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PRINCE WILLIAM COUNTY SCHOOL
BOARD
v.
FOGARTY
AUGUST 31, 1999
Record No. 1866-98-4
PRINCE WILLIAM COUNTY SCHOOL BOARD
v.
SHARON E. FOGARTY
FROM THE VIRGINIA WORKERS’ COMPENSATION
COMMISSION
Present: Chief Judge Fitzpatrick, Judge Lemons
and Senior Judge Duff
Argued at Alexandria, Virginia
MEMORANDUM OPINION* BY JUDGE CHARLES
H. DUFF
Thomas C. Palmer, Jr. (Brault, Palmer, Grove,
Zimmerman, White & Mims, on briefs), for appellant.
Sharon E. Fogarty, pro se.
Prince William County School Board (employer)
appeals a decision of the Workers’ Compensation Commission
(commission) awarding benefits to Sharon E. Fogarty (claimant).
Employer contends the commission erred in finding that claimant
proved she sustained an injury by accident arising out of her
employment on September 27, 1995. [1] Finding
no reversible error, we affirm the commission’s decision.
We review the evidence in the light most
favorable to claimant as the prevailing party. When so viewed,
the record establishes the following:
On September 27, 1995, claimant worked for
employer as an assistant principal at Bennett Elementary
School. On that date, she and Graham Spencer, the school’s
principal and her supervisor, were standing outside the
school in the parking lot supervising the children as they
boarded the school buses to go home. Claimant described part
of her assistant principal duties as doing whatever the
principal directed her to do.
Spencer’s daughter drove into the parking lot
and parked her car. She had Barney, a Norwegian Elkhound and the
Spencers’ family pet, in the car with her. She planned to take
Barney to the veterinarian and had stopped at the school to pick
up a check from her father.
Claimant testified that Spencer’s daughter
walked over to where she and Spencer were located. Claimant saw
Spencer and his daughter talking. At that point, Spencer directed
claimant to go over to the car and "meet the dog."
Claimant testified that she declined twice but Spencer continued
to insist that she go and see the dog. Claimant then followed
Spencer’s daughter to the car, where she began petting the dog
and talking to Spencer’s daughter. At that point, the dog, who
had his head out of the car window, bit claimant’s nose. On the
way to the hospital, Spencer lamented to claimant, "Why did
I make you go over there?"
The commission, in affirming the deputy
commissioner, accepted claimant’s testimony and found that she
"twice declined Spencer’s request that she meet Barney, but
finally acquiesced to the request of her supervisor when he
directed her to do so a third time." The commission found
that "[h]er contact with the dog, although not a part of her
regular work duties, was in direct response to a demand of her
supervisor." Thus, the commission concluded that claimant’s
evidence proved that her "injury resulted from an actual
risk of her employment."
"The commission’s decision that an
accident arises out of the employment involves a mixed question
of law and fact and is thus reviewable on appeal." Southside
Virginia Training Ctr. v. Shell, 20 Va. App. 199, 202, 455
S.E.2d 761, 763 (1995).
In Arrington v. Murray, 182 Va. 1, 28
S.E.2d 19 (1943), the Supreme Court held that an injury arises
out of the employment when the employee is performing work
directed by one of the business partners, even if the work was
not in the trade, business, or occupation of the employer but was
personal to the partner and performed at his residence. See
id. at 5, 28 S.E.2d at 20-21. The Supreme Court agreed
with the commission that it would be inequitable to allow an
employer to direct an employee to perform work and then deny that
the employee was protected by the Virginia Workers’ Compensation
Act. See id. at 5, 28 S.E.2d at 21. Where the
employee is injured while performing an activity that the
employer has instructed him or her to do, that work constitutes
part of an employee’s employment responsibilities and required
work, even though different from his or her usual and regular
tasks performed in the employer’s business. See Honaker
& Feeney v. Hartley, 140 Va. 1, 13, 124 S.E. 220, 223
(1924).
As one authority has noted, activity that is
not an integral or normal part of the job becomes such where the
employer’s request clearly conveys the understanding that the
employee was to take part in the activity. See 2 Arthur
Larson, Larson’s Workers’ Compensation Law
? 22.04(2) (1999). Claimant’s unrebutted testimony was that
among her job duties was to do whatever Spencer directed her to
do. This testimony, coupled with the three "directions"
by Spencer that she meet the dog, provides credible evidence in
support of the commission’s decision that the accident arose out
of claimant’s employment.
Employer’s reliance on Lipsey v. Case,
248 Va. 59, 445 S.E.2d 105 (1994), is misplaced. In that case,
Lipsey was a "working student." In exchange for
performing duties on the farm, she received instruction on farm
operation, riding lessons, and room and board. She shared living
facilities with two other working students. A dog belonging to
one of these students bit Lipsey on her face during a lunch break
at the house. The Court held that while the injury occurred in
the course of the employment it did not arise out of the
employment. The Court found no causal connection between Lipsey’s
required work and her injury. See id. at 61-62, 445
S.E.2d at 107. Further, Lipsey did not allege that the employer
required her to have physical contact with the dog. Although the
dog lived in the house and freely roamed the farm, the employer
did not direct Lipsey to "meet" the dog as claimant was
repeatedly instructed to do by Spencer.
The record supports the commission’s finding
that claimant was instructed by her supervisor to go see his dog,
Barney, and that her contact with the dog, while not a part of
her regular work duties, was in direct response to this
instruction by the supervisor. With her duties being what the
principal directed her to do, she clearly felt obligated to
comply.[2] Thus, claimant’s injury resulted from an actual risk of
her employment.
Accordingly, the commission’s opinion is
affirmed.
Affirmed.
* Pursuant to Code ? 17.1-413,
recodifying Code ? 17-116.010, this opinion is not
designated for publication.
FOOTNOTES:
[1] This was the only issue before the commission when it
rendered its decision. Therefore, we decline to address any
additional issues presented by claimant in her brief on appeal.
[2] We do not imply that a request of an employee to commit
a crime or an act that would manifestly result in serious
personal injury would have to be followed. Each case is fact
specific, and we find sufficient credible evidence, on the facts
in the record, to support the commission’s opinion.
