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					VIRGINIA:
IN THE WORKERS‟ COMPENSATION COMMISSION                                        04/14/09


ARTHUR CRAMMER PIERCE, Claimant
                                                                      Opinion by WILLIAMS
                                                                               Commissioner
v.                            VWC File No. 229-99-31


OWEN TRUCKING, LLC, Employer
ZURICH AMERICAN INSURANCE COMPANY, Insurer


Gregory O. Harbison, Esquire
For the Claimant.
(Priority Mail)


Charles F. Midkiff, Esquire
For the Defendants.
(Priority Mail)


       REVIEW before Commissioner Diamond, Commissioner Dudley, and Commissioner
Williams in Richmond, Virginia, on November 4, 2008.


       This case is before the Commission at the request of both parties for Review of the

Deputy Commissioner‟s February 28, 2008 Opinion finding the claimant‟s accident was

unexplained and therefore did not arise out of his employment. We AFFIRM.

       The claimant filed a claim on September 27, 2006, alleging a head/brain injury when he

fell from a dump truck on September 9, 2006. The claimant sought permanent disability,

payment of medical costs and temporary total disability benefits from September 9, 2006 and

continuing. The employer defended the claim on the ground that there was no injury by accident

arising out of the claimant‟s employment.
                                                                                    VWC File No. 229-99-31


       On March 11, 2008, claimant‟s counsel filed a Motion to Vacate the Deputy

Commissioner‟s February 28, 2008 Opinion. Counsel sought to recover death benefits on behalf

of Mrs. Pierce and requested application of the unexplained death presumption.1 By letter dated

March 12, 2008, the Deputy Commissioner denied the Motion and declined to issue an amended

Opinion, noting that case law clearly states that the death presumption does not apply where the

employee is not found dead at the scene of the accident but rather dies at some later time.

       A number of witnesses testified at the hearing and by deposition. We will briefly

summarize the testimony.

       Debra Gromelski, the claimant‟s sister-in-law, testified that she spoke with the claimant

on the afternoon of September 8, 2006. At this time, the claimant said he was assigned to drive

the worst truck on the lot, and that the truck had a mechanical problem which he needed to fix

before he could drive it again. Claire Pierce, the claimant‟s wife, informed Ms. Gromelski about

the accident on September 9, 2006. Ms. Gromelski observed the claimant that day after the

injury and did not notice any abrasions on his nose or hands, although his head was wrapped in

bandages.

       Ms. Gromelski was present when a speech therapist asked Mr. Pierce questions. When

the therapist asked the claimant if he had fallen from a helicopter, he appeared confused. She

then asked about him falling from a truck, and tears streamed down his face. Ms. Gromelski

testified that the speech therapist explained that she will ask patients a bizarre question and then

ask a question about something that actually happened.                    The patients‟ reactions to these

questions provide an indication of memory function. The therapist stated that Mr. Pierce was


       1
           Mr. Pierce died January 1, 2008, prior to issuance of the Deputy Commissioner‟s Opinion.


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                                                                          VWC File No. 229-99-31


very lucid that day. Ms. Gromelski testified that the claimant‟s condition, including his ability to

respond appropriately to questions, subsequently deteriorated.

        Ms. Gromelski also testified that the claimant was very safety conscious. She admitted

she was not present at the time of the accident.

        Lisa Pierce, the claimant‟s daughter, lived with her parents and talked with the claimant

on September 8, 2006. She testified that the claimant was upset about the poor condition of his

truck and a problem with the tarp bar sticking, and that he understood from the mechanics that

repairs were part of his job. He also said he was going to have to talk to Russell Weiser,

manager for the employer, about it. Ms. Pierce testified that the claimant said he would have to

get up on the truck to work on the tarp bar, because it was illegal to drive the truck in its current

condition. Ms. Pierce stated that on the morning of September 9, 2006, the claimant again told

her that he was going to talk to Mr. Weiser about the poor condition of the truck and that he was

going to fix the tarp bar.

