COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Frank and Senior Judge Hodges 

Argued at Salem, Virginia 

ROYSTER CLARK, INCORPORATED 

 AND LEGION INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 1031-99-3 JUDGE SAM W. COLEMAN III 

 DECEMBER 14, 1999 

CHARLES D. BAYS 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Mark S. Davis (Nancy C. Auth; Carr & Porter, 

L.L.C., on briefs), for appellants. 

 Richard M. Thomas (Rider, Thomas, Cleaveland, 

Ferris & Eakin, on brief), for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 Royster Clark, Incorporated and Legion Insurance Company 

appeal the Workers' Compensation Commission's decision awarding 

Charles D. Bays benefits for injuries sustained in an automobile 

accident. The commission held that the automobile accident "arose 

out of" Bays' employment. We agree and affirm the commission's 

decision. 

BACKGROUND

 In January 1998, Bays was employed as a salesman for Royster 

Clark, a farming supply distributor. Bays' sales area consisted 

of a large portion of western and southwestern Virginia. Royster 
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Clark routinely provided Bays a vehicle to travel his sales area 

and to make sales calls to regular and prospective customers. 

Bays traveled approximately 35,000 miles per year for Royster 

Clark. When not calling upon customers, Bays worked from his 

home, where Royster Clark furnished him a telephone, fax machine, 

copier, and typewriter. 

 On January 21, 1998, Bays made a sales trip to several 

localities in southwest Virginia. While calling on a customer at 

Gate City, Bays, who had been diabetic for more than twenty years, 

felt his blood sugar "getting low." Based on past experience, 

Bays knew that his thought process could become impaired. 

Nevertheless, he continued the meeting with his client and planned 

to get a Coke from a vending machine at the first opportunity in 

order to elevate his blood sugar level. When Bays did so, he 

mistakenly purchased a Diet Coke. Believing that he had corrected 

the diabetic problem, Bays got into his vehicle and began the 

drive to his next destination. If time permitted, Bays was 

planning to visit another customer; if not, Bays would return to 

his home office in Salem. After Bays traveled just a few miles, 

he drove off the road, hitting a tree and severely injuring 

himself. Bays suffered a cervical vertebral fracture, resulting 

in quadriplegia. 
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ANALYSIS

 Royster Clark concedes that Bays suffered an injury 

occurring "in the course of" his employment, but asserts that 

Bays failed to prove that his accident "arose out of" his 

employment. Royster Clark argues that Bays was responsible for 

exposing himself to an increased risk of injury by driving when 

he knew that he was impaired and that this increased risk was 

not peculiar to his employment but was solely related to his 

diabetic condition. In addition, Royster Clark argues that the 

commission erred in describing Bays' diabetic condition as 

idiopathic. 

 On appeal, we view the evidence in the light most favorable 

to Bays, the prevailing party. See R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788-89 (1990). 

We accept the commission's factual findings when they are 

supported by credible evidence. See James v. Capitol Steel 

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). 

"This Court is not bound by the legal determinations made by the 

commission. '[W]e must inquire to determine if the correct 

legal conclusion has been reached.'" Cibula v. Allied Fibers & 

Plastics, 14 Va. App. 319, 324, 416 S.E.2d 708, 711 (1992) 

(quoting City of Norfolk v. Bennett, 205 Va. 877, 880, 140 

S.E.2d 655, 657 (1965)), aff'd, 245 Va. 337, 428 S.E.2d 905 

(1993) (per curiam). "Whether an injury arises out of the 
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employment is a mixed question of law and fact . . . ." Plumb 

Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d 

305, 305 (1989). 

 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 § 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). 
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 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 
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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). 

 Royster Clark employed Bays as a salesman. The employer 

required that Bays travel to meet with customers in the western 

and the southwestern part of Virginia and provided him a car for 

his travel. Traveling in his automobile to call upon customers 

was a condition of work performed by Bays which exposed him to 

the risk of an accident each time he traveled. Because Bays' 

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 Bays 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. 

 The employer argues, however, that it was Bays' diabetic 

condition that caused the accident, not a risk associated with 

his employment; thus, Bays' injuries are not compensable. 

However, for workers' compensation purposes, we are not so much 

concerned with the cause of an accident as we are with whether a 

causal relation exists between the injury and the employment. 

Although Bays' diabetic condition may have caused the accident, 
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the nature of Bays' employment, specifically the requirement 

that he routinely travel, contributed to the risk of injury by 

an automobile accident. Bays' 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 we explained in PYA/Monarch, "[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 Bays' employment 

subjected him to the risk of injury by accident and increased 

the dangerous effects of the injury that he received, Bays' 

injury arose out of his employment. 

 Finally, the employer argues that our Supreme Court held in 

Immer & Company v. Brosnahan, 207 Va. 720, 152 S.E.2d 254 

(1967), that before the effects of a pre-existing condition can 

be excused as having caused the accident, the condition must 

have occurred "suddenly and without expectation." The employer 

argues that Bays' diabetic episode occurred before he entered 

his vehicle and was not "suddenly and without expectation." We 
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do not find that the Supreme Court adopted such a requirement in 

Immer. Although such language was included in a quote from a 

case cited with approval in Immer, 207 Va. at 727, 152 S.E.2d at 

259; Tapp v. Tapp, 236 S.W.2d 977 (Tenn. 1951), the Court did 

not require that the pre-existing condition occur "suddenly and 

without expectation." In fact, the Court, as we do here, 

focused upon whether "the employment places the employee in a 

position increasing the dangerous effects of such [an injury] 

. . . in a moving vehicle." Immer, 207 Va. at 726, 152 S.E.2d 

at 258. 

 The commission did not err in its award of benefits; 

therefore, we affirm the decision. 

 Affirmed.