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Prince William County School Board v. Fogarty8/31/1999
MEMORANDUM OPINION*
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Prince William County School Board (employer) appeals a decision of the Workers' Compensation Commission (commission) awarding benefits to Sharon E. Fogarty (claimant). Employer contends the commission erred in finding that claimant proved she sustained an injury by accident arising out of her employment on September 27, 1995. Finding no reversible error, we affirm the commission's decision.
We review the evidence in the light most favorable to claimant as the prevailing party. When so viewed, the record establishes the following:
On September 27, 1995, claimant worked for employer as an assistant principal at Bennett Elementary School. On that date, she and Graham Spencer, the school's principal and her supervisor, were standing outside the school in the parking lot supervising the children as they boarded the school buses to go home. Claimant described part of her assistant principal duties as doing whatever the principal directed her to do.
Spencer's daughter drove into the parking lot and parked her car. She had Barney, a Norwegian Elkhound and the Spencers' family pet, in the car with her. She planned to take Barney to the veterinarian and had stopped at the school to pick up a check from her father.
Claimant testified that Spencer's daughter walked over to where she and Spencer were located. Claimant saw Spencer and his daughter talking. At that point, Spencer directed claimant to go over to the car and "meet the dog." Claimant testified that she declined twice but Spencer continued to insist that she go and see the dog. Claimant then followed Spencer's daughter to the car, where she began petting the dog and talking to Spencer's daughter. At that point, the dog, who had his head out of the car window, bit claimant's nose. On the way to the hospital, Spencer lamented to claimant, "Why did I make you go over there?" The commission, in affirming the deputy commissioner, accepted claimant's testimony and found that she "twice declined Spencer's request that she meet Barney, but finally acquiesced to the request of her supervisor when he directed her to do so a third time." The commission found that " er contact with the dog, although not a part of her regular work duties, was in direct response to a demand of her supervisor." Thus, the commission concluded that claimant's evidence proved that her "injury resulted from an actual risk of her employment." "The commission's decision that an accident arises out of the employment involves a mixed question of law and fact and is thus reviewable on appeal." Southside Virginia Training Ctr. v. Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995).
In Arrington v. Murray, 182 Va. 1, 28 S.E.2d 19 (1943), the Supreme Court held that an injury arises out of the employment when the employee is performing work directed by one of the business partners, even if the work was not in the trade, business, or occupation of the employer but was personal to the partner and performed at his residence. See id. at 5, 28 S.E.2d at 20-21. The Supreme Court agreed with the commission that it would be inequitable to allow an employer to direct an employee to perform work and then deny that the employee was protected by the Virginia Workers' Compensation Act. See id. at 5, 28 S.E.2d at 21. Where the employee is injured while performing an activity that the employer has instructed him or her to do, that work constitutes part of an employee's employment responsibilities and required work, even though different from his or her usual and regular tasks performed in the employer's business. See Honaker & Feeney v. Hartley, 140 Va. 1
Page 1 2 Virginia Personal Injury Attorneys
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