        Ms. Pierce testified that she and her mother learned about the accident from Mr. Weiser,

who found the claimant lying by the truck. At the hospital that day, Ms. Pierce did not notice

abrasions on her father‟s hands, but did notice that he had a bump on his nose. She understood

that he had broken his nose. Ms. Pierce also testified to her father‟s safety consciousness and

technical abilities. Ms. Pierce admitted she was not present at the time of the accident.

        David Patton, an independent tractor-trailer owner with up to 15 years of experience,

became friends with the claimant around 1994 and knew him as a “stickler for rules and

regulations.” Mr. Patton worked for Owen and Sparrow, now the employer, in 2003 or 2004 as a




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                                                                        VWC File No. 229-99-31


dump truck driver. The job entailed conducting pre-trip safety inspections, which included

making sure that the tarp bar was working. Mr. Patton drove a truck model similar to Truck 210

that was driven by the claimant. Mr. Patton testified that at least once a day he was required to

climb the ladder at the truck bed and shovel off material in order to comply with weight

requirements. He testified in detail as to how he climbed the truck ladder and identified related

photographs.

       Mr. Patton testified that he talked to the claimant on September 8, 2006, about his

concern with the tarp bar and the spring-loaded tarp bar mechanism. Mr. Patton had experienced

a similar situation when he worked for the employer; however, it did not involve the same truck.

Mr. Patton admitted he was not present at the time of the accident.

       John Lennox, a deputy sheriff in Stafford County, responded to the accident shortly after

coming on duty at 5:30 a.m. on September 9, 2006. He observed the claimant lying on the

ground between two trucks. He stated that it was dark and, while the weather was clear, the

truck was wet. Deputy Lennox investigated the accident and concluded that foul play was not

involved.

       George Wright, an auto parts delivery driver, met the claimant when they worked

together at a bus company in 1999. They also worked together for the employer in 2002, 2003

and 2004. Mr. Wright testified that he drove Truck 210 for several months, and during that time

it had no mechanical problems. He testified that pre-trip inspections were mandatory, and he

described the truck in detail. Wright explained that in order to ascend the ladder, the driver

could step on a pony wheel and straddle the side of the ladder, or use steps leading to the cab and

then straddle the frame railing. He stated that the truck was dangerous when it was wet. He had



                                                4
                                                                       VWC File No. 229-99-31


previously slipped from Truck 210 but did not sustain any injuries. Wright described the

claimant as very safety conscious. He testified that he did not know how the claimant was

injured.

       Darlene Swink, a dump truck driver for the employer, testified that she was training a

new employee, Patricia Nelson, on the morning of September 9, 2006. It was dark and damp.

The parking lot lights were on. She said good morning to the claimant and then began checking

fluids on her truck. She and Ms. Nelson were unable to find the coolant they needed so they

went to ask the claimant for assistance. Ms. Swink noticed that the hood on the claimant‟s truck

was not up, that the engine was off but that the cab door was open. She testified that they found

the claimant on the ground between two trucks, gasping. His feet were down toward the front of

the truck, close to the wheel.    Ms. Swink drew a picture of the claimant‟s location on a

photograph, Employer‟s Exhibit 1. Ms. Swink testified that she asked Ms. Nelson to call 911

and remained with the claimant, who was not talking. She did not notice any abrasions on the

claimant‟s hands or nose. Ms. Swink testified that she does not know what happened to the

claimant.

       Claire Pierce testified that she married the claimant in 1966. She stated that he was in

excellent health and was taking no medications before September 9, 2006. Mrs. Pierce testified

that her husband had returned to work for the employer on September 7, 2006, and had

complained about the condition of the truck. At approximately 6:15 or 6:30 a.m., the phone rang

and both she and her daughter picked up the telephones in their bedrooms. Mrs. Pierce testified

that Mr. Weiser said that her husband had “fallen somehow from the truck” and was being




                                               5
                                                                        VWC File No. 229-99-31


transported to MCV. Mrs. Pierce noticed that when she went to let out her dog, it was wet

outside.

