COURT OF APPEALS OF VIRGINIA
Present: Judges Humphrey s, McClanahan and Beales Argued at Lexington, Virginia

SEARS ROEBUCK & COMPANY AND INDEMNITY IN SURANCE COMPANY OF NORTH AMERICA MEMORANDUM OPINION * BY v. Record No. 2168-10-3 J UDGE RANDOLPH A. BEALES MAY 10, 2011 BRIAN MARTIN

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Angela F. Gibbs (Lorraine B. D’Angelo; Midkiff, Muncie & Ross, P.C., on brief), for appellants. Charles M. Aaron for appellee.
Sears Roebuck & Company (Sears) and its insurer appeal the decision of the Workers’ Compensation Commission (the co mmission) finding that Brian Ma rtin, the claimant, suffered a compensable injury by accident and was entitled to temporary total disability benefits from August 8, 2009, through November 23, 2009. On appeal , Sears argues that Martin’s injury did not arise out of his employment, as required by Code § 65.2-101. For the following reasons, we affirm the commission’s decision.
I. B ACKGROUND Martin was employed in the Sears packagi ng pick-up and receiving department. His employment at Sears required him to load heavy merchandise (such as lawn mowers, refrigerators, stoves, dryers, and televisions) into customers’ vehicles between ten and thirty times every day. Describing this process, Martin testified thatthe customer would present a

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - merchandise receipt to him in a small lobby calle d the pick-up area. Af ter scanning the receipt into a computer in the pick-up lobby, Martin would retrieve the merchandise from the stock room, which was located behind the pick-up lobb y. After retrieving the merchandise, Martin would assist the customer with positioning the vehicle in the loading area outside the pick-up lobby, using hand signals to help customers b ack up to the seven-inch curb that was approximately ten feet from the entrance to th e lobby. Sometimes he would signal customers from inside the pick-up lobby through its glass front, and sometimes he would signal from the sidewalk that ran between the curb and the entrance to the lobby. Af ter a customer parked in that area, Martin then would load the merc handise in the customer’s vehicle. On August 8, 2009, Martin retrieved a custom er’s 46-inch television from the stock room, placed the television on a hand truck, took the television to the pick-up lobby, and began signaling to the customer through the window – fr om about five feet inside the lobby. The customer backed his Ford Explorer to the cur b, but then continued backing his vehicle over the curb and onto the sidewalk. The Explorer then proceeded in reverse through the entrance to the pick-up lobby – striking Martin and another employee who was standing next to him. Martin testified at the hearing before the deputy commissi oner that “it all happened so fast I didn’t have time to move out of the way.” The force of the impact knocked Martin back into the store’s stock room, rendering him unconscious for about twenty minutes. Martin suffere d injuries to his left shoulder and arm, left knee, back, neck, and middle finger. Martin filed a claim in the commission seeki ng temporary total disabi lity benefits. Sears asserted that Martin’s injuries were not comp ensable under Code § 65.2-101 because his injuries did not arise out of his employment.- 3 - Martin testified at the evidentiary hearing th at he had seen vehicles back onto the curb before. He had also seen “a few” vehicles hit lawn mowers that were displayed on the sidewalk outside of the entrance to th e pick-up lobby. Victoria Bow ling, a Sears human relations manager, testified at the hearing that she knew of one prior incident in which a customer’s vehicle had struck a lawn mower on the sidewalk. The deputy commissioner found that the risk of being hit by a customer’s vehicle “was substantially increased” by Mart in’s work environment, which required him to “work in close proximity to vehicles being backed up” and to “transport heavy merchandise.” Thus, the deputy commissioner found that Martin’s injuries aros e out of his employment and, therefore, were compensable. On review, the full commission unanimously affirmed the deputy commissioner’s finding of compensability. The commi ssion found that there were “a comb ination of factors involved in this case which, taken as a whole, show the acci dent arose out of the claimant’s employment.” 1
II. A NALYSIS A. Standard of Review On appeal, Sears argues that Martin failed to satisfy his burden to pr ove that his injuries arose out of his employment, as require d by the Workers’ Compensation Act. See Code § 65.2-101 (providing that compensabl e injuries must be “by acciden t arising out of and in the course of the employment”); see also Marketing Profiles v. Hill , 17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993) (en banc) (no ting that the claimant must prove compensability by a

