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ARISING OUT OF

See Accident, Course of Employment

"To prove the 'arising out of' element, [claimant] must show that a condition of the workplace either caused or contributed to [the accident]." Southside Virginia Training Ctr. v. Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995) (citing County of Chesterfield v. Johnson, 237 Va. 180, 184, 376 S.E.2d 73, 76 (1989)).

An injury, to be compensable under the Workers' Compensation Act, must "arise out of" and be "in the course of" employment. Code Sec. 65.2-101. See County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). "Arising out of" refers to the origin or cause of the injury. Richmond Memorial Hospital v. Crane, 222 Va. 283, 285, 278 S.E.2d 877, 878 (1981). Whether an accident arises out of employment is a mixed question of law and fact which is reviewable on appeal. Mullins v. Westmoreland Coal Co., 10 Va. App. 304, 307, 391 S.E.2d 609, 611 (1990). An injury arises out of the employment if there is apparent to the rational mind a causal connection between the conditions under which the work is required to be performed and the resulting injury. United Parcel Service v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 893 (1985). An injury does not arise out of one's employment if it is caused by "a hazard to which the employee would have been equally exposed apart from the employment." Johnson, 237 Va. at 183, 376 S.E.2d at 75. However, if an injury "has followed as a natural incident of the work and has been a result of an exposure occasioned by the nature of the employment," then the injury "arises out of" the employment. Fetterman, 230 Va. at 258, 336 S.E.2d at 893. Virginia has adopted an "actual risk" test and has rejected the "positional risk" test followed by other jurisdictions. See Johnson, 237 Va. at 185, 376 S.E.2d at 75-76. The actual risk test "'requires only that the employment expose the workman to a particular danger from which he was injured, notwithstanding the exposure of the public generally to like risks.'" Olsten v. Leftwich, 230 Va. 317, 319, 336 S.E.2d 893, 894 (1985) (quoting Lucas v. Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972)).

To recover benefits, claimant must establish that he suffered an injury by accident "arising out of and in the course of his employment," Code Sec. 65.2-101, and "that the conditions of the workplace or some significant work-related exertion caused the injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). "The phrase arising 'out of' refers to the origin or cause of the injury." County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74(1989).

Employer takes claimant as he finds him. "An accident may be said to arise out of and in the course of the employment if the exertion producing the accident is too great for the man undertaking the work, even though the degree of the exertion is usual and ordinary and 'the workman had some predisposing weakness.' . . . 'The question is not whether it would affect the ordinary man, but whether it affected the [employee.]'" Russell Loungewear v. Gray, 2 Va. App. 90, 94, 341 S.E.2d 824, 826 (1986) (citations omitted)). If an aggravation of a pre-existing condition was caused by an identifiable incident that resulted in an obvious sudden mechanical or structural change in his body, the evidence proved that the '"causative danger . . . had its origin in a risk connected with the employment, and . . . flowed from that source as a rational consequence."' That the activity was usual, and did not require exertion, and that the injury was not 'foreseen or expected' are irrelevant." Grove v. Allied Signal, Inc., 15 Va. App. 17, 22, 421 S.E.2d 32, 35 (1992) (citation omitted). "'[T]he employer takes the employee as he is and if the employee is suffering some physical infirmity, which is aggravated by an industrial accident, the employer is responsible for the end result of such accident.'" McDaniel v. Colonial Mechanical Corp., 3 Va. App. 408, 414, 350 S.E.2d 225, 228 (1986) (citation omitted).

Going and Coming Rule. 

The commission did not err in finding that claimant did not sustain a compensable injury by accident arising out of and in the course of her employment when she was hit by a car while she was crossing a road after work to reach her car in a parking lot.  To recover benefits, the claimant must establish by a preponderance of the evidence that [she] suffered an injury by accident "arising out of and in the course of [her] employment," Code Sec. 65.2-101, and "that the conditions of the workplace . . . caused the injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). Falls Church Const. Corp. v. Valle, 21 Va. App. 351, 359-60, 464 S.E.2d 517, 522 (1995). "The phrase arising 'out of' refers to the origin or cause of the injury." County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). "Whether an injury arises out of the employment is a mixed question of law and fact and is reviewable by the appellate court." Plumb Rite, 8 Va. App. at 483, 382 S.E.2d at 305 (citation omitted). The commission's finding is binding upon us unless we conclude, as a matter of law, that claimant proved her employment caused her injury. See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970) (citations omitted). "As a general rule, 'an employee going to or from the place where his work is to be performed is not engaged in performing any service growing out of and incidental to his employment.'" Kenrick v. Nationwide Homes, Inc., 4 Va. App. 189, 190, 355 S.E.2d 347, 347 (1987) (citations omitted). The Supreme Court of Virginia, however, has recognized three exceptions to this general rule. GATX Tank Erection Co. v. Gnewuch, 221 Va. 600, 603-04, 272 S.E.2d 200, 203 (1980). Therefore, an injury incurred while going to or from work may be compensable: "First: Where in going to and from work the means of transportation is provided by the employer or the time consumed is paid for or included in the wages. "Second: Where the way used is the sole and exclusive way of ingress and egress with no other way, or where the way of ingress and egress is constructed by the employer. "Third: Where the employee on his way to or from work is still charged with some duty or task in connection with his employment." Id. (citation omitted). Claimant does not contend that the first and third exceptions apply. Rather, claimant contends the parking lot is an extension of employer's premises because it is necessary for employer's employees to use the lot. Claimant, therefore, argues the parking lot is analogous to the "exclusive way of ingress and egress." Claimant bears the burden of proving by a preponderance of the evidence that the exception applies to her claim. Sentara Leigh Hosp. v. Nichols, 13 Va. App. 630, 636, 414 S.E.2d 426, 430 (1992) (en banc). Employment is not limited by the walls of the workplace. [T]here is no concept of "instantaneous exit" from a place of employment immediately upon termination of work. [Brown v. Reed,] 209 Va. [562,] 565, 165 S.E.2d [394,] 397 [(1969)]. Quoting from Bountiful Brick Co. v. Giles, 276 U.S. 154, 48 S. Ct. 221, 72 L.Ed. 507 (1928), we said that employment includes not only the actual performance of the work, but also "a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done." 209 Va. at 565, 165 S.E.2d at 397 (internal quotation marks omitted). Apropos this case and again quoting from Giles, we stated that if an employee sustains an injury while passing, with the express or implied consent of the employer, to or from his or her work by a way over the employer's premises, "or over those of another in such proximity and relation as to be in practical effect a part of the employer's premises," id., the injury is as causally related to the employment as if it had been sustained while the employee was engaged in work at the place of its performance. Barnes v. Stokes, 233 Va. 249, 252, 355 S.E.2d 330, 331 (1987). In a review of the appellate cases addressing parking lot accidents, we first examine Barnes. In Barnes, the claimant was struck by a motor vehicle operated by a fellow employee in a private parking lot adjacent to their place of employment. Id. at 250, 355 S.E.2d at 330. The lot was neither owned nor maintained by the employer, but the employer was allocated a portion of the lot, which accommodated all of its employees, and directed its employees to park in the designated area. Id. at 251, 355 S.E.2d at 331. In finding that the claim was compensable, the Supreme Court of Virginia held: 1) the injury occurred in an area specifically allocated to the employer at a place where the employees were required to park their vehicles and 2) the claimant's injury was sustained while she passed to her work, with the consent of the employer, over the premises of another "'in such proximity and relation as to be in practical effect a part of the employer's premises.'" Id. at 252-53, 355 S.E.2d at 331-32 (citation omitted). In denying compensation, we addressed a parking lot accident in Hunton & Williams v. Gilmer, 20 Va. App. 603, 460 S.E.2d 235 (1995), where the claimant slipped and fell on ice that accumulated in a parking garage across the street from the employer's premises. The employer did not own or maintain the parking garage. Id. at 604, 460 S.E.2d at 235. The garage was owned by the employer's landlord. The claimant paid to park in the garage. Id. at 604-05, 460 S.E.2d at 235. The employer did not require its employees to park in the garage. Id. at 605, 460 S.E.2d at 235. The claimant paid for her parking privileges through a payroll withdrawal because the employer was required to pay the garage fee for its employees by one check. Id. at 604-05, 460 S.E.2d at 235-36. The employer, however, did not receive a discount for the parking fees and did not subsidize the cost of parking of its employees. Id. at 605, 460 S.E.2d at 236. No evidence established that the employer's workers were assigned to a particular location within the garage. Id. We refused to apply the "extension of the premises" doctrine beyond the Supreme Court's holding in Barnes. Id. at 607-08, 460 S.E.2d at 237. We wrote that the Barnes decision was predicated on the employer's authority and control over the location of the accident. Id. Because there was no evidence that the employer required its employees to park in the garage or that the claimant was injured in an area reserved only for the employer's workers, we found that the claimant failed to prove that the employer had any control or authority over the area in which she parked. Id. In Ramey v. Bobbitt, 250 Va. 474, 463 S.E.2d 437 (1995), the plaintiff's decedent was killed on a public street adjacent to the employer's premises while on the way to work. The employer did not provide parking for the employees, who generally parked on public streets. Id. at 476, 463 S.E.2d at 439. The Supreme Court of Virginia held that the public street was not part of the employer's premises and it was not a place where the employer expected decedent to be for employment purposes. Id. at 479, 463 S.E.2d at 440. The Court found that the case fell within the "going to and from work rule." Id. at 478, 463 S.E.2d at 440. The claimant prevailed in Reed, 209 Va. 562, 165 S.E.2d 394, where the claimant was injured in a parking lot maintained by the employer on the employer's property. The Supreme Court of Virginia held that the parking lot was furnished as an incident of employment. Id. at 568, 165 S.E.2d 399. In the present case, the parking lot was neither owned nor maintained by employer, and claimant was not required to park there. While employees could not park on the employer's premises, they could park any other place they chose. Employer did not pay for employees' parking, did not designate parking spaces for the employees, and the lot was not used exclusively by employees. Unlike in Reed, the parking lot was neither owned nor maintained by employer and its use was not an incident of employment. Unlike in Barnes, the accident did not occur in an area specifically allocated to employer at a place where employees were required to park. We agree with the commission's finding: Further, the claimant has failed to establish the requisite amount of control of the employer over the location of the accident, as required by Barnes and Gilmer. The employer did not own or maintain the lot across from its premises, the lot was not used exclusively by its workers, and no money was paid by the employer to provide access to the lot for its employees. The claimant was not assigned a particular location in which to park and, although it might have been difficult for the claimant to have parked elsewhere, there was no evidence introduced that some requirement of her employment made it necessary that she drive to work and park nearby, as opposed to walking, receiving a ride to work or parking at the home of a friend in the neighborhood. The employer's workers were made aware that there was limited parking, and the lot was offered as an alternative if an employee chose to drive to work. Further, even assuming that the claimant established the requisite authority and control, we note that the accident itself did not occur at the lot across the street, but on a public road, that was clearly not within the employer's control. For these reasons, we find no error and affirm the commission's decision. If claimant would have met the criteria of Barnes and its progeny, the fact that she was injured on a public road leaving work and going directly to her car would not have defeated her claim. See Reed, 209 Va. 562, 165 S.E.2d 394.  Dorothy W. Stone v. Keister's Market & Grill, Record No. 1253-00-3 (December 19, 2000). WP Version. 