       Mrs. Pierce testified that on the way to the hospital, her daughter told her about the tarp

bar problem. Mrs. Pierce, her daughter, and a friend, Diane Collins, arrived at MCV Hospital

between 8:30 and 9:00 a.m. Mrs. Pierce was taken right away to the claimant, who was in the

emergency room. Mrs. Pierce testified that at this time the claimant was able to squeeze her

hand. She did not notice any abrasions on his hands or face. When one of the nurses asked

about the fall, Mrs. Pierce told her that they thought he had climbed up on the tarp bar

mechanism.    Mrs. Pierce testified that after she made this statement, the claimant started

“frantically rubbing the palm of my hand with his thumb.” By the time of the hearing below, the

claimant was almost in a vegetative state and unable to respond; however, during that first day in

the hospital he was able to respond with his hands.

       Mrs. Pierce testified that on the afternoon of September 9, 2006, she went to the

employer‟s location and observed a man washing an area of the employer‟s premises. This man

did not know which truck had been involved in the accident. After the accident, Mrs. Pierce

periodically spoke with Mr. Weiser, who seemed remorseful and indicated that the claimant must

have slipped. Mrs. Pierce admitted that she was not present at the time of the accident.

       Mr. Wiley Collins, a friend of the Pierce family since 1968, went with his wife and

Mrs. Pierce to the employer‟s location at approximately 5:00 p.m. on September 9, 2006. He

observed that a wash company was there, and a man who did not speak English very well was

washing the trucks.




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                                                                                    VWC File No. 229-99-31


        Mr. Russell Weiser, manager for the employer, testified that the company‟s policies

require drivers to conduct a pre-trip inspection before leaving the yard in accordance with DOT

regulations. The drivers are required to clean asphalt from the bed using a backhoe. Mr. Weiser

testified that the drivers are not expected to climb up to the truck bed to clean it, although there

are no rules prohibiting it. He never saw a driver ascend the ladder of a truck bed, and he never

did that when he worked as a driver.2 Mr. Weiser also testified that there are 12-foot fiberglass

stepladders available for the drivers in the event they need to access a truck bed. There are also

spare trucks available if there is a problem with the assigned vehicle.

        Mr. Weiser testified that drivers are required to use the tarp properly and are responsible

for any damages resulting from improper procedures. He stated that DOT regulations do not

address checking tarp bars but that the company required it as part of a pre-trip inspection. He

later testified that the pre-trip inspection for most drivers does not amount to much. Mr. Weiser

denied that drivers are required to correct any problems with the tarp bar. He stated that if the

tarp bar is not functioning properly, the driver is to report it to a mechanic. The paperwork

associated with Truck 210 reflects that the tarp motor and switch were replaced on August 7,

2006. There is also a repair order for August 17, 2006.

        Mr. Weiser testified that the claimant was a good employee and a safety conscious driver.

He asked the claimant to drive Truck 210 until he could get a newer truck. Mr. Weiser denied

that the claimant voiced any complaint about Truck 210 on September 7, 2006 or September 8,

2006. He had known the claimant for several years by that point, and he would have expected


        2
          Mrs. Pierce testified on rebuttal that her husband often told her about large pieces of asphalt he had to
chip away manually from the truck bed as a requirement of his job in his earlier and most recent stints with the
employer.


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                                                                        VWC File No. 229-99-31


the claimant to report any problems with the truck to him. He also would have expected the

claimant to write down any such problems on the vehicle inspection report.

       Mr. Weiser could not explain why the last, undated vehicle inspection report for Truck

210 reflects 40 to 50 miles driven after the September 8, 2006 report. The next time Truck 210

left the yard was September 13, 2006. Mr. Weiser testified that a maintenance log reflects that a

roadside repair to the tarp bar was made on September 13, 2006.

