COURT OF APEALS OF VIRGINIA 

Present: Judges Elder, Frank and Humphreys 

Argued at Richmond, Virginia 

VIRGINIA EMPLOYMENT COMMISSION/ 

 COMMONWEALTH OF VIRGINIA 

 OPINION BY 

v. Record No. 1823-03-3 JUDGE ROBERT P. FRANK 

 JUNE 29, 2004 

RHONDA HALE 

 FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION 

 Scott John Fitzgerald, Assistant Attorney General (Jerry W. Kilgore, 

Attorney General; Judith Williams Jagdmann, Deputy Attorney 

General; Edward M. Macon, Senior Assistant Attorney General, on 

brief), for appellant. 

 Rhonda L. Overstreet (Lumsden, Overstreet & Hansen, on brief), for 

appellee. 

 The Virginia Employment Commission/Commonwealth of Virginia (employer) appeals a 

decision of the Workers’ Compensation Commission awarding disability compensation and 

medical benefits to Rhonda Hale (claimant). On appeal, employer contends the commission 

erroneously concluded claimant’s injury, which resulted from a lightning strike, arose out of the 

peculiar conditions of her employment. We find no credible evidence in the record to support 

the commission’s finding, and, therefore, we reverse and dismiss. 

BACKGROUND 

 Claimant worked for employer as an interviewer. That position required claimant to 

perform a variety of different tasks including the operation of the office’s switchboard. On 

May 2, 2002, claimant and a co-worker, Barbara Reynolds, were assigned to work at the 
 -2-

switchboard. This duty was “a normal and necessary part of [their] job[s],” and they did not 

have the option of refusing switchboard duty. 

When claimant returned from lunch, a “big storm was brewing.” “[I]t got real dark 

outside” and was “[t]hunder[ing]” and “light[]ning.” Reynolds initially “was sitting in the main 

switchboard seat,” but she did not feel comfortable there, so claimant “took that position.” 

Reynolds moved to a second telephone within a few feet of claimant. Both women were 

“trouble shooting claims or answering questions from claimants.” They continued to answer the 

phones during the storm because they “had not been instructed not to answer the phone.” 

 While claimant was on the telephone with a caller and had her hand on the computer 

keyboard, she heard “a real loud noise in the telephone” and saw “a big blue . . . transparent 

streak” of light “c[o]me right down beside [her] work station.” Claimant thought “[i]t looked 

like light[]ning.” Claimant screamed or uttered some sort of exclamation. She thought she 

“actually lost the call,” and her computer “flicker[ed].” 

Claimant felt she had been shocked by the lightning. Her extremities began to tingle, and 

her speech became garbled. She immediately reported the incident to Reynolds, who confirmed 

that she, too, saw a streak of light and heard a loud noise. Claimant described her symptoms to 

Reynolds, including “a tingling in her hands and arms, sort of like [she] had been electrocuted.” 

Reynolds observed that claimant “was like shaking or nervous or tense.” Reynolds then asked 

the assistant office manager “if [they] could not answer the phones and he said that [they] had 

to.” Claimant continued to answer the telephone, but said she “hung up on quite a few people 

because [her] speech was garbled.” 

About thirty minutes after the lightning strike, claimant became nauseous and began 

having chest pains. She told her immediate supervisor that they had “what . . . appeared to be 

light[]ning come in,” and she described her symptoms. 
 -3-

The lightning did not damage either claimant’s or Reynolds’s telephone or computer. No 

damage was done to the building’s roof, ceiling tiles, carpet, or furniture. 

