compensability test in Virginia

2015The de facto award doctrine applies only when “the employer has stipulated to the compensability of the claim, has made payments to the employee for some significant period of time without filing a memorandum of agreement, and fails to contest the compensability of the injury . . . .” Id. (emphasis omitted) (quoting Gowan, 32 Va. App. at 463 , 528 S.E.2d at 722 ).

2013In Ryan’s Family Steak Houses, Inc. v. Gowan, 32 Va.App. 459 , 528 S.E.2d 720 (2000), we reiterated our holding from National Linen Serv. v. McGuinn, 5 Va.App. 265, 269-70 , 362 S.E.2d 187, 189 (1987) (en banc) as follows: [W]here the employer has stipulated to the compensability of the claim, has made payments to the employee for some period of time without filing a memorandum of agreement, and fails to contest the compensability of the injury, it is “reasonable to infer that the parties ha[ve] reached an agreement as to the payment of compensation,” and a de facto award will be recognized.

2021Roske, 62 Va. App. at 520-21 (first quoting Lysable Transport, Inc. v. Patton, 57 Va. App. 408, 414 (2010); then quoting National Linen Service v. McGuinn, 5 Va. App. 265, 270 (1987) (en banc)). [W]hen “the employer has stipulated to the compensability of the claim, has made payments to the employee for some significant period of time without filing a memorandum of agreement, and fails to contest the compensability of the injury,” . . . it is “reasonable to infer that the parties have reached an agreement” regarding compensability of the claim.

2013In Ryan’s Family Steak Houses, Inc. v. Gowan, 32 Va.App. 459 , 528 S.E.2d 720 (2000), we reiterated our holding from National Linen Serv. v. McGuinn, 5 Va.App. 265, 269-70 , 362 S.E.2d 187, 189 (1987) (en banc) as follows: [W]here the employer has stipulated to the compensability of the claim, has made payments to the employee for some period of time without filing a memorandum of agreement, and fails to contest the compensability of the injury, it is “reasonable to infer that the parties ha[ve] reached an agreement as to the payment of compensation,” and a de facto award will be recognized.

2016“To satisfy the ‘arising out of’ prong of the compensability test, [employee] had to prove that ‘there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.’” Marketing Profiles, 17 Va. App. at 434 , 437 S.E.2d at 729 (quoting Bradshaw, 170 Va. at 335 , 196 S.E. at 686 ).

2016“To satisfy the ‘arising out of’ prong of the compensability test, [employee] had to prove that ‘there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.’” Marketing Profiles, 17 Va. App. at 434 , 437 S.E.2d at 729 (quoting Bradshaw, 170 Va. at 335 , 196 S.E. at 686 ).

2016“To satisfy the ‘arising out of’ prong of the compensability test, [employee] had to prove that ‘there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.’” Marketing Profiles, 17 Va. App. at 434 , 437 S.E.2d at 729 (quoting Bradshaw, 170 Va. at 335 , 196 S.E. at 686 ).

2016“To satisfy the ‘arising out of’ prong of the compensability test, [employee] had to prove that ‘there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.’” Marketing Profiles, 17 Va. App. at 434 , 437 S.E.2d at 729 (quoting Bradshaw, 170 Va. at 335 , 196 S.E. at 686 ).

2005But [the arising out of test] excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment.” Grove v. Allied Signal, Inc., 15 Va. App. 17, 19-20 , 421 S.E.2d 32, 34 (1992) (quoting R & T Investments, Ltd. v. Johns, 228 Va. 249, 252-53 , 321 S.E.2d 287, 289 (1984)).

2005But [the arising out of test] excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment.” Grove v. Allied Signal, Inc., 15 Va. App. 17, 19-20 , 421 S.E.2d 32, 34 (1992) (quoting R & T Investments, Ltd. v. Johns, 228 Va. 249, 252-53 , 321 S.E.2d 287, 289 (1984)).