       Mr. Weiser testified that it was dark, damp and foggy on the morning of the accident. He

did not notice any evidence of a break-in or other foul play. The claimant arrived at work “his

old jovial self” and checked the dispatch sheets before heading out the door. Mr. Weiser testified

that the claimant did not say anything about the truck. Within five to eight minutes, either

Ms. Swink or Ms. Nelson ran through the door “screaming that Art‟s laying out in the parking

lot, call 911.”   He asked a friend in the shop to call 911 and went to help the claimant.

Mr. Weiser had no recollection of seeing any abrasions on the claimant‟s hands. He also did not

recall offering any opinion as to the manner in which the claimant‟s injury occurred when he

called Mrs. Pierce and her daughter. He testified that he did not know how the claimant‟s injuries

occurred.

       Lee Peters, a deputy sheriff for Stafford County, testified that he is assigned to truck

safety. On September 13, 2006, he pulled over Truck 210, which was being driven by Patricia

Nelson, and issued a driver vehicle examination report for several violations – a broken rod at

the mid-section of the dump wagon that was dragging on the ground (the tarp bar) and defective

tailgate locks. These problems rendered the truck “out of service.”




                                                8
                                                                                      VWC File No. 229-99-31


         At her de bene esse deposition taken December 5, 2007, Patricia Nelson testified that she

had anticipated a problem with the tarp bar on September 13, 2006 as she thought it might break.

She had asked a co-worker if she should secure it with a bungee cord and was told that it was not

necessary. Ms. Nelson further testified that she was required to climb onto the trucks to add

coolant. When she drove Truck 210, she frequently had to climb up to fix problems with the

tarp. Ms. Nelson further testified that this truck drove poorly and had transmission problems.

She testified that the employer‟s trucks were in “pretty bad shape” mechanically. Regarding the

claimant‟s accident, Ms. Nelson testified that she did not see what caused it. She stated that it

was dark and foggy that morning. When she and Ms. Swink found the claimant lying beside the

truck, Ms. Nelson, who is also an EMT, checked his vitals. As she was assessing his condition,

the claimant was face up with blood draining from his left ear.

         Dr. Richard Kent, Ph.D., a mechanical engineer focusing on injury biomechanics and an

assistant professor at the Center for Applied Biomechanics at the University of Virginia, testified

as an expert witness. He reviewed various materials relating to the case, including photographs

and video of the truck, medical reports among which was the CT scan taken the day of the fall,

and Jon Bready‟s photogrammetry3 analysis which located the pool of blood relative to the truck.

         Dr. Kent prepared an injury causation analysis. He testified that the nature of the injuries

was consistent with one hard impact on the back of the skull resulting from a fall from a height.

The brain continued moving as the skull stopped at the ground, and then bounced back, causing


         3
          According to Dr. Kent, photogrammetry is the study of taking two dimensional images from a photograph
and turning them into three dimensional coordinates. Jon Bready, a mechanical engineer specializing in accident
reconstruction, testified at his deposition that he used a computer program to perform the analysis of the photograph.
He also reviewed file materials and obtained measurements of a similar make and model as Truck 210. Bready
opined that the claimant fell and struck his head on the ground. The employer objected to this testimony.


                                                          9
                                                                         VWC File No. 229-99-31


the frontal contusions. However, Dr. Kent opined that the nasal injuries were caused by a blow

to the nose by something else small, hard, and smooth, “[s]ort of the equivalent of being punched

really hard in the nose.” Dr. Kent believes that something on the truck caused the nasal injury,

which stunned the claimant, causing him to fall backwards. Dr. Kent testified that the lack of

facial abrasions or swelling, and the lack of any indication of a second ground contact, supports

his conclusion. He testified to several parts of the truck that could have caused the blow.

       Dr. Kent did not know the claimant‟s location immediately before the fall or the height

from which the claimant fell. He also did not know the position of the claimant‟s feet on the

ground after the fall. He testified that he looked at witness drawings, but that these were “pretty

imprecise.” He did not visit the accident scene. Dr. Kent supposed that it was possible that a

blow from a frying pan or other very hard surface could cause a similar pattern of injury, but he

did not know if anyone could swing a pan with the necessary force.