Claimant worked through the end of her shift and then sought treatment at the hospital 

emergency room, where she was admitted as a precautionary measure. Emergency room notes 

indicate claimant told the staff that she “was working at her job on a computer and talking on the 

telephone, when she saw a blue streak of light[]ning hit her computer.” Later, claimant visited a 

sleep clinic and described to the personnel: 

an incident at her work suggesting that light[]ning had struck and 

come through the phone or computer line and affected the 

[claimant]. . . . She was not actually struck directly by the 

light[]ning but said that it came through her equipment. She saw a 

blue streak of light[]ning behind a partition where she works. She 

was very close to the blue streak of light[]ning she saw.1

 Claimant was diagnosed with “[e]lectrical shock secondary to light[]ning.” She was later 

diagnosed with post-traumatic stress disorder. Her primary care physician found she was 

temporarily and totally disabled, but was able to return to work on August 20, 2002. 

Employer denied claimant’s request for workers’ compensation benefits, and claimant 

requested a hearing. After taking testimony, the deputy commissioner awarded benefits. He 

found claimant’s evidence was credible and concluded, “claimant, because of her duties as an 

interviewer, was exposed to the causative hazard involved to a degree greater than others in the 

community.” He noted, “claimant’s duties [at employer’s switchboard] were mandatory rather 

than discretionary, and, because [claimant] was assisting a customer over the telephone during a 

thunderstorm, [she] was as a result of her employment exposed to a danger which someone not 

 1

 At the hearing, claimant denied telling any of the doctors that she saw the lightning 

strike the phone or the computer. 
 -4-

similarly situated could have avoided.” The deputy specifically rejected employer’s 

“inferential[]” argument that: 

because the telephone and computer equipment involved 

[sustained no damage], the incident did not occur, and the claimant 

could not have been injured. . . . The fact that other employees at 

[employer]’s facility were unaffected only proves the claimant’s 

case that she was, by virtue of her operation of the switchboard, at 

greater risk of injury during the storm than anyone else. 

 The full commission affirmed the award of benefits, explaining: 

 From this record, we agree with the deputy commissioner 

that the injury arose out of the employment. The deputy 

commissioner explicitly found the claimant to be credible. She 

credibly testified that she was talking at a telephone while 

operating the employer’s switchboard when she saw a lightning 

bolt and felt shocked. Her co-worker corroborated the incident. 

We agree with the deputy commissioner that the claimant’s 

employment, and in particular, her use of the employer’s 

switchboard equipment during a thunderstorm, brought into 

existence a special or peculiar risk of electrical shock through a 

lightning strike. 

ANALYSIS 

 Employer concedes claimant was struck by lightning, but argues no evidence supports a 

finding that her employment placed her at greater risk of being struck. Based on the record and 

controlling precedent, we agree with employer. 

 In order for an employee to recover under the Workers’ Compensation Act, she must 

prove, by a preponderance of the evidence, Hercules, Inc. v. Stump, 2 Va. App. 77, 79, 341 

S.E.2d 394, 395 (1986), that she suffered an “injury by accident arising out of and in the course 

of the employment.” Code § 65.2-101 (definition of “injury” for Workers’ Compensation Act 

cases). “The phrase arising ‘in the course of’ refers to the time, place, and circumstances under 

which the accident occurred. 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). Our 

focus in this case concerns the latter inquiry -- whether claimant’s injury arose “out of” her 
 -5-

employment. Under this prong of the test, “[h]azards to which the general public is equally 

exposed are noncompensable.” Lucas v. Fed. Express Corp., 41 Va. App. 130, 134, 583 S.E.2d 

56, 58 (2003). In order to be entitled to compensation under the “arising out of” prong, an 

employee “must prove that the employment activity in which she was engaged exposed her to 

the injurious risk to an extent to which people were not ordinarily exposed, and thus caused her 

injuries.” Id. at 134, 583 S.E.2d at 59. 

 This determination involves a mixed question of law and fact. Mullins v. Westmoreland 

Coal Co., 10 Va. App. 304, 307, 391 S.E.2d 609, 611 (1990). Therefore, this Court is bound by 

the commission’s factual findings so long as they are supported by credible evidence, even if 

“contrary evidence may be found in the record.” Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 

227, 229, 409 S.E.2d 824, 826 (1991). See Code § 65.2-706(A) (commission’s award “shall be 

conclusive and binding as to all questions of fact.”). 

