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POWER CO., et al.

March 3, 2000

Record No. 990534





Melvin R. Hughes, Jr., Judge

Present: Carrico, C.J., Compton,[1] Lacy, Hassell, Keenan, Koontz,
and Kinser, JJ.


In this personal injury action, the sole
question is whether the circuit court correctly ruled that an
employee’s exclusive remedy against an employer is under the
Virginia Workers’ Compensation Act (the Act), Code
?? 65.2-100 through -1310. Because we conclude that the
employee suffered an "injury by accident arising out of and
in the course of . . . employment," Code
? 65.2-101, we will affirm the circuit court’s
judgment sustaining the employer’s special plea in bar.


Virginia Electric and Power Company (Virginia
Power) arranged for an independent instructor to teach an
aerobics class at its Richmond office for the benefit of its
employees. Participation in the class by Virginia Power’s
employees was voluntary. Virginia Power advertised the class on
its bulletin boards and in its newsletter. It did not charge for
the use of its facility, but participating employees were
required to pay a fee to the instructor for the class.

The plaintiff, Laura Lee Combs, was an employee
of Virginia Power. During her lunch hour on May 24, 1994, Combs
participated in the aerobics class and, while doing so, developed
a severe headache. The aerobics instructor assisted Combs in
lying down and then called Virginia Power’s Employee Health
Services (EHS), as she had been instructed to do by the EHS
coordinator of health programs. The EHS receptionist answered the
call and informed Sharon Robinson, EHS coordinator of
administrative support, that someone in the aerobics class had a
headache and needed some medication. Shortly thereafter, Robinson
went to the aerobics room to determine what was happening with
regard to Combs. When Combs’ head pain did not subside, she
was taken to the EHS "quiet room" to rest. The
"quiet room" is used by employees who become ill at
work, or by recuperating employees who have returned to work
after an accident or illness and need to rest during the workday.
When an employee is using the room, an EHS staff member is
required to be in the office, and the employee is to be checked
at regular intervals.

After she went to the "quiet room,"
Combs was not examined by any medical or emergency personnel, nor
was her condition regularly monitored by anyone. Approximately
two hours after Combs entered the "quiet room,"
Robinson checked on Combs and discovered that Combs had vomited
on herself and was in a coma-like state. Robinson then called
security. Combs was eventually transported by ambulance to the
Medical College of Virginia where she was diagnosed with
intracranial bleeding, a right giant middle cerebral aneurysm,
and an intraparenchymal hemorrhage. She subsequently underwent
two neurological operations. After release from the hospital, she
entered a rehabilitation center where she received therapy for
her partial paralysis and cognitive brain damage.

On April 30, 1996, Combs filed a motion for
judgment against Virginia Power and four of its employees,
alleging that the defendants owed her a duty to "have in
place proper procedures, and to properly train . . . personnel,
so that employees using EHS could do so without harm to
themselves and detriment to their well-being." Combs further
asserted that the defendants breached these duties and were
negligent by, inter alia, failing to properly train
non-medical personnel working in EHS; failing to implement
procedures to provide appropriate medical care to Virginia Power
employees who seek treatment at EHS, especially when licensed
healthcare professionals are unavailable; and failing to provide
proper medical care and treatment when Combs suffered a medical
emergency, thereby leaving her unattended for approximately two
hours before calling security and a rescue squad. Finally, Combs
alleged that the defendants’ negligence proximately caused
her injury and damages.

In response, the defendants filed grounds of
defense and a "Special Plea of Workers’ Compensation
Bar." In the special plea, they asserted that the
exclusivity provision of the Act, Code ? 65.2-307, barred
Combs’ claim and therefore deprived the circuit court of
subject matter jurisdiction over her claim.

[3] Accordingly, the defendants asked
the court to dismiss Combs’ action.

After reviewing the parties’ memoranda,
the circuit court sustained the special plea and dismissed
Combs’ action with prejudice. In a letter opinion, the court
concluded that the aggravation and acceleration of Combs’
pre-existing aneurysm was "an injury by accident arising out
of and in the course of her employment with" Virginia Power,
and that her action was therefore barred by the exclusivity
provision of the Act. We awarded Combs this appeal.


"An injury is subject to the exclusivity
provision of the Act if it is the result of an accident and
arises out of and in the course of the employment." Richmond
Newspapers, Inc. v. Hazelwood
, 249 Va. 369, 372, 457 S.E.2d
56, 58 (1995). Thus, the critical inquiry in this appeal is
whether Combs’ injury was (1) an injury by accident, (2)
arising out of, (3) and in the course of, her employment. See
Code ? 65.2-101; Briley v. Farm Fresh, Inc., 240 Va.
194, 197, 396 S.E.2d 835, 836 (1990). If any one of these
elements is missing, then Combs’ claim is not covered by the
Act, Snead v. Harbaugh, 241 Va. 524, 526, 404 S.E.2d 53,
54 (1991), and she can proceed with her personal injury claim in
the circuit court. Thus, we will address each of these criteria seriatim.