       The medical file in this case is voluminous. The records describe the claimant as a

64-year-old man found unresponsive or with loss of consciousness after having either fallen from

the back of a “pick-up truck” or “semi-truck” or having been ejected from a vehicle.

       The claimant came under the care of neurosurgeons Dr. Ross Bullock and Dr. John D.

Ward at the Medical College of Virginia and underwent a craniotomy. The initial head CT

revealed multiple skull fractures, sinus fracture, and head trauma with hemorrhage and swelling.

       Upon considering the nature of the injuries, on October 27, 2006, Dr. Bullock opined that

the claimant fell from a “significant height.” Dr. Bullock additionally noted that he had been

told the claimant slipped from a dump truck “therefore high off the ground.” In a statement




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                                                                        VWC File No. 229-99-31


dated September 17, 2007, Dr. Ward opined that the claimant fell at “a distance greater than

6 feet off the ground.”

       First, we must address the defendants‟ objections to most of the witness testimony on the

grounds that such testimony was irrelevant and constituted impermissible hearsay, and that

certain expert testimony offered by the claimant would not assist the trier of fact and thus should

be excluded. The Deputy Commissioner held that given the unavailability of the claimant and

the necessity of relying upon circumstantial evidence, she would allow testimony from the

witnesses and determine what was relevant.      On Review, the defendants continue to object to

this testimony. We make no specific ruling on the admissibility of the testimony because we

find that even if we consider the evidence presented through these witnesses, the claimant cannot

meet the requisite burden of proving a compensable injury.

       We further note that we agree with the Deputy Commissioner‟s denial of the claimant‟s

Motion to Vacate based upon the application of the unexplained death presumption.              The

claimant is not entitled to the unexplained death presumption recognized in Southern Motor

Lines Co. v. Alvis, 200 Va. 168, 104 S.E.2d 735 (1958), because he was alive when found at the

accident scene. The presumption applies when an employee is “„found dead . . . at his place of

work‟ and the circumstances of death are unexplained. The presumption does not apply . . .

[where the employee] was not found dead at his place of work, but rather suffered injuries in an

unexplained accident that later proved to be fatal.” K & G Abatement Co. v. Keil, 38 Va.

App. 744, 757, 568 S.E.2d 416, 422 (2002); see also Fortune v. Broaddus Farms, Inc., VWC File

No. 210-05-27 (Apr. 26, 2004) (finding that the death presumption did not apply when employee




                                                11
                                                                         VWC File No. 229-99-31


was found alive after a motor vehicle accident but died at the accident scene 35 minutes after a

trooper arrived).

       Because the presumption does not apply, this claim is subject to the actual risk doctrine.

Pinkerton‟s, Inc. v. Helmes, 242 Va. 378, 381, 410 S.E.2d 646, 648 (1991). Under the actual

risk doctrine, it is the claimant‟s burden to prove that “a condition of the workplace either caused

or contributed to” his accident. Southside Va. Training Ctr. v. Shell, 20 Va. App. 199, 202,

455 S.E.2d 761, 763 (1995). In certain cases in which an employee is unable to specifically relate

the cause or mechanism of his fall, we may infer from the facts presented that a work-related risk

caused the injury. See, e.g., Basement Waterproofing & Drainage v. Beland, 43 Va. App. 352,

597 S.E.2d 286 (2004). However, we cannot base an award upon conjecture or speculation.

Centr. State Hosp. v. Wiggers, 230 Va. 157, 159, 335 S.E.2d 257, 258 (1985).

       In this case, after careful consideration, we find the evidence insufficient to support a

reasonable inference that the claimant‟s accident, injury and subsequent death resulted from a

risk or hazard of his employment. There were no eyewitnesses to the accident, and the claimant

was unable to explain the manner in which the accident occurred. Although there was a problem

with the tarp bar, we cannot determine whether this or any other defective equipment on the

truck played any causative role in the accident.