 We recently considered, in Lucas, 41 Va. App. 130, 583 S.E.2d 56, the issue of whether 

injuries caused by a lightning strike arose out of the claimant’s employment. We find Lucas

compels our decision in this case and requires us to reverse the commission’s decision. 

Lucas recites the rule for compensability of injuries flowing from natural disasters as 

follows: 

“If an employee is injured by some natural force, such as . . . 

[being] struck by lightning during a storm, . . . the event does not 

in and of itself fasten liability on the employer. The theory is that 

death or any incapacity to work resulting from some natural force 

operating directly upon the victim without the intervention of any 

other agency or instrumentality, arises not out of the employment 

but is due solely to an act of God. However, when the nature of 

the employment, or some condition, or environment therein, brings 

into existence a special or peculiar risk to the disastrous forces of 

nature, the injury or death of an employee may be compensated as 

a risk of the employment. The applicable test seems to be not 

whether the injury was caused by an act of God, but whether the 

employment collaborated in causing the injury or death.” 
 -6-

Id. at 134-35, 583 S.E.2d at 59 (quoting Elmer H. Blair, Reference Guide to Workmen’s 

Compensation § 9.02 (1974)) (emphasis added). 

 In Lucas, the employee, a driver for Federal Express, was struck by lightning while she 

sat in her delivery truck with her left hand on the truck’s metal steering wheel and with her right 

hand inserting the key into the truck’s ignition. Id. at 132, 583 S.E.2d at 57-58. Lucas testified 

that the truck was made almost entirely of metal and contained an antenna, computer equipment, 

and a CB radio. Id. at 132 n.1, 583 S.E.2d at 58 n.1. The commission concluded no evidence 

established “‘she suffered an injury which arose from a heightened risk of her employment.’” Id.

at 133, 583 S.E.2d at 58. In affirming the denial of benefits, we noted that the record contained 

no evidence “relating how [the truck’s electrical and structural] characteristics caused [Lucas’s] 

injury by exposing her to a particular risk of injury from lightning not otherwise experienced by 

any other person in the same vicinity.” Id. at 136, 583 S.E.2d at 59-60. 

 In deciding Lucas, we discussed the Supreme Court’s holding in Scott County School 

Board v. Carter, 156 Va. 815, 159 S.E. 115 (1931). 41 Va. App. at 135-36, 583 S.E.2d at 59. 

Carter involved a teacher who was killed when a cyclone destroyed the schoolhouse in which she 

worked. 156 Va. at 816, 159 S.E. at 116. We noted the Supreme Court’s focus in Carter on the 

commission’s finding that the location of the schoolhouse “‘on an eminence on a plateau, at a 

point where the wind blew more continually than at other points,’” made the schoolhouse “‘more 

susceptible to[] the hazard of storms.’” Lucas, 41 Va. App. at 135, 583 S.E.2d at 59 (quoting 

Carter, 156 Va. at 817, 159 S.E. at 116). As a result, the Supreme Court held credible evidence 

supported the commission’s decision in favor of Carter, and it affirmed the award. 

 In the present case, while the commission expressly articulated a connection between the 

conditions of claimant’s employment and an increased risk of being struck by lightning, no 

evidence in the record supports this conclusion. No evidence suggests claimant’s use of the 
 -7-

computer or telephone created a “heightened risk of injury” beyond the general risk to anyone in 

a building during a storm. No testimony or other evidence indicates that claimant, while 

working at her station, was at a greater risk of being struck by lightning than the average person. 

 We find nothing that distinguishes Lucas from the instant case. Similar to Lucas, the 

claimant here was in close proximity to a computer. The evidence in Lucas included the 

additional factor that Lucas was sitting in a metal vehicle with an antenna. In denying her claim 

for compensation, the Lucas Court held: 

While Lucas provided testimony of the truck’s electrical and 

structural characteristics, there is no competent evidence relating 

how these characteristics caused her injury by exposing her to a 

particular risk of injury from lightning not otherwise experienced 

by any other person in the same vicinity. 