Generally, an injury or death is not compensable if it occurs while an employee is traveling to or from work. See Harbin v. Jamestown Village Joint Venture, 16 Va. App. 190, 193,428 S.E.2d 754, 756 (1993); Sentara Leigh Hosp. v. Nichols, 13 Va. App. 630, 636, 414 S.E.2d 426, 429 (1992). This rule is premised upon the principle that an employee traveling to or from his workplace "is not engaged in performing any service growing out of and incidental to his employment." Kendrick, 4 Va. App. at 190, 355 S.E.2d at 347. However, several exceptions exist to the "coming and going" rule. Id. The following three exceptions are generally recognized: "(1) where the means of transportation used to go to and from work is provided by the employer or the employee's travel time is paid for or included in wages; (2) where the way used is the sole means of ingress and egress or is constructed by the employer; and (3) where the employee is charged with some duty or task connected to his employment while on his way to or from work." Sentara, 13 Va. App. at 636, 414 S.E.2d at 429. The burden of proof is upon the claimant to establish by a preponderance of the evidence that one of these exceptions applies. See Id. at 636, 414 S.E.2d at 430.

Claimant's duty orders clearly establish that he was an employee of the National Guard, a prerequisite for coverage under the Act. See Code Sec. 65.2-101; Globe Indemnity Co. v. Forrest, 165 Va. 267, 271, 182 S.E. 216 (1935); Cotman v. Green, 4 Va. App. 256, 258, 356 S.E.2d 447, 448 (1987). However, the evidence supports the commission's finding that claimant was not performing any task or duty of his employment when he was traveling from his home to Fort A.P. Hill. Janine Nannette Carlson, et al. v. Department of Military Affairs/ Commonwealth of Virginia, Record No. 1626-97-2 (February 17, 1998).

Claimant was employed as a landscape worker for employer. On September 17, 1997, he 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,  was involved in a head-on automobile collision. No evidence indicated that the driver or claimant detoured from the normal route between the two jobs or engaged in any activity not related to their employment. was thrown from the truck and lost consciousness for a period of time. After claimant 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. The commission did not err in finding that claimant's "failure to recall the cause of his accident is not fatal to his claim," relying 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). 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 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 claimant's injuries were caused by an automobile accident. Claimant 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 [claimant] 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 claimant 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). Horner Lawn Service, Inc. v. Roy T. Compton, Record No. 2043-99-2 (February 8, 2000). WP Version.

Employers are generally not liable for injuries sustained by employees while traveling to or from work. Ramey v. Bobbitt, 250 Va. 474, 478, 463 S.E.2d 437, 438 (1995). However,  the Supreme Court has established three exceptions to the "going and coming" rule: [1.] "Where in going to and from work the means of transportation is provided by the employer or the time consumed is paid for or included in the wages[;] [2.] Where the way used is the sole and exclusive way of ingress and egress with no other way, or where the way of ingress and egress is constructed by the employer[; or] [3.] Where the employee on his way to or from work is charged with some duty or task in connection with his employment." GATX Tank Erection Co. v. Gnewuch, 221 Va. 600, 603-04, 272 S.E.2d 200, 203 (1980) (quoting Kent v. Virginia-Carolina Chemical Co., 143 Va. 62, 66, 129 S.E. 330, 331-32 (1925)). A claimant injured in an automobile accident on his way to work bears the burden of proving by a preponderance of the evidence that one of the above exceptions applies to his case. See Sentara Leigh Hospital v. Nichols, 13 Va. App. 630, 636, 414 S.E.2d 426, 430 (1992). The commission properly found that claimant proved the third exception to the "going and coming" rule.  Claimant was a car salesman injured while driving a demonstrator vehicle to work. He was charged with at least three tasks by his employer in his travel to work: 1) he was required to get the car to employer's premises each work day, because his use agreement with employer expressly required him to have the demo available to show to customers during business hours; 2) he was required to display the dealer emblem and sales stickers on the car; and 3) he was required to show the car to any potential buyers, even off employer's premises. Claimant was engaged in the performance of duties which benefited his employer as he drove the demo to work on the day of the accident. The third exception to the "going and coming" rule therefore applies. Templeton Oldsmobile Dodge v. Charles Dyer, Record No. 0446-99-4 (April 18, 2000). WP Version.

The commission did not err in finding that claimant's injury did not arise out of her employment under an exception to the "coming and going" rule. In 1995, in accordance with an inter-governmental Personnel Assignment Agreement (IPA), claimant began working at the National Science Foundation (NSF), an agency of the federal government located in Arlington, Virginia. Parking at NSF was either on the street, if available, or for a fee in a public garage under the NSF building. When claimant accepted the assignment at NSF, the employer agreed to reimburse her for either the cost of garage parking at NSF or the cost of Metro subway transportation. On the morning of February 5, 1997, claimant left her home in Silver Spring to travel to work at NSF. She drove approximately one mile to the Wheaton Metro station and parked her car on a residential street. While crossing at a public intersection on her way to the subway station, she was struck by an automobile.
    Generally, an injury sustained by an employee while "coming and going" to work does not arise out of or in the course of the claimant's employment and is not compensable. Sentara Leigh Hosp. v. Nichols, 13 Va. App. 630, 636, 414 S.E.2d 426, 429 (1992) (en banc); see also Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law, Sec. 13.01 (2000) ("going to and from work is covered only on the employer's premises"). This general rule, also known as the "premises" rule, has three exceptions: (1) where the means of transportation are provided by the employer or the time consumed by travel is paid for and is included in the employee's wages; (2) where the way used to and from employment is the sole and exclusive means of ingress and egress; and (3) where the employee is engaged in some duty or task in connection with his or her employment, i.e., when the employee is on a special errand. Sentara, 13 Va. App. at 636, 414 S.E.2d at 429. The possible exceptions, one and three, do not apply to claimant's accident.  
    The first exception does not apply. The contract to provide transportation to claimant controls the outcome and liability in this case is precluded by the terms of the employment agreement, which limited the risks employer agreed to assume.  Employer did not agree to provide claimant with transportation between her home and NSF. It only agreed to pay for claimant's Metro fare or her costs to park at NSF.  It did not agree to compensate her for the time she spent en route, or to reimburse her for gas, mileage costs, or parking at the Metro station.  By contract, employer defined the "reasonable margin of time and space," Scott v. Willis, 150 Va. 260, 268, 142 S.E. 400, 402 (1928), that formed the employment environment.  It follows from the limitations employer placed on its agreement that employer specifically excluded risks that might arise in places and times remote from the specific transportation mode it agreed to pay for, to wit, taking the Metro or parking in the lot adjacent to NSF. Unlike the agreement in Scott, there was no portal to portal employer funded transportation contract between employer and claimant. The evidence fails to establish in this case an agreement to extend the coverage for injuries occurring on the employer's "premises" to the roadway leading to the Metro station.
    The "special errand" exception also does not apply in this case.  The "special errand" exception applies when the employee on his or her way to or from work is charged with some duty or task in connection with his or her employment. Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 191, 355 S.E.2d 347, 348 (1987).  Claimant traveled to NSF almost daily over the fifteen months preceding her accident. Her daily commute from her home to NSF was not a special occurrence, nor was she charged with any duty or task while traveling to or from NSF. As the full commission noted, "there is no evidence that the commute to NSF was significantly onerous, long or burdensome, or different from the commute to Mitre."  Barbara T. Blaustein v. Mitre Corporation, Record No. 2860-00-4 (August 7, 2001).WP Version.

