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Workers’ Comp Update: Asleep at the Wheel. On the Clock. But did the injury arise out of the employment?

It is common for claimants to request workers’ compensation benefits after being involved in motor vehicle accidents. As in all claims, the motor vehicle accident must “arise out of” the employment to be found compensable. Motor vehicle accidents that happen on public roadways may be found to arise out of the employment subject to the “actual risk test.” Mktg. Profiles, Inc. v. Hill, 17 Va. App. 431, 434-35, 437 S.E.2d 727, 729-730 (1993). Under the actual risk test, it is the claimant’s burden to prove that the accident arose from an actual risk caused by his presence on the street. Hill v. S. Tank Transp., Inc., 44 Va. App. 725, 730, 607 S.E.2d 730, 732 (2005). So what happens if a claimant is injured in a motor vehicle accident after falling asleep at the wheel? This question was recently considered by the Full Commission in Norris v. ETEC Mechanical Corporation, JCN: VA00001317384 (June 25, 2018), and by the Virginia Appellate Court in Norris v. Etec Mech. Corp., Record No. 1054-18-2 (Va. Ct. App. Dec. 26, 2018).

In Norris, the claimant, an electrician, was involved in a motor vehicle accident while driving home in a company vehicle at the end of the day. He was 200 yards from his home when he ran off the road and struck a tree. He suffered severe injuries to multiple body parts as a result of the accident. It was undisputed that the claimant ran off the road because he fell asleep at the wheel. It was also undisputed that he was in the course of his employment because the employer provided the means of transportation to and from his home. The claimant testified that he “dozed off” before the accident occurred and that he “got tired in the evenings, and sometimes more so than others.” He agreed that it had been a normal work week and he could not provide a reason as to why he fell asleep. He was doing physical work that day, but he did not describe his tasks as more strenuous than usual.

The Deputy Commissioner denied the claim, finding that the accident did not arise out of the employment because the evidence did not establish that there was anything unusual about the work that day that caused him to fall asleep at the wheel. The Full Commission affirmed the Deputy Commissioner in a 2-1 decision, finding that the Claimant did not prove a causal connection between his work conditions and falling asleep on the drive home. The majority relied upon the fact that the claimant did not offer any testimony or documentary evidence to support why he feel asleep in concluding the accident did not arise out of the employment. 

Interestingly, the majority also considered whether the “actual street-risk rule” supported a finding of compensability even though the claimant did not raise that argument. The actual-street risk rule provides that “if the employment occasions the employee’s use of the street, the risks of the street are the risks of the employment.” Mktg. Profiles, Inc., 17 Va. App. at 435, 437 S.E.2d at 730 (quoting 1 Arthur Larson, Workers’ Compensation Law § 9.40 (1993)). In this matter, the majority declined to interpret the rule so broadly that it would include an unexplained vehicular accident that occurred for an unknown reason. The claimant in this matter failed to prove how the hazards of the street caused his injuries, only that he was injured while on the street.

The dissenting Commissioner disagreed with the majority and opined that falling asleep at the wheel was a risk of the employment based upon the actual street-risk rule. He reasoned that because the claimant was driving a company vehicle when he fell asleep and hit a tree, the employment placed him in a position to be involved in a motor vehicle accident. He also considered a workers’ compensation case raising a similar issue from the New Hampshire Supreme Court which found that as a matter of law, a claimant’s employment was a substantial factor in falling asleep at the wheel. Appeal of Kelly, 167 N.H. 489, 114 A.3d 316 (2015). The Commissioner adopted the Kelly reasoning to find that when a claimant’s work places him in a position of operating a vehicle, failing to prove the cause of falling asleep should not determine whether the accident arose from the employment. He noted that in Virginia, the key focus is the relationship between the injury and the employment, not the injury and its cause. Liberty Mut. Ins. Corp. v. Herndon, 59 Va. App. 544, 560, 721 S.E.2d 32, 40 (2012). He also cited a number of cases where injured passengers were not required to prove the cause of the motor vehicle accident in Virginia, and thus argued that the majority opinion would create inconsistent opinions. Finally, he noted that an employee with an idiopathic condition that causes a motor vehicle accident during work related travel is entitled to compensation, even though it is unrelated to the work. Campbell v. Sentara Rehabilitation, Inc., VWC File No. 220-55-28 (Oct. 13, 2005). The dissenting Commissioner asserted that the majority’s opinion will lead to inconsistent results and therefore the claimant’s accident should have been found compensable.

On appeal the Virginia Court of Appeals upheld the Commission’s determination that the claimant’s accident did not arise out of his employment. Norris v. Etec Mech. Corp., Record No. 1054-18-2 (Va. Ct. App. Dec. 26, 2018). The Court agreed that the claimant failed to establish the requisite “critical link” or causal connection between the conditions of his work and falling asleep behind the wheel: While Norris’s accident occurred because Norris fell asleep behind the wheel, the record reflects that Norris denied knowing what caused him to fall asleep. Based upon this testimony and other evidence in the record, Norris failed to sustain his statutory burden of providing the “critical link” between his employment and the resulting injuries. It follows that neither the Commission nor this Court can indulge in an inference that Norris’s injuries arose out of his employment. The Court rejected the claimant’s “adoption of the Commission dissent that ‘[a]n employee should not be required to prove a work-related factor caused him to fall asleep while driving in the course of his employment.’” The Court emphasized that an injured employee retains the statutory burden of proving that his injury arose out of his employment, and here, the claimant failed as he “cannot show that the accident arose out of his employment because he failed to prove any nexus whatsoever between his employment and falling asleep behind the wheel beyond the fact that he was driving a company vehicle.” The Court rejected any application of the street risk doctrine to the case, and noted “[t]he evidence in the record does not explain how any hazards of the street caused Norris’s injuries, thereby eliminating the possibility of causes totally unrelated to the street risks of employment.” 

If you have questions or concerns regarding workers’ compensation issues we are happy to discuss them with you any time. You may contact Megan Wagner at or 804-377-1275 and Steve Setliff at or 804-377-1261.

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