       We do not believe that the claimant becoming tearful in response to questioning by the

speech therapist or rubbing his wife‟s hand when she was speaking with one of the nurses

provides a sufficient evidentiary basis to infer that the claimant fell while repairing, or

attempting to repair, the tarp bar. We also find that the expert testimony from the claimant‟s

treating physicians as well as from Dr. Kent and Mr. Bready fails to establish the cause of the



                                                   12
                                                                         VWC File No. 229-99-31


claimant‟s fall or that it arose from a risk of his employment. We further find that the testimony

relating to the claimant‟s intent or duty to repair the tarp bar does not establish that he was

engaged in this activity at the time of his injury. The evidence relating to the claimant‟s

dedication to safety and the generally poor condition of the truck we similarly find not probative

as to the cause or mechanism of the claimant‟s accident and injury.

       Contrary to the claimant‟s representations on Review that “Mr. Pierce was balancing [on

the driver‟s side ladder] to address the tarp bar malfunction,” (Claimant W.S. at 11) and that

“Mr. Pierce slipped and fell a significant distance from a slick metal ladder,” (Claimant W.S. at

14), there is no evidence indicating what the claimant was doing immediately before his accident

or that he was on the ladder at that or any other time that morning.

       If anything, the evidence suggests that it is more likely that the claimant fell from the cab

of the truck than from the ladder of the truck. The cab door was found open and some items

belonging to the claimant were found inside the truck. Specifically, the claimant‟s McDonald‟s

bag containing breakfast food and his ticket book were on the driver‟s seat and his lunch box was

on the passenger floor board. The position of the claimant‟s body also supports this theory. The

witnesses testified that the claimant‟s feet were down toward the front of the truck, close to the

wheel, and his head was closer to the bed of the truck, which suggests a fall from the cab more

than a fall from the ladder of the truck.

       The most we can infer from the testimony and the medical opinions is that the claimant

fell from the truck, although this itself borders upon speculation. In any event, without sufficient

evidence to even establish the part of the truck from which the claimant fell, it is impossible to




                                                13
                                                                        VWC File No. 229-99-31


determine what caused the fall, and whether that cause arose out of a risk connected with his

employment. See Pinkerton‟s, Inc. v. Helmes, 242 Va. 378, 381, 410 S.E.2d 646, 648 (1991).

       The claimant points to several cases where claims were found compensable despite the

claimants‟ inability to recall the circumstances surrounding the accidents, including two recent

cases from the Court of Appeals, City of Waynesboro v. Griffin, 51 Va. App. 308, 657 S.E.2d

782 (2008), and Turf Care, Inc. v. Henson, 51 Va. App. 318, 657 S.E.2d 787 (2008).

       In Griffin, the claimant was able to relate his activities involving a front-end loader that

occurred prior to the accident, and he recalled placing his left foot on a step outside the loader.

He brought his right foot down, but did not remember falling. The Court of Appeals held that

the Commission could reasonably infer that the claimant was exposed to a risk of the

employment, namely, an awkward motion to exit a cab and descend from a considerable height

on a worn, rusted step. Griffin, 51 Va. App. at 315-16, 657 S.E.2d at 785-86.

       In Henson, the facts established that the claimant fell from a 40-foot extension ladder

while cleaning gutters at a home. A co-worker who was also assigned to cleaning gutters

observed and was able to testify to the claimant‟s activity of cleaning leaves while up on the

ladder. The Court of Appeals found that the Commission could reasonably infer that the

claimant was in a dangerous position on the ladder and reached to his right to remove leaves and

debris from the gutters, which prevented him from holding onto the ladder with both hands, and

that as a result he lost his balance and fell. The Court added that ladders, “in and of themselves,

are dangerous,” and took note of the eyewitness testimony. Henson, 51 Va. App. at 326,

657 S.E.2d at 791.




                                                14
                                                                           VWC File No. 229-99-31


        Unlike the situations in the cases cited above, in the instant case, there is no testimony

describing the claimant‟s activities immediately before his accident. There is no testimony that

places him on a ladder or at any particular place on the truck.             There is not sufficient

circumstantial evidence to allow any reasonable inference that the claimant‟s fall, if in fact he

fell, arose out of a risk of his employment.