An accident arises out of the employment when a causal connection exists between the claimant's injury and the conditions under which the employer requires the work to be performed. or a "significant work related exertion." United Parcel Serv. v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 893 (1985). Grove v. Allied Signal, Inc., 15 Va. App. 17, 19, 421 S.E.2d 32, 34(1992); Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 482,484, 382 S.E.2d 305, 306 (1989) The causative danger must be peculiar to the work and incidental to the character of the business. If the injury stemmed from a hazard to which the employee would have been equally exposed apart from the employment, no compensation is warranted. Fetterman, 230 Va. at 258, 336 S.E.2d 893. "'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.'" Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938), quoting In re McNicol, 215 Mass. 497, 499, 102 N.E. 697, 697 (1913). Baggett Transp. Co. v. Dillon, 219 Va. 633, 638, 248 S.E.2d 819, 822 (1978). Whether an injury arises out of the employment is a mixed question of law and fact and is reviewable on appeal. Barbour, 8 Va. App. at 483, 382 S.E.2d at 305.

A home health care registered nurse, injured her back while lifting a plastic water basin she used to clean a patient's ventilator tube and while looking upward. The empty water basin was on the floor in a small closet. Claimant had her hand on the closet doorknob as she retrieved the basin. While straightening up with the basin in her hand, she felt pain in her back. She denied that she bent down in an awkward fashion to pick up the basin. The basin had no significant weight and lifting it did not involve any significant exertion. There was nothing about the size of the closet which restricted or obstructed her movements. Claimant failed to prove as a matter of law that her injury arose out of her employment. The evidence established that claimant did not engage in any significant exertion, that her action of looking upward as she reached for the basin did not involve any awkward movement or position, and that no condition or hazard peculiar to her workplace caused her injury. Carol Huffman v. Carilion Rke Memorial Hosp., Record No. 0995-99-3 (September 14, 1999). WP Version.

"To prove the 'arising out of' element, [in a case involving injuries sustained from falling down stairs at work,] [claimant] must show that a condition of the workplace either caused or contributed to [his] fall." Southside Virginia Training Ctr. v. Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995) (citing County of Chesterfield v. Johnson, 237 Va. 180, 184, 376 S.E.2d 73, 76 (1989)). "Whether an injury arises out of the employment is a mixed question of law and fact and is reviewable by the appellate court." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305, 305 (1989). Claimant, a deputy sheriff, was posting papers on the front door of the central entrance of an apartment building. To complete this task, he ascended a flight of stairs, and taped the papers to the door. The door was located approximately twenty-seven inches from the top of the staircase. As claimant turned to leave, he looked at the city workers in order to decide whether he could descend the stairs without a danger of having debris blown into his eyes, and fell before his foot made contact with the first step. After taping papers to the door, he turned with tape in his left hand and looked at the city workers blowing leaves on the sidewalk below in order to decide whether he could descend the stairs without a danger of having debris blown into his eyes. He reached for a handrail but there was none there. Claimant stated he did not recall slipping or tripping and did not know why he fell. Although his job required he serve as many papers as possible, claimant admitted that he was in no particular hurry on the day of his accident and that he had no quota to meet. The City building inspector concluded that the staircase was in compliance with the "applicable sections of the 1996 Uniform Statewide Building Code." Although claimant was in the course of his employment when his injury occurred, the evidence did not show that any defect in the stairs or any condition peculiar to his workplace caused him to fall down the steps and injure himself. Claimant's evidence did not prove that the lack of handrails at the top of the stairs was a defect or anomaly constituting a risk of his employment nor did his evidence prove that the landing at the top of the stairs was defectively narrow. Moreover, claimant's evidence did not prove that the lack of handrails or the width of the landing caused him to fall. The alleged distraction of city employees blowing leaves on the sidewalk below did not constitute a risk of claimant's employment or cause his fall. This alleged "distraction did not startle the claimant, nor prevent him from viewing the staircase before beginning his descent." The alleged distraction was not a risk peculiar to claimant's employment, but rather, was common to the neighborhood. Russell D. Clay v. Winchester Sheriff's Office, Record No. 2441-98-4 (October 26, 1999). WP Version.

Repetitive or cumulative activities can be treated as conditions or hazards of workplace. Knee-bending demanded of claimant when operating knitting machines was a condition to which she was not equally exposed apart from her employment. Cf. Grove v. Allied Signal, Inc., 15 Va. App. 17, 19-21, 421 S.E.2d 32, 34-35 (1992) (claimant's stooping and crouching incidental to fixing pipes exposed him to a risk of back injury peculiar to his employment); Brown, Inc. v. Caporaletti, 12 Va. App. 242, 245, 402 S.E.2d 709, 711 (1991) (claimant's cutting and fitting motions performed in a bent over position while installing a 100-pound furnace exposed him to a risk of back injury unique to his employment).

Where operating a knitting machine required claimant to squat and bend her knees until her "rear end [was] lower than [her knees]" and her weight rested on her heels, this manner of reloading the lowest creels with yarn increased her risk of tearing cartilage in her knee and directly contributed to cause her injury. Cf. Marion Correctional Treatment Ctr. v. Henderson, 20 Va. App. 477, 480-81, 458 S.E.2d 301, 303 (1995).

Although job-related impairments resulting from cumulative trauma caused by repetitive motion are not compensable under the Act, Stenrich Group v. Jemmott, 251 Va. 186, 199, 467 S.E.2d 795, 802 (1996), the commission did not conclude that claimant's injury resulted from a cumulative trauma. Instead, the commission found that the medial meniscus in claimant's left knee was damaged once, on a particular date, and that this single injury was causally related to the risk of tearing cartilage associated with performing deep knee-bends. The commission characterized the extreme squatting as a "causative danger" and "a risk connected with the employment and did not find that the knee-bends injured claimant gradually over time. Bassett-Walker, Inc. v. Shirley Jean Wyatt, 26 Va. App. 87, 93-94, 493 S.E.2d 384, 387-88 (1997).

Claimant's accident occurred after the claimant was partially squatting and bending over, at a forty-five degree angle, bracing a box with her knee. She felt a sharp stabbing pain in her lower back, when she was straightening up from this position. She had done this work for approximately one-half hour. Although simple acts of walking, bending or turning without any other contributing environmental factors are not risks of employment, [claimant's] injury did not occur from just straightening. She had worked in an awkward position: bent at the waist, slightly crouching with her right knee against a box for about thirty minutes, and was injured when she rose from this position. The Court of Appeals upheld the commission's finding that claimant's accident arose from her employment. Claimant must prove that she suffered an injury by accident that arose out of and in the course of the employment. See County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). An injury "arises out of" the employment if a causal connection exists between the claimant's injury and "the conditions under which the employer requires the work to be performed," Grove v. Allied Signal, Inc., 15 Va. App. 17, 19, 421 S.E.2d 32, 34 (1992), or "that some significant work related exertion caused the injury." Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). "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." R & T Investments, Ltd. v. Johns, 228 Va. 249, 252-53, 321 S.E.2d 287, 289 (1984) (citations omitted). In Richard E. Brown, Inc. v. Caporaletti, 12 Va. App. 242, 402 S.E.2d 709 (1991), the Court of appeals determined whether an employee's cutting and fitting motion performed in a bent over position while installing a 100-pound furnace exposed him to a risk of back injury unique to his employment. Affirming the commission's award of benefits, the Court of Appeals concluded the employee's need to work in the bent over position and to extract himself from that position was a "hazard to which [the employee] would not have been equally exposed apart from the conditions of employment." Id. at 245, 402 S.E.2d at 711 (citations omitted). See also Bassett-Walker, Inc. v. Wyatt, 26 Va. App. 87, 93-94, 493 S.E.2d 384, 387-88 (1997) (concluding that claimant's knee-bending or "squatting" to reach a position close to the ground to load yarn on a knitting machine was a condition of work that exposed claimant to risk of injury); Grove, 15 Va. App. at 20-21, 421 S.E.2d at 34-35 (holding that claimant's stooping and bending incidental to fixing pipes exposed him to a risk of back injury particular to his employment). In the instant case, credible evidence supports the commission's finding that claimant worked in an awkward position, "bent at the waist, slightly crouching with her right knee against a box." Although employer contends that there is nothing awkward or unusual about claimant's work activity because she "bent in the same or similar fashion" outside the work environment, contrary to employer's position, claimant testified on re-direct that in none of the activities she performed at home was she stooped or bent at the waist with her knee propped against something. Moreover, "[t]he mere fact that an unusual movement required by one's employment is occasionally done outside the workplace does not necessarily make a resulting workplace injury non-compensable." Bassett-Walker, Inc. v. Wyatt, 26 Va. App. 87, 94, 493 S.E.2d 384, 387-88(1997). Lear Corporation Winchester v. Anna M. McFarland, Record No. 2139-98-4 (May 11, 1999). WP Version.