Absent competent testimony that the particular electrical or 

structural characteristics of the truck caused her injury, the 

commission was unable to determine that the injuries arose from 

her employment. 

Id. at 136, 583 S.E.2d at 59-60. Here, as in Lucas, no evidence indicates that the characteristics 

of claimant’s employment exposed her to a particular risk of injury not generally experienced by 

other people. Although she sat at a computer talking on the phone, nothing proves that this 

workplace “‘corroborated in causing the injury.’” Id. at 135, 583 S.E.2d at 59 (quoting Blair, 

§ 9.02). 

 “Factual findings of the commission that are supported by credible evidence are 

conclusive and binding upon this Court on appeal.” Southern Iron Works, Inc. v. Wallace, 16 

Va. App. 131, 134, 428 S.E.2d 32, 34 (1993). However, credibility of the evidence is not in 

issue here. It is uncontroverted that claimant was shocked by the lightning and was injured by 

the lightning. It is uncontroverted that claimant was on the switchboard when the accident 

occurred. Our inquiry is whether the commission had any evidence to support its conclusion that 

“use of . . . employer’s switchboard equipment during a thunderstorm[] brought into existence a 
 -8-

special or peculiar risk of electrical shock through a lightning strike.” Here, no evidence was 

presented that claimant was at an increased risk of being struck during a lightning storm due to 

her working conditions that day. Because no evidence supports the commission’s ruling on this 

point, we reverse. 

 Reversed.
 -9-

Elder, J., dissenting: 

 The majority concludes our recent holding in Lucas v. Federal Express Corp., 41 Va. 

130, 583 S.E.2d 56 (2003), compels the conclusion no evidence supports the commission’s 

finding that claimant’s employment placed her at a greater risk of being struck by lightning. I 

find Lucas distinguishable. In Lucas, the commission made no finding of causation. In 

claimant’s case, by contrast, the commission expressly found claimant’s frequent and sustained 

“use of . . . employer’s switchboard equipment during a thunderstorm[] brought into existence a 

special or peculiar risk of electrical shock through a lightning strike.” Thus, I respectfully 

dissent. 

 I would hold that “[c]ertain facts as to the operation of lightning have become matters of 

common knowledge, of which judicial notice may be taken.” Bauer’s Case, 49 N.E.2d 118, 120 

(Mass. 1943); see also, e.g., Truck Ins. Exch. v. Ind. Acc. Comm’n, 75 P.2d 884, 885-87 (Cal. 

Ct. App. 1946); Van Kirk v. Hume-Sinclair Coal Mining Co., 49 S.W.2d 631, 634-35 (Mo. Ct. 

App. 1932). “Judicial notice permits a court to determine the existence of a fact without formal 

evidence tending to support that fact.” Scafetta v. Arlington County, 13 Va. App. 646, 648, 414 

S.E.2d 438, 439, aff’d on reh’g, 14 Va. App. 834, 425 S.E.2d 807 (1992). “A trial court may 

take judicial notice of those facts that are either (1) so ‘generally known’ within the jurisdiction 

or (2) so ‘easily ascertainable’ by reference to reliable sources that reasonably informed people 

in the community would not regard them as reasonably subject to dispute.” Taylor v. 

Commonwealth, 28 Va. App. 1, 7-8, 502 S.E.2d 113, 116 (1998) (en banc) (citations omitted). 

While “the fact of judicial notice must appear from the record,” Sutherland v. 