        Were we to infer that the claimant did fall from the truck, PYA/Monarch & Reliance Ins.

Co. v. Harris, 22 Va. App. 215, 468 S.E.2d 688 (1996), supports our finding that the claimant‟s

claim is not compensable.       In PYA/Monarch, the claimant, a truck driver, was unable to

remember what caused him to fall from his truck onto the pavement seven feet below. He

recalled that the grab bar and the steps were icy, but the last thing he could remember was

reaching for the grab bar. The Court of Appeals held that this evidence did not provide the

requisite causal nexus between the employment and the fall, and that such nexus could not be

inferred, stating:

            The mere fact that the truck cab was icy or that the cab was seven feet from
            the ground is insufficient to establish the basis for the fall. Claimant could not
            recall any details of the accident, and the last thing he remembered was
            reaching for the grab bar on the side of the truck cab.

Id. at 22 Va. App. at 224, 468 S.E.2d at 692.

        At the November 4, 2008 Review Hearing, claimant‟s counsel submitted a supplemental

designation of legal authority that included Hampton Holiday Inn v. Pearson, No. 2978-07-1,

2008 Va. App. LEXIS 299 (Va. Ct. App. June 24, 2008), Budnick v. Waverly, VWC File No.

223-47-49 (Oct. 24, 2008), and Fleming v. Hall Bros. Elec. Contractors, VWC File No.

237-51-05 (July 30, 2008), to support this claim. Fleming, which we affirmed by Opinion dated




                                                 15
                                                                          VWC File No. 229-99-31


January 29, 2009, did not involve an unexplained fall. In Pearson, the claimant testified that she

fell when she was stepping from a dimly lit hallway into the dark night and from the interior

flooring of a hotel onto concrete. In Budnick, the claimant testified that he hit a pothole just

before his accident. Both of these cases are distinguishable from the case at hand as in those

cases there was sufficient evidence establishing the events which occurred immediately before

the accident to permit a finding that the injuries occurred as the result of an employment-related

risk. In the present case, the claimant was not able to report the events immediately before his

accident nor is there sufficient circumstantial evidence which would allow us to infer the specific

activities in which the claimant was engaged at the time of his injury, much less that these

activities subjected the claimant to a risk of his employment which then caused his injury.

       The circumstances surrounding the claimant‟s injury and death are tragic, and we are

certainly sympathetic to the loss his family members have experienced. We are also mindful of

the difficulties which were faced in obtaining and introducing sufficient evidence to support this

claim. However, we cannot allow these considerations to affect our application of

well-established law to the evidence before us. Therefore, we must conclude, as we have under

similar circumstances, that “it would be purely speculative to infer that the only rationale [for the

accident] was a workplace risk.” Puckett v. Va. Dept. of Transp., VWC File No. 220-01-86

(July 11, 2006).    As the evidence fails to demonstrate that the accident arose out of the

claimant‟s employment, the Opinion denying this claim is AFFIRMED.

       This matter is hereby removed from the Review docket.




                                                 16
                                                                        VWC File No. 229-99-31


DIAMOND, COMMISSIONER, Dissenting:

       I respectfully dissent from the Majority‟s finding that there is insufficient evidence to

infer that the claimant‟s injury is connected to a risk of his employment. The claimant‟s burden

of explaining the accident is met by the expert testimony and medical records.

       The record establishes that according to a co-worker who greeted Mr. Pierce on the

morning of the accident, it was dark and the truck was damp. There is no dispute that Mr. Pierce

was in the course of his employment in a place he was expected to be. The medical records

reflect that he fell from a “significant height.”     The circumstances of the accident were

reconstructed by an expert witness.