Claimant  used an electric hoist to lift a large aircraft tire and then lower it onto a table. He testified that the tires are "real slick and will try to slide off" the table. "[I]n the process of letting the tire down I'm . . . twisting back and forth, and I had a pain occur in my back." He testified he had his left hand on the tire, right hand on the hoist, and that his left knee was propping up the tire when he "turn[ed] back around [and] had a pain in his back." He was diagnosed as having a lumbosacral sprain. Sufficient evidence in the record  establishes a compensable claim arising out of claimant's employment. Applying the "actual risk" test, an employee's injury "arises out of" his employment when "it is apparent to a rational mind, under all attending circumstances, that a causal connection exists between the conditions under which the work is required to be performed and the resulting injury." Lipsey v. Case, 248 Va. 59, 61, 445 S.E.2d 105, 106 (1994) (dog-bite from co-worker's dog not causally related to work) (citations omitted). See also Richard E. Brown, Inc. v. Caporaletti, 12 Va. App. 242, 245, 402 S.E.2d 709, 711 (1991); Kemp v. Tidewater Kiewit, 7 Va. App. 360, 363, 373 S.E.2d 725, 726 (1988). In Grove v. Allied Signal, Inc., 15 Va. App. 17, 421 S.E.2d 32 (1992), Grove, a pipe fitter, was working several feet off the ground in a crouched position when he injured his back while reaching for a pipe. Whether Grove was reaching for or had lifted the pipe, the evidence was sufficient to prove that the "'"causative danger . . . had its origin in a risk connected with the employment, and . . . flowed from that source as a rational consequence."'" Id. at 22, 421 S.E.2d at 34 (quoting R&T Investments, Ltd. v. Johns, 228 Va. 249, 253, 321 S.E.2d 287, 289 (1984) (quoting Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938))). In this case, claimant's "act of turning was associated with the task of lowering an aircraft tire onto a repair table." This was not a simple case of turning. Claimant was required to twist back and forth to balance the slick tire on the smaller table. After setting the tire down, he felt "pain while turning away which was directly connected to the more strenuous activity." Clearly, claimant's job, which required manipulating large aircraft tires onto repair tables, exposed him to "hazards to which he would not have been equally exposed apart from the conditions of the employment." Caporaletti, 12 Va. App. at 245, 402 S.E.2d at 711 (citations omitted). Goodyear Tire & Rubber Co. v. Ronald Wood, Record No. 0071-99-3 (August 3, 1999). WP Version.

Credible evidence supports the commission's finding that claimant's injury arose out of his employment. Claimant, a maintenance specialist for employer for over twenty years, is six feet tall and weighs approximately 300 pounds. The evidence established that on July 20, 1998, he was arranging forty-pound water bottles in a storage rack. Claimant removed the empty bottles from the top rack, put them on the floor and moved the full bottles to the top rack. Claimant, working in a "crouched" position, rearranged approximately fifteen bottles, which took five minutes. After completing this activity, claimant "straightened up" from a squatting position and felt a "burning sensation" in his "lower back toward [his] hip area." Claimant was not lifting a water bottle when he experienced the "burning sensation." He testified that the activity of rearranging the water bottles "wasn't difficult at all" and involved "mainly stretching and pulling." "An accident arises out of the employment if there is a causal connection between the claimant's injury and the conditions under which the employer requires the work to be performed." Grove v. Allied Signal, Inc., 15 Va. App. 17, 19, 421 S.E.2d 32, 34 (1992) (citations omitted). "[T]he arising out of test excludes 'an injury which comes from a hazard to which the employee would have been equally exposed apart from the employment. The causative danger must be peculiar to the work, incidental to the character of the business, and not independent of the master-servant relationship.'" County of Chesterfield v. Johnson, 237 Va. 180, 183-84, 376 S.E.2d 73, 75 (1989) (quoting United Parcel Serv. v. Fetterman, 230 Va. 257, 258-59, 336 S.E.2d 892, 893 (1985)). This case is controlled by our decision in Richard E. Brown, Inc. v. Caporaletti, 12 Va. App. 242, 402 S.E.2d 709 (1991). There, the claimant sustained an acute lumbosacral strain while "straightening up after working in a bent over position . . . ." Id. at 244, 402 S.E.2d at 710. We held that the claimant's need to work in the bent over position and to extract himself from that position was a "'hazard to which [the claimant] would not have been equally exposed apart from the conditions of the employment.'" Id. at 245, 402 S.E.2d at 711 (quoting First Federal Savings & Loan v. Gryder, 9 Va. App. 60, 65, 383 S.E.2d 755, 759 (1989)). In the instant case, the evidence established that claimant was working in a "crouched" position, arranging forty-pound water bottles. After completing this activity, claimant "straightened up" from the squatting position and felt a "burning sensation" in his "lower back toward [his] hip area." The commission found that "the claimant's act of straightening and standing was appurtenant to his performing work required as a condition of his employment." Because credible evidence supports this finding, we affirm the commission's decision that the workplace conditions constituted a hazard that was peculiar to claimant's work. Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 382 S.E.2d 305 (1989), cited by employer, does not mandate a different conclusion. In Barbour, we held that a claimant is required "to show that the conditions of the workplace or that some significant work related exertion caused the injury." Id. at 484, 382 S.E.2d at 306. "The mere happening of an accident at the workplace, not caused by any work related risk or significant work related exertion, is not compensable." Id. Virginia has rejected the "positional risk" doctrine which compensates employees who are injured on the job regardless of whether the injury was caused by a risk or condition of the workplace. See Johnson, 237 Va. at 185, 376 S.E.2d at 75-76. To the contrary, the commission in the present case concluded that "the risk of [claimant's] injury was within the ambit of risks to which the claimant was exposed as a result of the employment . . . ." Significantly, the commission found that claimant's "testimony describing the task reasonably suggests strenuous activity immediately preceding his attempt to stand." Unlike the situation in Barbour, where the claimant was injured while bending down to pick up a piece of plastic pipe, credible evidence supports the commission's finding that claimant's injury was "caused by [the] work related risk" of repeatedly bending and lifting the water bottles. Barbour, 8 Va. App. at 484, 382 S.E.2d at 306. Nevertheless, employer urges us to reverse the decision on the ground that claimant was bound by his uncontradicted testimony that the work "wasn't difficult at all." In support of this error, employer relies upon Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652, 655-56 (1922), where the Supreme Court stated that a claimant's "case can rise no higher than [his] uncontradicted testimony." However, the Massie doctrine applies only to a party litigant's statements of fact and does not apply to "mere expressions of opinion." Braden v. Isabell K. Horsley Real Estate, Ltd., 245 Va. 11, 16, 425 S.E.2d 481, 484 (1993). Here, claimant's statements that he thought the work was not "difficult" or "hard" were mere expressions of opinion, and the Massie rule does not apply in this context. See, e.g., Ravenwood Towers, Inc. v. Woodyard, 244 Va. 51, 55, 419 S.E.2d 627, 629-30 (1992) (plaintiff's testimony that she thought "she could have seen" was "no more than an impression--an expression of opinion"); Ford Motor Co. v. Bartholomew, 224 Va. 421, 431, 297 S.E.2d 675, 680 (1982) (plaintiff's testimony that she thought the car was "in park" was simply her "impression" or opinion). Additionally, the rule does not apply to "an adverse statement standing in isolation from the litigant's testimony as a whole" which explains the facts. Baines v. Parker and Gladding, 217 Va. 100, 105, 225 S.E.2d 403, 407 (1976). International Paper Company v. James H. DeHart, Record No. 2201-99-3 (May 9, 2000). WP Version.