Commonwealth, 6 Va. App. 378, 383, 368 S.E.2d 295, 298 (1988), “a trial court need not intone 

the words ‘judicial notice’ in order to notice a fact,” Dillard v. Commonwealth, 28 Va. App. 340, 

347, 504 S.E.2d 411, 414 (1998); see Taylor, 28 Va. App. at 7-8, 502 S.E.2d at 116. “The taking 
 - 10 -

of judicial notice is generally within the discretion of the trial court.” Ryan v. Commonwealth, 

219 Va. 439, 446, 247 S.E.2d 698, 703 (1978). 

 In Lucas, the employee, a delivery driver for Federal Express, was struck by lightning 

while she sat in the seat of her delivery truck with her left hand on the truck’s metal steering 

wheel and used her right hand to insert the key into the truck’s ignition. Id. at 132, 583 S.E.2d at 

57-58. Lucas testified that the truck was made almost entirely of metal and had an antenna, 

computer equipment and a CB radio. Id. at 132 n.1, 583 S.E.2d at 58 n.1. The deputy and 

commissioner concluded Lucas failed to establish “any heightened risk of injury that stemmed 

from [Lucas’s] employment as a delivery driver.” Id. at 133, 583 S.E.2d at 58. Absent such 

evidence, we held credible evidence supported the commission’s finding that Lucas failed to 

meet her burden of proof. Id. at 136, 583 S.E.2d at 60. 

 In deciding Lucas, 41 Va. App. at 135-36, 583 S.E.2d at 59, we discussed the Supreme 

Court’s holding in Scott County School Board v. Carter, 156 Va. 815, 159 S.E. 115 (1931). 

Carter involved a teacher who was killed when a cyclone destroyed the schoolhouse in which she 

worked. Id. at 816, 159 S.E. at 116. We noted the Supreme Court’s focus in Carter on the 

commission’s finding that the location of the schoolhouse “‘on an eminence on a plateau, at a 

point where the wind blew more continually than at other points,’” made the schoolhouse “‘more 

susceptible to[] the hazard of storms.’” Lucas, 41 Va. App. at 135, 583 S.E.2d at 59 (quoting 

Carter, 156 Va. at 817, 159 S.E. at 116 (emphases added)). In Carter, “the Supreme Court 

quoted or paraphrased these findings a total of four times, emphasizing that ‘these are the 

declared facts to which we must give credence’ and that, ‘these being the conditions which 

obtained at the time, we are bound to say the employment subjected [Carter] to greater exposure 

than were those persons generally in that locality.’” Lucas, 41 Va. App. at 135-36, 583 S.E.2d at 
 - 11 -

59 (quoting Carter, 156 Va. at 821, 159 S.E. at 117 (citation omitted)). As a result, the Court 

held credible evidence supported the commission’s decision, and it affirmed the award. 

In claimant’s case, like in Carter, and in contrast to Lucas, the commission expressly 

articulated a connection between the conditions of claimant’s employment and the force of 

nature that caused her injury, stating claimant’s frequent and sustained “use of . . . employer’s 

switchboard equipment during a thunderstorm[] brought into existence a special or peculiar risk 

of electrical shock through a lightning strike.” The commission noted claimant’s testimony that 

she heard a loud noise in the phone when the lightning struck; other evidence permitted a finding 

that claimant’s telephone call was disconnected and that her computer may have flickered, as 

well, lending support to the conclusion that claimant’s use of the switchboard and computer, 

required by her employment, heightened her risk of being struck by lightning. The deputy and 

commission expressly found credible the testimony of claimant and her co-worker. The fact that 

neither the switchboard phone nor the computer appeared to have sustained any damage from the 

lightning strike does not compel a different result. 

Because the commission expressly articulated a connection between the conditions of 

claimant’s employment and the force of nature that caused her injury -- a causal connection of a 

type which the Supreme Court has implicitly permitted the commission to take judicial notice, 

see Carter, 156 Va. at 817, 821, 159 S.E. at 116, 117; Lucas, 41 Va. App. at 135-36, 583 S.E.2d 

at 59 -- I would conclude credible evidence supports the commission’s award of benefits.