VIRGINIA by forrests




Opinion by DIAMOND Commissioner

HOLIDAY INN, Employer NATIONAL SURETY CORP., Insurer Peter M. Sweeny, Esquire 1400 Thunderbolt Place, Suite B-1 Chantilly, Virginia 20151 for the Claimant. Daniel E. Lynch, Esquire WILLIAMS & LYNCH 2807 N. Parham Road, Suite 201 Richmond, Virginia 23294 for the Defendants. REVIEW on the record before Commissioner Dudley, Commissioner Tarr, and Commissioner Diamond at Richmond, Virginia. The claimant has sought Review of Deputy Commissioner Roach’s February 26, 2002 Opinion, denying his claim for failure to prove that his accidental injuries arose out of a risk of employment. For the reasons that follow, we REVERSE. The claimant submitted a Claim for Benefits form on July 30, 2001, alleging that he suffered a “split disc in lower back,” after a fall at work on October 13, 2000. As subsequently amended, his claim was for temporary total disability benefits between September 26, 2001 and January 27, 2002, as well as lifetime payment of medical expenses causally related to his accidental injury. The employer denied the claim asserting, inter alia, that the claimant’s accident did not arise out of, or in the course of his work for the employer. The claimant, a seventy-two year old retiree, testified that he worked for the hotel employer in October 2000 as a van driver and errand-runner. He worked forty hours a week,

VWC File No. 206-22-38 describing the work as: “more or less a filler job.” He explained that it was his job to carry and move guest luggage, drive guests to and from the airport, and make runs to the bank or post office. He explained that it was his practice, and the employer’s policy, for him to help guests with their luggage, without regard to whether they were using the employer’s van service. The claimant testified that he was working for the employer on October 13, 2000, when he noticed an elderly couple in the employer’s lobby sitting “with a huge pile of luggage.” He stated that the couple was not using the van service, but he approached them to ask whether he could assist with their luggage. He explained what happened then as follows: And as I approached, a dog laying at the right end of the luggage, as I was facing it, jumped at me. I backed up and he hit me in the chest and I shoved him off and I fell backwards in[to] the lobby floor. He described the floor as being made of tile, and stated that he hit his tailbone, his left hip, his left shoulder and his head in the fall. He stated that he felt pain everywhere he hit the floor, but got up, dusted himself off and returned to work. He reported the incident to the employer. He testified that the dog belonged to the elderly couple. On this evidence, the Deputy Commissioner denied the claimant’s claim for failure to prove that his accident arose out of a risk of employment. We disagree. The burden rests on the claimant to prove that he suffered an injury by accident that arose out of and in the course of his employment. County of Chesterfield v. Johnson, 237 Va. 180, 376 S.E.2d 73 (1989). The claimant’s evidence must establish an employment hazard that produced the injury. Id. The “actual risk” test “requires that the employment subject the employee to the particular danger that brought about his or her injury.” Lipsey v. Case, 248 Va. 59, 61, 445 S.E.2d 105, 106 (1994) (citations omitted).


VWC File No. 206-22-38 We find that the injury was causally related to the employment. Hotel guests in the hotel lobby were in need of assistance with their luggage. In addition to their luggage, they also had a dog. It was the claimant’s job to assist these hotel guests. By condoning the presence of the dog, the employer created the conditions that led to the injury. As the claimant pointed out, being knocked down by a dog belonging to hotel guests is not distinguishable from an accident caused by a rambunctious child or a falling piece of luggage. This case is distinguishable from cases involving dog attacks where the dog is completely independent of the employer and simply happens to be in the vicinity, e.g. Lipsey, supra; Argenbright v. Custom Painting, Inc., VWC File No. 202-33-09 (August 1, 2001). Accordingly, the Deputy Commissioner’s February 26, 2002 Opinion, finding that the claimant failed to prove that his injury arose out of his employment, is REVERSED. This matter is REMANDED to the Deputy Commissioner for consideration of the remaining defenses raised by the employer. This matter is ordered REMOVED from the Review Docket. APPEAL

This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty (30) days of receipt.


Cecil Rhodes 17301 Pickwick Drive Purcellville, Virginia 20132 Claimant. (Copy sent Certified Mail) Holiday Inn 1500 E. Market Street Leesburg, Virginia 20172 Employer.


VWC File No. 206-22-38

National Surety Corp. 9690 Deerco Road, 5th Floor Timonium, Maryland 21093 Insurer. (Copy sent Certified Mail)


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