This Court recently addressed the requirements
of an "injury by accident" in Southern Express v.
, 257 Va. 181, 509 S.E.2d 836 (1999). There, we held
that an "injury by accident" occurs when the injury
appears "suddenly at a particular time and place[,] and upon
a particular occasion[;]" when it is "caused by an
identifiable incident [,]or sudden precipitating event[;]"
and when the injury results "in an obvious mechanical or
structural change in the human body." Id. at 187, 509
S.E.2d at 839. The circuit court found all these factors present
with regard to Combs’ injury, and we agree.

At the outset, it must be emphasized that
Combs’ injury is not the aneurysm itself. Instead, her
injury is the aggravation, exacerbation, and/or acceleration of
the aneurysm. That injury resulted from the alleged negligent
emergency medical care, or lack thereof, that she received from
Virginia Power and its EHS employees after she suffered a severe
headache during the aerobics class. Thus, Combs’ argument
that there is no evidence with regard to when the aneurysm
initially started leaking or when she experienced the first onset
of symptoms is irrelevant to the question whether she sustained
an "injury by accident."

The record in this case, in particular
Combs’ motion for judgment, demonstrates that she suffered
an "injury by accident" under Code ? 65.2-101.
The particular time, place, and occasion of her injury was at the
EHS "quiet room" in Virginia Power’s Richmond
office, during the two to three hours that elapsed from when she
first developed the headache and was taken to the "quiet
room" until she was transported to the hospital. The
identifiable or precipitating event was the alleged negligent
emergency medical treatment that she received during this span of
time. Finally, Combs’ paralysis and cognitive brain damage
represent the mechanical or structural changes in her body that
resulted from her injury. Thus, all the requirements of an
"injury by accident" are present in this case. See
Winn v. Geo. A. Hormel & Co., 560 N.W.2d 143, 149
(Neb. 1997)(holding that negligent medical treatment at
employer’s first-aid medical facility may constitute


The phrase "arising out of" pertains
to the origin or cause of an injury. County of Chesterfield v.
, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989); Bradshaw
v. Aronovitch
, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). In
determining whether an injury arises out of employment, we have
repeatedly quoted with approval the test enunciated in In re
Employers’ Liab. Assur. Corp., Ltd.
, 102 N.E. 697 (Mass.
1913). An injury

arises "out of" the employment, when
there is apparent to the rational mind upon consideration of all
the circumstances, a causal connection between the conditions
under which the work is required to be performed and the
resulting injury. Under this test, if the injury can be seen to
have followed as a natural incident of the work and to have been
contemplated by a reasonable person familiar with the whole
situation as a result of the exposure occasioned by the nature of
the employment, then it arises "out of" the employment.
But it excludes an injury which cannot fairly be traced to the
employment as a contributing proximate cause and which comes from
a hazard to which the workmen would have been equally exposed
apart from the employment. The causative danger must be peculiar
to the work and not common to the neighborhood. It must be
incidental to the character of the business and not independent
of the relation of master and servant. It need not have been
foreseen or expected, but after the event it must appear to have
had its origin in a risk connected with the employment, and to
have flowed from that source as a rational consequence.

Id. at 697; accord Lucas v.
, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972); Conner
v. Bragg
, 203 Va. 204, 208-09, 123 S.E.2d 393, 396-97 (1962);
Bradshaw, 170 Va. at 335, 196 S.E. at 686.

In Virginia, we apply an "actual risk
test," meaning that the employment must expose the employee
to the particular danger causing the injury, notwithstanding the
public’s exposure generally to similar risks. Lucas,
212 Va. at 563, 186 S.E.2d at 64. Thus, if there is a causal
connection between Combs’ injury and the conditions of her
employment, then her injury arose out of her employment. See
United Parcel Serv. of Am. v. Fetterman, 230 Va. 257, 258,
336 S.E.2d 892, 893 (1985) ("An accident arises out of the
employment when there is a causal connection between the
claimant’s injury and the conditions under which the
employer requires the work to be performed.").

Combs argues that EHS was not actually a clinic
for the treatment of employee health problems and that,
therefore, it was not a condition of her employment. Thus, she
contends that her injury did not "arise out of" her
employment. Assuming that Combs is correct about the purpose of
EHS, the fact remains that on the day in question, the risk of
employment was the alleged negligent emergency medical treatment
by EHS personnel, which aggravated her pre-existing aneurysm.
Combs was exposed to this risk or condition of employment solely
because she was a Virginia Power employee. The public generally
would not have been exposed to the same risk because only
Virginia Power employees could utilize EHS. In fact, Combs
alleged in her motion for judgment that Virginia Power and its
employees owed certain duties to her "so that employees
using EHS could do so without harm to themselves and detriment to
their well-being," and that the defendants violated those
duties, thereby causing injury to her. She further asserted that
the employee defendants were acting within the scope of their
employment when they allegedly injured her.

