evidence supports a permissible inference that “there
was no causal relationship between the death and the employment, the presumption [is] not
applicable.” Metcalf v. A.M. Express Moving, 230 Va. 464, 470, 339 S.E.2d 177, 181 (1986).
Thus, “no presumption can be said to arise” when the accident occurred “outside the decedent’s
regular working hours” and it is doubtful whether he was “actually on the employer’s business.”
Butler, 189 Va. at 944-45, 55 S.E.2d at 42.
This extrastatutory death presumption cannot be broadened beyond its fixed parameters.
Making a “change in the parameters” of the death presumption, we have cautioned, “is a policy
decision to be made, if at all, by the General Assembly.” K & G Abatement, 38 Va. App. at 757,
568 S.E.2d at 422 (citing Pinkerton’s, Inc. v. Helmes, 242 Va. 378, 381, 410 S.E.2d 646, 648
(1991)). Since its creation in the courts a half a century ago, “the General Assembly has not
chosen to expand the presumption beyond its original parameters.” Id. at 758, 568 S.E.2d at 423.
Under the circumstances of this case, the commission did not err in finding the death
presumption inapplicable. The firefighter medic did not find Clifton at his “place of work or
near-by,” Alvis, 200 Va. at 171, 104 S.E.2d at 738, but rather on a public highway.4 And his
widow’s testimony — which the commission found “problematical” — was not convincing
4 Clifton Cable Contracting, L.L.C. also argues that Clifton, while mortally wounded, was
not dead when discovered by the firefighter medic after the accident. Given our holding, we
need not decide whether Clifton’s near-death condition would trigger the death presumption if
Clifton had been found at his place of work or near-by.
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enough to render implausible the possibility of noncompensable causes of the accident wholly
outside the course of Clifton’s employment. See Butler, 189 Va. at 945, 55 S.E.2d at 42 (finding
widow’s testimony regarding decedent’s work-related errand not dispositive). Thus, it cannot be
said that “the circumstances which form the basis of the presumption” were of “sufficient
strength from which the only rational inference to be drawn is that death arose out of and in the
course of the employment.” Metcalf, 230 Va. at 469, 339 S.E.2d at 180 (quoting Baggett
Transp., 219 Va. at 642, 248 S.E.2d at 824 (quoting in turn Hopson, 187 Va. at 305, 46 S.E.2d at
395)) (emphasis added).
III.
Finding no error in the commission’s factfinding or its reasons for not applying the death
presumption, we affirm.
Affirmed.