Injury from simple act of bending over not compensable. Claimant bent down to get a plastic liner from a trash can. When she had the liner in her hand, but before picking it up, she felt a sudden intense pain in her lower back. Claimant was merely bending over when she felt a sudden pain in her back. She did not twist or turn, nor was she required to twist or turn incidental to the bending or lifting. Cf. First Federal Savings & Loan Ass'n v. Gryder, 9 Va. App. 60, 65, 383 S.E.2d 755, 758-59 (1989) (injury arose out of employment when Gryder jerked or twisted in attempt to answer phone in order to avoid falling off stool when her shoe heel got stuck in its rim). The claimant did not lift anything. Nor was there anything peculiar about the act of bending over to retrieve a trash bag which made her injury compensable. No evidence proved anything unique about the height of the trash can or that the claimant was subjected to repetitive bending. There was no work-related condition that caused the injury to claimant's back. In Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 382 S.E.2d 305 (1989), the court held that "[t]he mere happening of an accident at the workplace, not caused by any work related risk or significant work related exertion, is not compensable." 8 Va. App. at 484, 382 S.E.2d at 306. An injury resulting from merely bending over to do something does not arise out of the employment. Bassett-Walker, Inc. v. Wyatt, 26 Va. App. 87, 493 S.E.2d 384 (1997) (en banc), is distinguishable on its facts. In Wyatt a knitting machine operator, was required to replace empty creels of yarn located 2 inches off the ground on her machine. She repeated this task, which required her to do deep-knee bends, approximately 200 times per 12-hour shift. While replacing the yarn, she heard a pop, and was unable to straighten her leg. The court ruled that the injury was compensable because the employment required an unusual, repetitive movement. The "unique demands of operating the . . . machine provided the 'critical link' between claimant's employment and her injury." Id. at 93, 493 S.E.2d at 387. Wyatt's risk of injury was directly associated with her employment, the risk directly contributed to cause the injury, and the risk far exceeded the general public's exposure. See id. at 94-95, 493 S.E.2d at 388; Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). In County of Chesterfield v. Johnson, 237 Va. 180, 376 S.E.2d 73 (1989) a water plant operator was walking up stairs when he realized he forgot to check a meter. He turned to go down the stairs and his knee gave way resulting in his injury. The stairs were not defective and claimant did not fall, nor did he injure himself by climbing or descending the stairs. The Supreme Court held that an injury resulting from turning was not compensable, even though the claimant was on the mission of his employer, because the work environment did not cause the injury. In United Parcel Service v. Fetterman, 230 Va. 257, 336 S.E.2d 892 (1985), a deliveryman injured his back when he raised his foot onto the back of his truck and bent to tie his shoe. The Supreme Court held that there was no causal connection between his injury and the conditions under which the work was to be performed. An injury which "comes from a hazard to which the employee would have been exposed equally apart from the employment," is not compensable. Id. at 258, 336 S.E.2d at 893. Because everyone with laced shoes must bend down to tie them, the claimant's injury was not peculiar to the requirements of his employment. Although in this case, claimant was performing her employment duties when she was injured, that issue alone is not dispositive. See id. There must exist a causative danger peculiar to the claimant's work. See Bradshaw, 170 Va. at 335, 196 S.E. at 686. Moreover, the act of merely bending over is a risk to which the general public is equally exposed. See id.; Barbour, 8 Va. App. at 484, 382 S.E.2d at 306. Claimant's injury did not arise out of her employment. Donna Mae Vint v. Alleghany Regional Hospital, Record No. 1458-99-3 (March 21, 2000). WP Version.

Cases in which the claimant's injury occurred during the course of the employment but was not causally related to a condition or exertion peculiar to the job. See County of Chesterfield v. Johnson, 237 Va. 180, 184-86, 376 S.E.2d 73, 75-76 (1989) (no evidence established that an "actual risk" of employment caused claimant's knee to "give way" and claimant to fall to the floor); United Parcel Service of America v. Fetterman, 230 Va. 257, 259, 336 S.E.2d 892, 893 (1985) (no evidence established that back strain that occurred when claimant bent over to tie his shoe was caused by a hazard peculiar to the workplace); Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989).(no evidence established that back strain that occurred when claimant bent over to pick up a piece of plastic pipe was caused by a work-related risk or exertion).

Where there is no significant exertion, the action of squatting involves no awkward position, and no condition peculiar to the workplace causes the injury, the injury cannot be said to have "aris[en] out of" employment. County of Chesterfield v. Johnson, 237 Va. 180, 185-86, 376 S.E.2d 73, 76(1989); Grove v. Allied Signal, Inc., 15 Va. App. 17, 19-20, 421 S.E.2d 32, 34 (1992); Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989).

To recover benefits, claimant must establish that he suffered an "injury by accident arising out of and in the course of his employment," Code Sec. 65.2-101, and "that the conditions of the workplace or some significant work related exertion caused the injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). "The phrase arising 'out of' refers to the origin or cause of the injury." County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). A meter reader, drove the company regular size pickup truck to a house, put the truck in park,  reached over to open the door and reached back to get a three pound data cap located to his right on the seat. When he rotated or twisted a little faster than usual to get out of the truck his left foot went down and then he felt a real sharp pain in his back. Claimant did not engage in any significant exertion,  his simple act picking up the three-pound data cap and turning to exit his truck did not involve any awkward position, and no condition or hazard peculiar to his workplace caused his injury, aside from the usual act of turning and exiting a vehicle. Therefore, claimant failed to prove as a matter of law that his injury arose out of his employment. William Frezell Crawford v. Virginia Electric & Power, Record No. 1125-99-3 (October 5, 1999). WP Version.

Claimant must establish that she suffered an "injury by accident arising out of and in the course of [her] employment," Code Sec. 65.2-101, and "that the conditions of the workplace or some significant work related exertion caused the injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). "The phrase arising 'out of' refers to the origin or cause of the injury." County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). The commission found that the claimant was sitting in a low chair, the desk was at a level right under her breast line, when she felt pain in her low back after reaching forward and picking up a stack of paper that weighed less than two pounds. The height of the chair did not require the claimant to reach or stretch sufficiently to have placed her in an awkward position or require unusual exertion in order to collate the documents. Therefore, there was not a causative nexus between the chair height and the injury. . . . [T]he claimant was performing the simple task of reaching to collate documents while sitting in a chair that was lower in relation to the desk than one would normally expect. This is not sufficient to provide the sufficient relationship between the work and the injury for the injury to arise out of the employment. No evidence established that claimant engaged in any significant exertion, that her action of sitting in the chair and reaching for the papers involved any awkward position, or that any condition or hazard peculiar to her workplace caused her injury, aside from the usual act of reaching to pick up the papers. Bonnie S. Pate v. Dollar Tree Stores, Inc., Record No. 0065-99-1 (June 1, 1999). WP Version.

The commission correctly rejected claimant's witness' testimony. Her testimony that claimant was actually lifting a patient, contradicted claimant's own testimony. Under the doctrine enunciated in Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652, 656 (1922), claimant could not rise above her own testimony, which was insufficient to prove an injury by accident arising out of her employment. Therefore, claimant failed to prove as a matter of law that her injury arose out of her employment. Jerry Anne Bickell v. Lake Taylor Hospital, Record No. 1328-98-1 (November 24, 1998).

In cases in which the claimant alleges an injury by accident resulting from an employment-related risk, "[a] 'critical link' must exist between the conditions of the workplace and the injury in order for the injury to qualify as 'arising out of' the employment." Pinkerton's, Inc. v. Helmes, 242 Va. 378, 380, 410 S.E.2d 646, 647 (1991).

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.'" Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938) (quoting In re McNicol, 102 N.E.697, 697 (Mass. 1913)).

In proving the "arising out of" prong of the compensability test, a claimant has the burden of showing that "'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.'" Marketing Profiles, Inc. v. Hill,17 Va. App. 431, 433-434, 437 S.E.2d 727, 729 (1993) (quoting Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938)). "[I]f 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 [the arising out of test] 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." Grove v. Allied Signal, Inc., 15 Va. App. 17, 19-20, 421 S.E.2d 32, 34 (1992) (quoting R & T Investments, Ltd. v. Johns, 228 Va. 249, 252-53, 321 S.E.2d 287, 289 (1984)).

Work Ordered by Supervisor Outside Usual Duties. 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, Sec. 22.04(2) (1999). Prince William County School Board v. Fogarty, Record No. 1866-98-4 (August 31, 1999). WP Version.