1 Unlike the deputy commissioner, the full commission found that it was “unclear” whether the hand truck hindered Martin’s ability to avoid the Explorer, given Martin’s equivocal testimony that he “may” have been able to move out of the way had he not been holding the hand truck.- 4 - preponderance of the evidence). This issue pr esents a mixed question of law and fact. City of Waynesboro v. Griffin , 51 Va. App. 308, 312, 657 S.E.2d 782, 784 (2008). “The mere fact that an employee was inju red at work is not enough to show that his injury arose out of his employment.” Id. at 313, 657 S.E.2d at 784; see County of Chesterfield v. Johnson , 237 Va. 180, 185, 376 S.E.2d 73, 76 (1989). Thus, for an injury to be compensable, a claimant must establish “a causal connection be tween the claimant’s in jury and the conditions under which the employer requires the work to be performed.” R.T. Investments v. Johns , 228 Va. 249, 252, 321 S.E.2d 287, 289 (1984). On appeal, this Court reviews the facts in the light most favora ble to the party who prevailed before the commission. Apple Constr. Corp. v. Sexton , 44 Va. App. 458, 460, 605 S.E.2d 351, 352 (2004). “[W]e must defer to the co mmission’s findings of fact if supported by credible evidence in the record.” Diaz v. Wilderness Resort Ass’n , 56 Va. App. 104, 114, 691 S.E.2d 517, 522 (2010); see Code § 65.2-706. “‘In determini ng whether credible evidence exists, the appellate court does no t retry the facts, reweigh the pr eponderance of the evidence, or make its own determination of the credibility of the witnesses.’” Pruden v. Plasser Am. Corp. , 45 Va. App. 566, 574-75, 612 S.E.2d 738, 742 (2005) (quoting Wagner Enters. v. Brooks , 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)). B. “Actual Risk” Test The Virginia appellate courts ap ply “the ‘actual risk’ test” to determine if an injury arises out of employment. Simms v. Ruby Tuesday, Inc. , 281 Va. 114, 122, 704 S.E.2d 359, 363 (2011). “Under the actual risk te st, an injury comes within the Act ‘only if there is a causal connection between the employee’s injury and th e conditions under which the employer requires the work to be done.’” Id. (quoting Hilton v. Martin , 275 Va. 176, 180, 654 S.E.2d 572, 574 (2008)). Thus, “[i]n consider ing the ‘arising out of’ prong” of Code § 65.2-101, Virginia- 5 - appellate courts “do not apply the ‘positional risk ’ test, whereby simply sustaining an injury at work is sufficient to establish compensability.” Hilton , 275 Va. at 180, 654 S.E.2d at 574. “Under [the ‘actual risk’] 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 exposur e occasioned by the nature of the employment, then it arises ‘out of’ the employment. But [the applicable 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 em ployment. The causative danger must be peculiar to the work a nd not common to the neighborhood. It must be incidental to the character of the business and not independent of the relati on of master and servant. It need not have been foreseen or expected, but af ter the event it must appear to have had its origin in a risk conn ected with the employment, and to have flowed from that sour ce as a rational consequence.” Simms , 281 Va. at 122-23, 704 S.E.2d at 363 (quoting Bradshaw v. Aronovitch , 170 Va. 329, 335, 196 S.E. 684, 686 (1938)).
C. Green Hand Nursery, Inc. v. Loveless On appeal, Sears relies primar ily on this Court’s opinion in Green Hand Nursery, Inc. v. Loveless , 55 Va. App. 134, 684 S.E.2d 818 (2009). In both Loveless and in this case, a vehicle struck a claimant while the claimant was at work. Although this Court affirmed the commission’s finding that Lovele ss’s injury arose out of her em ployment under the “actual risk” test, Sears argues that this finding in Loveless was supported by circumstances that are not present here.
In Loveless , this Court held that “being struck by a vehicle on the work premises alone does not establish the required causation” to prevail under the “actual risk” test. Id. at 142, 684 S.E.2d at 822. To prove that her injury arose ou t of her employment, Loveless was required to demonstrate that the origin of her injury “r esulted from a peculiar condition related to her employment.” Id. The commission found that Loveless sati sfied this burden by proving that she- 6 - was distracted by her employment at the time of the accident and that her attempt to evade the vehicle that ultimately struck her was impeded by some workplace materials. 2 Thus, this Court held in Loveless that the commission “could properly infe r from these facts that, but for her job duties and the physical obstacles confronting her, she could have avoided injury.” Id. Unlike in Loveless , the commission here found that ther e was “no element of distraction” in this case and that it was “uncl ear” whether Martin would have b een able to avoid the Explorer if he had not been holding the hand truck at th e time of the accident. However, this Court certainly did not hold in Loveless that, to prove a compensable in jury when hit by a vehicle in the course of employment, a claimant must prove that his workplace duties distracted him and that workplace materials impeded his path to safety. Those specific facts were simply the particular circumstances that es tablished the required causal c onnection between the employment and the claimant’s injury in Loveless – and are not the elements of a legal test to apply in all cases. Instead, the proper legal te st requires that Martin prove that his injuries can “fairly be traced to the employment as a contributing proximate cause,” Bradshaw , 170 Va. at 335, 196 S.E. at 686, viewing the evidence in the light most favorable to Martin, as the prevailing party in the commission, Sexton , 44 Va. App. at 460, 605 S.E.2d at 352. D. Causal Connection Between Employment and Injury Here, the commission found that Martin prove d “the necessary causation” between the conditions of his employment inju ry and his workplace injuries. Loveless , 55 Va. App. at 142,

