Opinion
Record No. 1248-94-1
Decided: January 31, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Karen M. Rye, on brief), for appellant.
(Philip R. Trapani, City Attorney; Cynthia B. Hall, Assistant City Attorney, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Margot J. Williams contends that the Workers' Compensation Commission erred in finding that she failed to prove an injury by accident arising out of her employment. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.
"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). On appellate review, we construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
As of December 26, 1991, Williams had been employed by the City of Norfolk ("employer") as a social services worker for fifteen years. Her job required that she assist clients receiving aid to dependent children so that they might participate in training programs for jobs and education. At times, her job required that she visit various locations throughout the city. In December 1991, her office was located on the second floor of the Duke-Grace Building, which is adjacent to the central Social Services Building. The Duke-Grace Building was open to the general public from 8:30 a.m. to 5:00 p.m., Monday through Friday. In December 1991, there was no security guard present in the building nor was there any security equipment in use.
On December 26, 1991, Williams left the Duke-Grace Building and went to the central Social Services Building to drop off a purchase order. When she returned to the Duke-Grace Building, she entered the first floor lobby. As she was walking across the lobby towards the door to the stairwell, a young man approached her and said "good evening," to which she responded "good evening." Williams then entered the stairwell, which was enclosed by doors. When she got to the second step, she heard a door open, and then was attacked from behind and sexually assaulted. Williams promptly reported the assault to appropriate law enforcement authorities. As of the date of the hearing, Williams's assailant had not been apprehended. Williams did not know her assailant's identity and he was not a client of hers or her division.
The parties stipulated before the commission that a sexual battery occurred as defined in Code § 18.2-67.3.
Prior to her assault, Williams had noticed homeless persons loitering around the parking ramp near the Duke-Grace Building, but she had never noticed anyone loitering in the stairwell. She had never experienced any problems with threats, physical attacks, or sexual assaults by any of her clients. Williams was not aware of any other physical attacks or sexual assaults occurring in the Duke-Grace Building either before or after her assault.
Curtis R. McMillan, employer's Employment Services Supervisor in December 1991, and John C. Kownack, employer's Assistant Director for Administration, confirmed Williams's testimony that there had not been any other physical attacks or sexual assaults in the Duke-Grace Building either before or after Williams's assault. Kownack also stated that he reviewed the security needs of the Duke-Grace Building in the fall of 1991. After the review, he concluded that the building was not unsafe and that a security guard was not needed. The complaints Kownack received concerning the Duke-Grace Building related to client confrontations and irate clients.
At the time of the commission's decision, Code Sec. 65.2-301, in pertinent part, provided that an employee who is sexually assaulted in the course of employment and promptly reports the assault to law enforcement, shall be deemed to have suffered an injury by accident arising out of the employment, "where the nature of the employment substantially increases the risk of such assault."
In order to prove the requisite causal connection between an employee's sexual assault and the conditions under which the employer required the work to be performed, the evidence must show that the attack was directed against the claimant as an employee or because of the employment. See Carr v. City of Norfolk, 15 Va. App. 266, 269, 422 S.E.2d 417, 418 (1992). Moreover, the statutory presumption of Code Sec. 65.2-301 applies only when it appears that the nature of the employment substantially increased the risk of sexual assault. Id. at 269, 422 S.E.2d at 419.
In denying Williams's application, the commission found that [t]he record does not reflect that the nature of Williams'[s] job increased the risk of sexual assault nor that there was any connection between her job and the assault, but rather that the attack was personal in nature and not because of her employment. There was no evidence presented that because of the location of Williams'[s] office, she was more, or less, likely to be the victim of crime. Williams testified that she was not acquainted with her assailant and he was not a client. Williams admitted that she was unaware of any physical attacks occurring in the Duke-Grace Building either before or after her assault. This testimony was confirmed by the Service Programs Manager, Curtis McMillan.
We conclude that the sexual assault on Williams was a personal, random attack. The attack was not directed against Williams as an employee of the City of Norfolk. Thus, Williams has failed to meet her burden of proof of establishing that the nature of her employment substantially increased the risk of a sexual assault.
Credible evidence, including the testimony of Williams, McMillan, and Kownack, supports the commission's determination that the sexual assault perpetrated upon Williams by an unknown assailant was a personal, random attack and was not directed against her as an employee or because of her employment. This credible evidence also supports the commission's conclusion that Williams's employment as a social services worker did not substantially increase her risk of sexual assault. Because the commission's factual findings are supported by credible evidence, we are bound by the commission's determinations.
In her brief, Williams cited to Southland Corporation v. Gray, ___ Va. App. ___, 444 S.E.2d 19 (1994), as support for her position. However, Gray is distinguishable from this case. In Gray, a convenience store manager was robbed of her employer's money, while making a bank deposit for employer, at approximately 5:45 p.m. During the robbery, Gray offered her purse to the robber, but he declined, stating that the purse was not what he wanted. Prior to the robbery, Gray's employer instituted a policy that all bank deposits were to be made before 3:00 p.m. and never after 5:00 p.m. The reason for this policy was so that bank deposits could be made before dark and for the security of the employees. If an employee was required to make a bank deposit after 5:00 p.m., the supervisor was to instruct the person to be "extra careful." Id. at ___, 444 S.E.2d at 20-21. This Court held that Gray's assault arose out of her employment. In Gray, the employer's evidence proved that the employer believed the risk of robbery and assault was so unusual that it prohibited bank deposits from being made after 3:00 p.m. Thus, in Gray, the evidence proved that the claimant was exposed to risks not equally applicable to others, apart from their employment. Moreover, the evidence in Gray showed that the assailant had no interest in Gray's personal property but was only interested in the employer's property. Id. at ___, 444 S.E.2d at 21. In this case, there is no evidence that Williams's employment as a social services worker increased her risk of sexual assault or that she was assaulted because of her employment.
Williams's contention, in the alternative, that her claim is compensable under the "street risk doctrine" is without merit. Her injury did not occur on the street, and for reasons already stated herein, she failed to prove that her assault was causally related to her employment.
For the reasons stated, we hold that the commission properly concluded that Williams failed to establish that her injury arose out of her employment. Accordingly, we affirm the commission's decision.
Affirmed.