Unexplained vs. Idiopathic Accidents. "All risks causing injury to a claimant can be brought within three categories: risks distinctly associated with the employment, risks personal to the claimant, and 'neutral' risks--i.e., risks having no particular employment or personal character." 1 Arthur Larson, The Law of Workmen's Compensation, Sec. 7.00, at 3-12 (1990). The category of risk in a particular case determines the analysis used in examining whether a claimant's injury "arose out of" his or her employment. In Southland Corp. v. Parson, 1 Va. App. 281, 283, 338 S.E.2d 162, 163 (1985), the court recognized the distinction between unexplained falls and idiopathic falls. In a personal risk or idiopathic case, the claimant's injury is one "caused by a preexisting personal disease of the employee." Southland Corp. v. Parson, 1 Va. App. 281, 283, 338 S.E.2d 162, 163 (1985). In Virginia, the general rule regarding idiopathic falls is that the claimant must prove that the injury was not caused by some idiopathic condition. See Winegar v. International Telephone & Telegraph, 1 Va. App. 260, 263, 337 S.E.2d 760, 761 (1985). "When an employee's injuries result from an idiopathic condition and no other factors intervene or operate to cause or contribute to the injuries sustained as a result of the idiopathic condition, no award shall be made." Virginia Dep't of Transp. v. Mosebrook, 13 Va. App. 536, 538, 413 S.E.2d 350, 351-52 (1992). However, "the effects of [an idiopathic] fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle." Southland Corp., 1 Va. App. at 284-85, 338 S.E.2d at 164 (citation omitted). Thus, in an idiopathic fall situation, the well-established increased risk doctrine applies, and no recovery is allowed unless the claimant proves that a condition of the employment increased the effects of his or her fall. Finally, and by contrast, an unexplained fall or accident is encompassed in the "neutral risk" category. An unexplained injury does not result from any employment-related condition or from any idiopathic condition of the claimant. Memorial Hospital of Martinsville v. Hairston, 2 Va. App. 677, 682, 347 S.E.2d 527, 529 (1986). In Virginia, when an unexplained injury by accident in the course of employment results in the death of an employee, a presumption arises that the injury "arose out of" the employment. See id. at 680-81, 347 S.E.2d at 528 (citing Southern Motor Lines v. Alvis, 200 Va. 168, 171-72, 104 S.E.2d 735, 738 (1958)). However, the unexplained death presumption does not apply to an unexplained accident situation. Pinkerton's, 242 Va. at 380-81, 410 S.E.2d at 648. In Pinkerton's, the Court explained: Every unexplained accident, by definition, means that no one can relate how the accident happened. The reason for the inability to recall may be based on a preexisting or resulting, temporary or permanent, physical condition of the claimant, as well as mere inattention at the moment of the accident. If mere inability to recall the events is the rationale for application of the presumption, then it would also be logical that the claimant should be entitled to the benefit of the presumption in any of these circumstances, or whenever there is an unexplained accident. Id. at 381, 410 S.E.2d at 648. The Supreme Court concluded that "[b]roadening the use of the [unexplained death] presumption to such an extent [would] significantly alter[] the jurisprudence of workers' compensation law. This change . . . is more properly a matter of policy, a prerogative of the legislative branch of government." Id. Professor Larson has noted that, "[i]n a pure unexplained-fall case, there is no way in which an award can be justified as a matter of causation theory except by a recognition that [positional risk] but-for reasoning satisfies the 'arising' requirement." 1 Larson, supra, Sec. 10.31(a), at 3-94. However, "Virginia has adopted an 'actual risk' test and has rejected the 'positional risk' test followed by other jurisdictions." Marion Correctional Treatment Ctr. v. Henderson, 20 Va. App. 477, 480, 458 S.E.2d 301, 303 (1995). Thus, in an unexplained fall case in Virginia, a claimant must prove by a preponderance of the evidence that the fall "arose out of" the employment by establishing a causal connection between his or her employment and the fall. The increased effects analysis properly used in idiopathic fall cases does not apply to an unexplained fall situation. The courts are bound by the rationale of Pinkerton's that an unexplained fall is not compensable "[i]n the absence of a showing that the [injury] 'arose out of' the employment." 242 Va. at 381, 410 S.E.2d at 648. In Southland Corp., the court recognized the distinction between unexplained falls and idiopathic falls, and did "not consider the consequences of an unexplained fall by an employee." 1 Va. App. at 284, 338 S.E.2d at 163. PYA/Monarch and Reliance Ins. Co. v. Harris, 22 Va. App. 215, 468 S.E.2d 688 (1996).

The commission did not err in holding that claimant's automobile accident "arose out of" his employment, although claimant's diabetes may have caused his accident. Claimant, a diabetic, was employed as a salesman for a farming supply distributor. His sales area consisted of a large portion of western and southwestern Virginia. His employer routinely provided him a vehicle to travel his sales area and to make sales calls to regular and prospective customers. During a sales call, claimant began to feel symptoms of his diabetes. After drinking a soft drink which he mistakenly believed contained sugar, he began the drive to his next destination. If time permitted, he was planning to visit another customer; if not, he would return to his home office. After claimant traveled just a few miles, he drove off the road, hitting a tree and severely injuring himself. He suffered a cervical vertebral fracture, resulting in quadriplegia. In order for an injured worker to recover under the Act, the claimant must prove an injury by accident "arising out of and in the course of the employment." Code Sec. 65.2-101. "The phrases arising 'out of' and arising 'in the course of' are separate and distinct." County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). "The phrase arising 'out of' refers to the origin or cause of the injury." See id. "An injury 'arises out of' the employment if a causal connection exists between the claimant's injury and 'the conditions under which the employer requires the work to be performed' or a 'significant work related exertion.'" Bassett-Walker, Inc. v. Wyatt, 26 Va. App. 87, 92, 493 S.E.2d 384, 387 (1997) (en banc) (quoting Grove v. Allied Signal, Inc., 15 Va. App. 17, 19, 421 S.E.2d 32, 34 (1992)). An injury does not arise out of one's employment if it is caused by "a hazard to which the employee would have been equally exposed apart from the employment." However, if an injury "has followed as a natural incident of the work and has been a result of an exposure occasioned by the nature of the employment," then the injury "arises out of" the employment. Marion Correctional Treatment Center v. Henderson, 20 Va. App. 477, 480, 458 S.E.2d 301, 303 (1995) (citations omitted). Virginia has adopted the "actual risk" test and has rejected the "positional risk" test followed by other jurisdictions in determining whether an injury arises out of the employment. See Johnson, 237 Va. at 185, 376 S.E.2d at 75-76. The positional risk doctrine generally requires only that the injured employee prove that the injury occurred during the time and at the place of employment. See id.; see also Hill City Trucking v. Christian, 238 Va. 735, 740, 385 S.E.2d 377, 380 (1989); Zahner v. Pathmark Stores, Inc., 729 A.2d 478, 479 (N.J. Super. Ct. 1999) (claimant need prove only "probably more true than not that the injury would have occurred during the time and place of employment rather than somewhere else"). In order to be compensable under the actual risk test, "the origin or cause of the injury" must be a risk connected with the employment. "That risk must be an 'actual risk' of employment, not merely the risk of being injured while at work." Taylor v. Mobil Corp., 248 Va. 101, 107, 444 S.E.2d 705, 708 (1994). The actual risk test "'requires only that the employment expose the workman to a particular danger from which he was injured, notwithstanding the exposure of the public generally to like risks.'" Olsten v. Leftwich, 230 Va. 317, 319, 336 S.E.2d 893, 894 (1985) (quoting Lucas v. Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972)). "[A]n 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.'" Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938) (citation omitted). Traveling in his automobile to call upon customers was a condition of work claimant performed  which exposed him to the risk of an accident each time he traveled. Because claimant's employment exposed him to the danger that caused his injury, his injury by accident arose out of his employment. See PYA/Monarch and Reliance Ins. Co. v. Harris, 22 Va. App. 215, 222-23, 468 S.E.2d 688, 691 (1996). The injury that claimant suffered, a cervical vertebral fracture, was a result of the automobile colliding with a tree, a risk that was directly associated with his employment as a traveling salesman. Although claimant's diabetic condition may have caused the accident, the nature of claimant's employment, specifically the requirement that he routinely travel, contributed to the risk of injury by an automobile accident. The focus is not so much with the cause of an accident as with whether a causal relation exists between the injury and the employment. The focus also must be upon whether "the employment places the employee in a position increasing the dangerous effects of such [an injury] . . . in a moving vehicle." Immer & Company v. Brosnahan, 207 Va. 720, 726,152 S.E.2d 254, 258 (1967). Claimant's injuries were not limited to those he might have suffered solely as a result of a diabetic blackout; the cervical vertebral fracture was a result of the automobile accident. As the Court explained in PYA/Monarch and Reliance Ins. Co. v. Harris, "[w]hen an employee's injuries result from [a pre-existing personal disease of the employee] and no other factors intervene or operate to cause or contribute to the injuries sustained . . . , no award shall be made." 22 Va. App. at 222, 468 S.E.2d at 691. "However, 'the effects [an accident caused by a pre-existing condition or] idiopathic fall are compensable if the employment places the employee in a position increasing the dangerous effects of" the accident. Id. Because claimant's employment subjected him to the risk of injury by accident and increased the dangerous effects of the injury that he received, his injury arose out of his employment. Royster Clark, Inc. v. Bays, Record No. 1031-99-3 (December 14, 1999). WP Version.