2 In Loveless , the claimant was an assistant manage r for a plant nursery that abutted a highway. As part of her duties, Loveless was requir ed to shut off the spri nklers that were located about twenty-seven feet from the highway. L oveless’s attention was fu lly “occupied” by this task until she heard the screeching of tires. Sh e saw a vehicle “flying” off the highway and heading in her direction. Loveless began running toward a tree line, but was hindered by some potted plants and slippery “weed mats.” The vehicle struck Loveless about 150 feet away from the roadway – about a foot away from the tree line. Loveless , 55 Va. App. at 138-40, 684 S.E.2d at 820-21.- 7 - 684 S.E.2d at 822. Among the “combination of fact ors involved in this case which, taken as a whole, show the accident arose out of the claimant’s employment,” the commission found: [T]he claimant’s employment dutie s in this case required him to continually work in an area designa ted for the loading of vehicles. On some days the claimant load ed over 30 customer vehicles. Although the lobby area was not intende d to be a path for traffic, this area was used for merchandise pick-up and was in close proximity to where vehicles were routinely operating in reverse and had, on prior occasions, run ove r the curb or struck lawn mowers located in front of this ar ea. The vehicle which struck the claimant was in the process of getting into a position for the claimant to load the television set into it. The commission’s “determination regardi ng causation is a finding of fact,” Farmington Country Club v. Marshall , 47 Va. App. 15, 26, 622 S.E.2d 233, 239 (2005), which is binding on this Court if supported by credible evidence in the record below, see Wagner Enters. , 12 Va. App. at 894, 407 S.E.2d at 35. Moreover, on appeal, this Court wi ll not disturb any “reasonable inferences” drawn by the commissi on (as the factfinder) “from the facts proven by the evidence presented.” Turf Care, Inc. v. Henson , 51 Va. App. 318, 324, 657 S.E.2d 787, 789-90 (2008). Here, the commission relied on several circumstan ces to conclude that Martin’s injuries arose out of his employment. First, the commissi on noted that Martin was required to load heavy merchandise in vehicles for as many as 30 customers each work day. Second, the commission noted the specific manner in which the customers’ vehicles were positioned for loading, which required Martin to give directions to customers while they backed their cars up to the curbside loading area. On prior occasions, the commission noted, customers’ vehicles had driven over the curb and even struck lawn mowers on display ne ar the entrance to the pick-up lobby. Third, the commission noted the close proximity of the curb side loading area and th e inside pick-up lobby, where the vehicle struck Marti n. Although he was inside the pi ck-up lobby, Martin was standing no more than fifteen feet from the curb while the customer was backing up his vehicle – giving- 8 - Martin very little time to reac t as the Explorer backed into him and another Sears employee standing next to him (and hitting Martin with such force that it knocked him back into the stock room). Fourth, the commission noted that Martin was struck by the vehicle of the very same

customer who purchased the 46-inch television that Martin was preparing to load. 3 The combination of all of these circumstances, th e commission found, exposed Martin “to a greater risk of being injured in a vehicular accident such as the one that occurred on August 8, 2009.” Given these many circumstances connecting Martin’s workplace conditions with the accident that resulted in his injuries, the eviden ce here certainly established more than simply “an injury which comes from a hazard to which the employee would have been equally exposed apart from the employment.” United Parcel Service v. Fetterman , 230 Va. 257, 258-59, 336 S.E.2d 892, 893 (1985). This case, therefore, is unlike Johnson , 237 Va. 185, 376 S.E.2d at 76, where the claimant injured himself si mply walking down some stairs, or Fetterman , 230 Va. at 259, 336 S.E.2d at 893, where the claimant injured hi s back simply bending over to tie his shoe. See also Central State Hospital v. Wiggers , 230 Va. 157, 335 S.E.2d 257 (1985) (claimant simply twisted an ankle while getting up to answer phone); Richmond Mem. Hosp. v. Crane , 222 Va. 283, 278 S.E.2d 877 (1981) (claimant simply in jured a foot while wa lking on clean, level floor). Thus, as in Loveless , credible evidence supports the commission’s finding of several circumstances connecting the claimant’s employm ent to the claimant’s workplace injuries – in addition to the fact that a vehicle struck Martin while he was at work. Loveless , 55 Va. App. at

3 The fact that Martin was struck by the cu stomer’s vehicle is a significant difference from the facts in Loveless . There, the driver of the vehicl e that veered from the highway and ultimately struck Loveless was not a customer of the nursery and had no connection with Loveless’s workplace at the time of the accident. See Loveless , 55 Va. App. at 138-39, 684 S.E.2d at 820-21.- 9 - 142, 684 S.E.2d at 822. Accordingly, the commission did not err in finding that Martin’s injuries arose out of his employment under Code § 65.2-101.
III. C ONCLUSION The record here supports the commission’s findi ng that Martin’s workplace injuries arose out of his employment with Sears. See Code § 65.2-101. Accordingly, for the foregoing reasons, we affirm the commission’ s award of temporary total disa bility benefits from August 8, 2009 through November 23, 2009. Affirmed.