Darden v. Carilion Clinic: What Injuries “Arise Out of” Employment?
A recent opinion issued by the Virginia Workers’ Compensation Commission adds another wrinkle to the ever-evolving case law regarding whether an injury “arises out of” a claimant’s employment.
In Darden v. Carilion Clinic, the claimant’s position as director of the Carilion Clinic’s neurosurgery research department required her to meet frequently with physicians and other hospital administrators in casual settings off of the hospital’s campus. The claimant was on her way to one of these off-site meetings — at a restaurant — when she parked across the street in the closest available spot and proceeded on foot to the meeting. She fell into a pothole while crossing the street, suffering injuries. Her claim for benefits followed. The Deputy Commissioner held that her injuries did not “arise out of” employment because her risk of stepping in the pothole was no greater due to her employment than it was for any member of the general public.
On review, the full Commission addressed this supposed precondition that the injury’s causative danger cannot be an equal risk for the general public. Specifically, two cases seemed to offer competing analyses on this issue:
- Lucas v. Lucas, 212 Va. 561 (1972): Requiring that for an injury to arise out of employment, the employment must expose the employee to that danger causing injury, whether the public is similarly exposed or not.
- Simms v. Ruby Tuesday, Inc., 281 Va. 114 (2011): Holding that an injury is not compensable if the danger causing the injury is one “common to the neighborhood.”
These seemingly incompatible holdings were addressed in Liberty Mutual Insurance Corp. v. Herndon, 59 Va. App. 544 (2012): Determining whether the causative danger of the injury is common to the public is not conclusive in determining compensability; rather, the question is whether the injury had its origin in a risk connected to employment and flowed from such risk.
The Commission in Darden considered this case law and held that the question of whether an injury is common to the public is simply one element of the “arising out of” analysis. This is because there are risks common enough to the neighborhood that cannot be fairly traced to employment. The question is, did employment expose the claimant to this danger such that the injury flowed from said causative risk?
Therefore, in Darden, the claimant’s fall into the pothole was an injury which arose out of employment because it flowed directly from a risk present due to her on-the-job duties. This seems to be a departure from the “common to the neighborhood” doctrine that has been followed for years by the VWC in a stricter sense. We will monitor this case to see if it is appealed, but this does not appear to be a favorable direction that the Commission is taking.