An injury '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 fulfilling the duties of his employment or is doing something which is reasonably incidental thereto.'" Lucas v. Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972) (quoting Conner v. Bragg, 203 Va. 204, 207-08, 123 S.E.2d 393, 396 (1962)). Moreover, "compensation under the Act [is] not confined to injuries occurring only during working hours." Id. "If the voluntary act of an employee which causes an injury is sufficiently related to what the employee is required to do in fulfilling his contract of service, or is one in which someone in a like capacity may or must do in the interest of his employer's business, the fact that the employee was not actually required to perform the act will not impair his right to recover compensation." Id. at 564, 186 S.E.2d at 65 (citation omitted).

"The claimant had the burden of establishing, by a preponderance of the evidence, and not merely by conjecture or speculation, that [he] suffered an injury by accident which arose out of . . . the employment." Central State Hosp. v. Wiggers, 230 Va. 157, 159, 335 S.E.2d 257, 258 (1985). "To prove the 'arising out of' element, [in a case involving injuries sustained from falling down stairs at work,] [claimant] must show that a condition of the workplace either caused or contributed to [his] fall." Southside Virginia Training Ctr. v. Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995) (citing County of Chesterfield v. Johnson, 237 Va. 180, 184, 376 S.E.2d 73, 76(1989)). This analysis "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 [claimant] would have been equally exposed apart from the employment." R & T Investments, Ltd. v. Johns, 228 Va. 249, 253, 321 S.E.2d 287, 289 (1984).

Assaults that are not directed against an employee as an employee or because of his employment, for example, assaults for personal reasons, do not arise out of the employment. Richmond Newspapers, Inc. v. Hazlewood, 249 Va. 369, 457 S.E.2d 56 (1995). Normally, If an employee is at fault as an aggressor in an altercation, compensation is denied because the proximate cause of the injury is the fault of the employee, not the employment. Farmers' Mfg. Co. v. Warfel, 144 Va. 98, 131 S.E. 240 (1926). Injuries from mutual participation in horseplay is not an injury by accident. Injuries to a claimant who is not participating in horseplay are compensable. Dublin Garment Co. v. Jones, 2 Va. App. 165, 342 S.E.2d 638 (1986). Horseplay condoned by the employer is compensable. Jackness v. National Automobile Dealers Corp., 60 O.I.C. 224 (1981). Horseplay is an affirmative defense with the burden of proof on the employer. Simms v. Boddie Noell Enterprises, Inc., 63 O.I.C. 303 (1984).

Benefits were properly awarded to a claimant who was struck by a co-worker because of a work- related disagreement and who was not the aggressor. Surface Technologies Corporation v. Kerry Orlando Ridley, Record No. 1468-98-1 (February 2, 1999).

Benefits were properly awarded to a truck driver who was injured in an altercation with another motorcyclist in a dispute over the truck driver's driving. In determining if an accident arises out of the employment, Virginia applies the "actual risk" test, which "requires that the employment subject the employee to the particular danger that brought about his or her injury." Lipsey v. Case, 248 Va. 59, 61, 445 S.E.2d 105, 106 (1994) (citations omitted); see, e.g., Hill City Trucking, Inc. v. Christian, 238 Va. 735, 739, 385 S.E.2d 377, 379 (1989); Park Oil Co., Inc. v. Parham, 1 Va. App.166, 169, 336 S.E.2d 531, 533 (1985). "Consequently, an accident arises out of the employment when it is apparent to a rational mind, under all attending circumstances, that a causal connection exists between the conditions under which the work is required to be performed and the resulting injury." Lipsey, 248 Va. at 61, 445 S.E.2d at 107 (citations omitted); see, e.g., R & T Investments, Ltd. v. Johns, 228 Va. 249, 252, 321 S.E.2d 287, 289 (1984); Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 434, 437 S.E.2d 727, 729 (1993). Accordingly, to be entitled to an award arising from an assault, a claimant must establish "that the assault was directed against him as an employee, or because of his employment." Continental Life Ins. Co. v. Gough, 161 Va. 755, 760, 172 S.E. 264, 266 (1934); see Reamer v. Nat'l Serv. Indus., 237 Va. 466, 470, 377 S.E.2d 627, 629 (1989); Park Oil Co., 1 Va. App. at 170, 336 S.E.2d at 533-34. "'[A] showing that the probability of assault was augmented . . . because of the peculiar character of the claimant's job'" supplies the requisite causal connection. R & T Investments, Ltd. v. Johns, 228 Va. at 253, 321 S.E.2d at 289 (citation omitted); Roberson v. Whetsell, 21 Va. App. 268, 271, 463 S.E.2d 681, 683 (1995) (citation omitted); see Reamer, 237 Va. at 470, 377 S.E.2d at 629 ("A physical assault may constitute an 'accident' . . . when it appears that it was a result of an actual risk arising out of employment."). Here, the motorcyclist's furious attack on claimant was triggered by claimant's "need to occupy part of two lanes to negotiate a turn in a tractor trailer and the difficulty in seeing a small object such as a motorcycle on the right side," impersonal circumstances directly attributable to the duties of his employment and clearly satisfying the "arising out of" prong of compensability. Employer's reliance on Hill City and Metcalf v. A.M. Exp. Moving Systems, Inc., 230 Va. 464, 339 S.E.2d 177 (1986), is misplaced. In contrast to the instant circumstances, claimants in both Hill City and Metcalf failed to establish the requisite nexus between the risks of employment and the assaults there in issue. Smithfield Packing Company, Inc. v. U. W. Carlton, Record No. 0402-98-1 (February 23, 1999).

Injury from Coworker's Friendly Clap on the Back not Compensable. While in the course of his employment as a police officer, claimant was approached by another police officer, who clapped claimant on the back and lower neck, as a form of greeting, without any intention to hurt claimant. Claimant felt immediate pain and later sought medical treatment for injuries sustained as a result of the incident. No evidence indicated that the officer who "clapped" claimant on the back and neck did so with any intent to engage in playful or prankish behavior, such that his actions could be considered horseplay. A clap on the back in greeting is more akin to the friendly "goosing" in [Richmond Newspapers v.] Hazelwood, [249 Va. 369, 457 S.E.2d 56 (1995)] than it is to horseplay, which is defined as "rough or boisterous play or pranks. "In addition, no evidence brought this case within the ambit of a compensable assault case. Rather, the undisputed evidence proved that the injury was caused by the personal greeting of one police officer to another and did not arise from an actual risk connected with claimant's employment. Contrary to claimant's argument, no evidence showed that the greeting was directed at claimant because of his employment as a police officer or that it benefited the employer in any manner. Accordingly, claimant's evidence did not sustained his burden of proving that his injury arose out of his employment. Donald James Johnson v. County of Henrico Police, Record No. 2266-99-2 (January 18, 2000). WP Version.

Benefits were properly denied to a truck driver, who, while making a delivery  heard someone tell him to wait while they got a key for the door. Claimant testified that he heard a voice from inside the building and heard some keys jingling, and the next thing he remembered was waking up in the hospital. When claimant woke up, he realized that his watch and wallet were missing. The incident was treated as a robbery and investigated by the police. There was no evidence tending to prove that he was targeted because of his employment as a truck driver. There was no evidence that claimant's assailant took any merchandise from claimant's truck, or even attempted to enter the truck. Nor was there any evidence presented regarding any previous assaults or criminal acts occurring behind this store. The fact that the assault took place behind the store, where the general public generally did not go, is insufficient. "'To qualify for workers' compensation benefits, an employee's injuries must result from an event "[a]rising out of" and "in the course of" the employment.' In determining if an accident arises out of the employment, Virginia applies the 'actual risk' test, which 'requires that the employment subject the employee to the particular danger that brought about his or her injury.'" Smithfield Packing Co., Inc. v. Carlton, 29 Va. App. 176, 181, 510 S.E.2d 740, 742 (1999) (quoting Lipsey v. Case, 248 Va. 59, 61, 445 S.E.2d 105, 106 (1994) (citations omitted)). "An accident arises out of the employment if a causal connection is established between the employee's injury and the conditions under which the employer required the work to be performed. The causative danger must be peculiar to the work and not common to the neighborhood." Roberson v. Whetsell, 21 Va. App. 268, 271, 463 S.E.2d 681, 682 (1995). "Moreover, the claimant has the burden of proving by a preponderance of the evidence that the injury was an actual risk of the employment." Hill City Trucking v. Christian, 238 Va. 735, 739, 385 S.E.2d 377, 379 (1989) (holding that a truck driver's injuries sustained during a robbery did not arise out of his employment as an over-the-road truck driver where there was no evidence establishing a nexus between the criminal act and his employment). "[T]o be entitled to an award arising from an assault, a claimant must establish 'that the assault was directed against him as an employee or because of his employment.'" Smithfield Packing, 29 Va. App. at 181, 510 S.E.2d at 742 (citation omitted). "The requisite nexus in an assault case is supplied if there is 'a showing that the probability of assault was augmented either because of the peculiar character of the claimant's job or because of the special liability to assault associated with the environment in which he must work.'" Jobs often held to pose a special risk of assault are those that involve working in or traveling through dangerous areas. Roberson, 21 Va. App. at 271, 463 S.E.2d at 683 (citation and footnote omitted).  Willard Y. Jefferies v. Richfood Holdings, Inc., Record No. 0707-99-2 (August 10, 1999). WP Version.