Combs, nevertheless, argues that her situation
is like that of the employee in Taylor v. Mobil Corp., 248
Va. 101, 444 S.E.2d 705 (1994), because she did not
involuntarily, or out of "default[]" as the circuit
court found, seek medical treatment at EHS. In Taylor, an
employee visited a doctor at his employer’s clinic for
treatment of a heart condition. The employee ultimately suffered
a fatal heart attack at home although the doctor had advised him
that he was not suffering from heart disease. Id. at
103-04, 444 S.E.2d at 706-07. This Court concluded that the
employee’s risk of exposure to negligent treatment by the
doctor was not an actual risk of employment because the employee
voluntarily opted to use the doctor at the employer’s
clinic. He was not required to do so by his employer, nor was he
treated by that doctor because he became ill at work. Id.
at 107, 444 S.E.2d at 708.

In contrast, Combs suffered her severe headache
while participating in the aerobics class at Virginia
Power’s office. While taking part in that class was not
required by Virginia Power, EHS personnel treated Combs because
of her status as a Virginia Power employee. In fact, the aerobics
instructor called EHS when Combs became ill because Virginia
Power’s EHS coordinator had directed the instructor to do
so. Thus, the risk that led to Combs’ injury was part of her
work environment. See Briley, 240 Va. at 198, 396
S.E.2d at 837.

Additionally, the fact that her injury was the
aggravation of a pre-existing condition does not alter the result
that her injury arose out of her employment. See Ohio
Valley Const. Co. v. Jackson
, 230 Va. 56, 58, 223 S.E.2d 554,
555 (1985) ("When an injury sustained in an industrial
accident accelerates or aggravates a pre-existing condition,
death or disability resulting therefrom is compensable under the
Workers’ Compensation Act."). Combs’ pre-existing
aneurysm united with an actual risk of her employment to produce
her injury.


"The phrase arising ‘in the course
of’ [employment] refers to the time, place, and
circumstances under which the accident occurred." Johnson,
237 Va. at 183, 376 S.E.2d at 74. "An accident occurs
‘in the course of the employment’ when it takes place
within the period of the employment, at a place where the
employee may reasonably be, and while he is reasonably fulfilling
duties of his employment or engaged in doing something incidental
thereto." Bradshaw, 170 Va. at 335, 196 S.E. at 686; accord
Lucas, 212 Va. at 563, 186 S.E.2d at 64; Conner,
203 Va. at 208, 123 S.E.2d at 396.

Combs argues she was not performing any duty of
her employment at the moment when she initially needed emergency
medical treatment. As she correctly notes, the pre-existing
aneurysm was not caused by her employment, and she was
participating in an aerobics class during her lunch hour when she
first experienced the headache. Thus, she contends that "the
reason she ended up at EHS was not in any way connected with her
employment[,]" and, therefore, that her injury did not occur
during the course of her employment. We do not agree.

Combs’ position on this issue overlooks
several salient facts. First, Combs is not seeking redress for
the onset of the symptoms associated with the aneurysm but for
the aggravation of that pre-existing condition. The aggravation
of the aneurysm occurred after EHS personnel responded to the
call for assistance from the aerobics instructor, during
Combs’ period of employment, and at a place where she could
reasonably be if she became ill at work, i.e., the "quiet
room." The only reason that EHS responded to that call was
because Combs was a Virginia Power employee. Thus, Combs
"was injured at a place where she was reasonably expected to
be while engaged in an activity reasonably incidental to her
employment" by Virginia Power. Briley, 240 Va. at
198, 396 S.E.2d at 837. Her injury therefore occurred "in
the course of" her employment.


For these reasons, we conclude that Combs’
injury was an "injury by accident arising out of and in the
course of [her] employment" with Virginia Power, Code
? 65.2-101, and is therefore compensable under the Act. Her
action in the circuit court is thus barred by Code
? 65.2-307. Accordingly, we will affirm the judgment of the
circuit court.




[1] Justice Compton participated in the hearing and
decision of this case prior to the effective date of his
retirement on February 2, 2000.

[2] Combs also filed a claim with the
Virginia Workers’ Compensation Commission on May 23, 1996.
Virginia Power subsequently filed a report regarding the accident
with the Commission.

[3] Code ? 65.2-307 provides
that "[t]he rights and remedies herein granted to an
employee when his employer and he have accepted the provisions of
this title respectively to pay and accept compensation on account
of injury or death by accident shall exclude all other rights and
remedies of such employee . . . on account of such injury . . .