       The claimant‟s expert witness, Richard Kent, has a PhD with a specialty in injury

biomechanics. He is on the faculty of the University of Virginia where he performs injury

biomechanics research. He has experience in accident reconstruction, and he has been retained

as an expert witness on numerous occasions for insurance companies and car manufacturers. To

render an opinion in this case, Dr. Kent reviewed photographs of the vehicle and similar

vehicles, of the accident scene, and of the decedent. He reviewed all of the medical records,

including CT scans.      He also reviewed material from Dr. John Brady, who performed

photogrammetric analysis of the accident scene to locate the blood relative to the truck and to the

various landmarks on the truck. According to Dr. Kent, Dr. Brady‟s analysis provided support

and confirmation of his own conclusions. Dr. Kent produced a power point presentation

explaining how each of the decedent‟s injuries was likely sustained.

       Dr. Kent concluded that Mr. Pierce hit his nose on something on the truck and then fell

backwards onto the concrete. He stated, “The truck is the only reasonable source of this nasal



                                                17
                                                                          VWC File No. 229-99-31


injury.” He continued, “Mr. Pierce took a blow to his nose . . . something in the neighborhood of

70 to 100 pounds . . . I believe that occurred due to an interaction with the truck, and as a result

of being stunned by that impact, Mr. Pierce fell backwards, and this was a free fall.” Dr. Kent

stated that he could not say exactly what on the truck hit Mr. Pierce‟s nose, nor could he say

exactly where on the truck he was when he fell backwards. He noted that “the location of the

blood is roughly his body height from several candidate locations on the truck that he could have

fallen from.” All of Dr. Kent‟s conclusions were within a reasonable degree of scientific

probability. On cross examination, Dr. Kent reiterated that the pattern of injury including the

location of the body and the blood is “inconsistent with any other realistic scenario...” The most

logical explanation according to Dr. Kent is that Mr. Pierce slipped due to the dampness of the

truck, banging his nose on the truck, and then falling backwards onto the concrete.

       I do not agree with the majority that Dr. Kent‟s conclusions are speculation. They are

logical inferences from the evidence. Moreover, the claimant‟s burden in this case is a mere

preponderance. This is a workers‟ compensation claim, not a murder case requiring proof

beyond a reasonable doubt.

       I therefore find that this accident has been sufficiently explained. Mr. Pierce was

somewhere on his truck when he struck his nose, causing him to fall backward onto the

pavement resulting in his death.

       I also take this opportunity to respectfully ask the Court to revisit its holding in

PYA/Monarch & Reliance Ins. Co. v. Harris, 22 Va. App. 215, 468 S.E.2d 688 (1996), which

reversed the longstanding rule that injuries resulting from the added risk of height arise out of the

employment. See Southland Corp. v. Parson, 1 Va. App. 281, 284-85, 338 S.E.2d 162, 164



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                                                                           VWC File No. 229-99-31


(1985). In PYA/Monarch, the claimant fell out of his truck‟s cab while reaching for the grab bar

to exit his truck. The surface of the truck‟s cab was covered with ice at the time. The claimant

lost consciousness and could not remember what happened. The medical evidence stated that the

fall was caused by one of four reasons: a cardiac irregularity; a decrease in blood glucose;

dizziness; or by slipping while he exited the truck. The Commission awarded the claim but the

Court reversed. The Court reasoned thus: If the claimant fell because of a cardiac irregularity, a

decrease in blood glucose, or dizziness, the accident is compensable as an idiopathic fall. If the

claimant fell because he slipped due to the icy cab, the accident is compensable. However

because we cannot determine which of these caused the fall, it is not compensable. In other

words, the claimant‟s accident was due to one of four reasons. Any one of those reasons is

compensable. Because the claimant could not establish which of the four compensable causes

existed, the Court created the doctrine of the non-compensable “unexplained” fall. This doctrine

is not consistent with the remedial purpose of the Act, and should be re-examined, particularly in

circumstances such as this where a brain injury renders the claimant unable to remember why he

fell. The height itself is an added risk that is the link to the employment.

                                              APPEAL

       This Opinion shall be final unless appealed to the Virginia Court of Appeals within

30 days of receipt.


cc:    Estate of Arthur Crammer Pierce
       Owen Trucking, LLC
       Zurich American Insurance Company




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