Sexual assaults. Sec. 65.2-301 provides that an employee who is sexually assaulted in the course of employment and promptly reports the assault to law enforcement, and where the nature of the employment substantially increases the risk of such assault. Otherwise, the test is the usual test in assault cases: whether the assault was directed against the employee as an employee or because of the employment as opposed to being personal in nature. Carr v. City of Norfolk, 15 Va. App. 266, 422 S.E.2d 417 (1992).

Death Presumption. Where 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. Sullivan v. Suffolk Peanut Co., 171 Va. 439, 444, 199 S.E. 504, 506 (1938). However, the death presumption applies only if there is an absence of evidence contrary to the conclusion that the death arose out of the employment. See Hopson v. Hungerford Coal Co., Inc., 187 Va. 299, 305, 46 S.E.2d 392, 394 (1948).

Claimant, a prison guard, testified that on the day he slipped on stairs, he had just acknowledged tower two, was descending the stairs, and was observing tower one when the accident occurred. Observation of the guard towers was one of the security functions of his employment. The way in which he performed this aspect of his job increased his risk of falling on this occasion and directly contributed to cause his fall and injury. Cf. United Parcel Service v. Fetterman, 230 Va. 257, 259, 336 S.E.2d 892, 893 (1985). He would not have been equally exposed to the risk apart from his duty to observe the guard towers and provide security at the facility. Cf. Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). Henderson's injury occurred because of the performance of his job duties in a particular manner. Therefore, the cause of the injury was not "unrelated to any hazard common to the workplace." United Parcel Service v. Fetterman, 230 Va. 257, 259, 336 S.E.2d 892, 893 (1985). Because claimant's employment exposed him to a danger that caused his injury, it arose out of his employment. Id.

Another employee was walking briskly, with her head turned away from claimant, and collided with claimant as she spoke to another employee in a hallway.  Credible evidence supports the commission's factual findings and related conclusion that claimant's injuries were caused by an actual risk of employment. The issue is not whether the accident is of the type that occur outside the workplace; the issue is whether the workplace, in the particular situation at hand, exposed the claimant to the risk of injury. In this case, the injury was caused by the inattentiveness of a co-employee. Accidents due to the negligence of co-workers historically have been found to arise out of the employment. See Goodyear Tire &Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987); Eastern State Hospital  v. Tenia P. Roberson, Record No. 2211-98-1 (January 19, 1999).

The commission could reasonably infer that a car salesman's employment-related need to rush to reach a customer first in order to have the opportunity to make a sale distracted him from focusing on the stairs, which caused him to fall and resulted in his injuries. The evidence supported an inference that conditions of the workplace either caused or contributed to claimant's injuries. Checkered Flag Motor Car Company v. Chettiar, Record No. 1290-99-1 (October 5, 1999). WP Version.

Claimant was injured when he jumped from a moving truck he was driving while in the course of his employment. Claimant stated that he had no steering and the brakes would not operate. As a result, claimant stated that the truck's speed increased and he became scared because he could not steer the truck around an upcoming curve. Consequently, he he made a "split second decision" to jump from the truck out of the passenger door. The back wheels of the truck ran over claimant, causing him to sustain severe injuries. Although claimant's account contains aspects which are not reasonable or plausible, this did not require the commission to reject the basic account of the accident which is supported by the evidence. The commission did not err, as a matter of law, by crediting claimant's account that he jumped from the truck while it was moving, regardless of the reason. The commission was entitled to weigh all of the evidence and to infer that the accident more than likely occurred because claimant shifted the truck out of gear on the hill (at most mere negligence and not willful misconduct) or it popped out of gear, causing him to lose control of the truck. R.S. Jones and Associates v. Timmy D. Dean, Record No. 2863-98-2 (June 29,1999). WP Version.

Animal Bites. In Lipsey v. Case, 248 Va. 59, 445 S.E.2d 105 (1994), claimant 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 claimant's required work and her injury. See id. at 61-62, 445 S.E.2d at 107. Although the dog lived in the house and freely roamed the farm, the employer did not direct claimant to have physical contact with the dog.  

Claimant was an assistant school principal who was directed by the principal of the school, her supervisor, to go to a car in which the principal's daughter had brought a dog and "meet the dog." The assistant principal did so and the dog bit her on the nose. Claimant's 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 did not err in concluding that claimant's evidence proved that her "injury resulted from an actual risk of her employment." 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, Sec. 22.04(2) (1999). Prince William County School Board v. Fogarty, Record No. 1866-98-4 (August 31, 1999). WP Version.

    The Workers' Compensation Commission (the commission) did not err in finding decedent's death arose out of his employment and in awarding  award benefits to decedent's wife for the death of her husband.  Decedent was working on a school roof out of sight of coworkers. In order to go from the first story roof to the ground, decedent had to lower a twenty-foot extension ladder to the ground.  Several people inside the school heard the sound of the extension ladder being displaced and something striking the concrete pavement.
    Shortly thereafter, decedent was found lying on the ground combative, disoriented, mumbling and with an open-head wound.  Loose gravel from the roof was found on the ground around him.  No one witnessed decedent's fall, and decedent was unable to provide anyone with the details of what happened.  He was transported by ambulance to a nearby trauma center.
      An angiogram was performed at the trauma center after which decedent suffered cardiac arrest.  Decedent was revived but subsequently arrested two more times and was pronounced dead at 6:04 p.m.  No autopsy was performed.  The medical examiner, Dr. Hoffman, filed a certificate of death stating that death was caused by "closed chest and head injuries."
    Although the commission erred in finding the unexplained death presumption recognized in Southern Motor Lines Co. v. Alvis, 200 Va. 168, 104 S.E.2d 735, to be applicable to the claim, it did not err in finding the evidence sufficient to establish the fatal injury arose out of decedent's employment.  In Southern Motor Lines Co. v. Alvis, 200 Va. 168, 104 S.E.2d 735, the Supreme Court of Virginia acknowledged the following presumption in certain cases involving an unexplained death: "[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." Id. at 171-72, 104 S.E.2d at 738-39 (internal citations omitted) (emphasis added). The presumption applies to those instances where an employee "is found dead . . . at his place of work" and the circumstances of death are unexplained.  The presumption does not apply to a case such as the one at bar, where decedent was not found dead at his place of work, but rather suffered injuries in an unexplained accident that later proved to be fatal. See Pinkerton's, Inc. v. Helmes, 242 Va. 378, 380-81, 410 S.E.2d 646, 648 (1991). 
    Nevertheless, the evidence as a whole preponderates that decedent died as a result of a fall of approximately fifteen feet onto concrete as he was attempting to descend from the roof where he was working. While no one witnessed the fatal incident, claimant presented the death certificate, which provides that decedent's death was due to closed head and chest injuries.  Dr. Hoffman, the medical examiner, testified, to a reasonable degree of medical certainty, that decedent died as a result of closed head and chest injuries sustained in the fall.  Dr. Waters also offered his opinion, "I believe he died from the fall."  In addition, there is non-expert circumstantial evidence supporting the commission's finding, including the fact that people heard the ladder being displaced, the fact that loose gravel from the roof was found on the ground next to decedent, the fact that decedent was feeling well prior to the accident and he did not complain prior to or after the accident of chest pain.  There is no evidence that decedent suffered a myocardial infarction. Evidence was presented which, directly or by inference, established that the fatal injuries arose out of decedent's employment as a roofer.  "'[A]n accident arises out of the employment when it is apparent to a rational mind, under all attending circumstances, that a causal connection exists between the conditions under which the work is required to be performed and the resulting injury.'"  Smithfield Packing Co., Inc. v. Carlton, 29 Va. App. 176, 181, 510 S.E.2d 740, 742 (1999) (citation omitted)).  Employer did not present evidence to rebut claimant's credible evidence.  It simply presented Dr. Waters' opinion that decedent did not die as a result of his head injuries.  Dr. Waters was unable to determine a cause of death and did not opine as to the possibility that decedent died as a result of the closed head and chest injuries as determined by the medical examiner.  It presented Dr. Hagberg's medical opinion that he was unable to determine the cause of death, but in which he proffered a guess that decedent "most likely" died as the result of a myocardial infarction unrelated to his fall.  Yet, Dr. Hagberg admitted this theory was speculative and not made with a reasonable degree of medical certainty.  K & G Abatement Company v. Thomas E Keil, Record No. 0164-02-1 (August 20, 2002). WP Version.

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