1997Co. v. Harris, 22 Va. App. 215 , 468 S.E.2d 688 (1996), we held: In cases in which the claimant alleges an * Pursuant to Code § 17-116.010 this opinion is not designated for publication. injury by accident resulting from an employment-related risk, "[a] 'critical link' must exist between the conditions of the workplace and the injury in order for the injury to qualify as 'arising out of' the employment." In proving the "arising out of" prong of the compensability test, a claimant has the burden of showing that "'there is apparent to the rational mind upon consideration of all the circumstances

1997Co. v. Harris, 22 Va. App. 215 , 468 S.E.2d 688 (1996), we held: In cases in which the claimant alleges an * Pursuant to Code § 17-116.010 this opinion is not designated for publication. injury by accident resulting from an employment-related risk, "[a] 'critical link' must exist between the conditions of the workplace and the injury in order for the injury to qualify as 'arising out of' the employment." In proving the "arising out of" prong of the compensability test, a claimant has the burden of showing that "'there is apparent to the rational mind upon consideration of all the circumstances

2005But [the arising out of test] excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment.” Grove v. Allied Signal, Inc., 15 Va. App. 17, 19-20 , 421 S.E.2d 32, 34 (1992) (quoting R & T Investments, Ltd. v. Johns, 228 Va. 249, 252-53 , 321 S.E.2d 287, 289 (1984)).

2005But [the arising out of test] excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment.” Grove v. Allied Signal, Inc., 15 Va. App. 17, 19-20 , 421 S.E.2d 32, 34 (1992) (quoting R & T Investments, Ltd. v. Johns, 228 Va. 249, 252-53 , 321 S.E.2d 287, 289 (1984)).

2020It simply helps prove the ‘in the course of’ prong of the compensability test.” Johnson, 237 Va. at 185 .

2012It simply helps prove the ‘in the course of prong of the compensability test.” Johnson, 237 Va. at 185 , 376 S.E.2d at 76 .

2021Roske, 62 Va. App. at 520-21 (first quoting Lysable Transport, Inc. v. Patton, 57 Va. App. 408, 414 (2010); then quoting National Linen Service v. McGuinn, 5 Va. App. 265, 270 (1987) (en banc)). [W]hen “the employer has stipulated to the compensability of the claim, has made payments to the employee for some significant period of time without filing a memorandum of agreement, and fails to contest the compensability of the injury,” . . . it is “reasonable to infer that the parties have reached an agreement” regarding compensability of the claim.

2015The de facto award doctrine applies only when “the employer has stipulated to the compensability of the claim, has made payments to the employee for some significant period of time without filing a memorandum of agreement, and fails to contest the compensability of the injury . . . .” Id. (emphasis omitted) (quoting Gowan, 32 Va. App. at 463 , 528 S.E.2d at 722 ).

2014“In proving the ‘arising out of’ prong of the compensability test, a claimant has the burden of showing that ‘there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.’” PYA/Monarch, 22 Va. App. at 221-22 , 468 S.E.2d at 691 (quoting Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 434 , 437 S.E.2d 727, 729 (1993) (en banc)).

2014“In proving the ‘arising out of’ prong of the compensability test, a claimant has the burden of showing that ‘there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.’” PYA/Monarch, 22 Va. App. at 221-22 , 468 S.E.2d at 691 (quoting Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 434 , 437 S.E.2d 727, 729 (1993) (en banc)).

2021Roske, 62 Va. App. at 520-21 (first quoting Lysable Transport, Inc. v. Patton, 57 Va. App. 408, 414 (2010); then quoting National Linen Service v. McGuinn, 5 Va. App. 265, 270 (1987) (en banc)). [W]hen “the employer has stipulated to the compensability of the claim, has made payments to the employee for some significant period of time without filing a memorandum of agreement, and fails to contest the compensability of the injury,” . . . it is “reasonable to infer that the parties have reached an agreement” regarding compensability of the claim.

2016“Virginia follows the ‘actual risk’ doctrine which ‘excludes “an injury which comes from a hazard to which the employee would have been equally exposed apart from the employment.”’” Bernardo v. Carlson Cos. — TGIF, 60 Va. App. 400, 405 , 728 S.E.2d 508, 511 (2012) (quoting Taylor v. Mobil Corp., 248 Va. 101, 107 , 444 S.E.2d 705, 708 (1994)).

2016“Virginia follows the ‘actual risk’ doctrine which ‘excludes “an injury which comes from a hazard to which the employee would have been equally exposed apart from the employment.”’” Bernardo v. Carlson Cos. — TGIF, 60 Va. App. 400, 405 , 728 S.E.2d 508, 511 (2012) (quoting Taylor v. Mobil Corp., 248 Va. 101, 107 , 444 S.E.2d 705, 708 (1994)).

2016“Virginia follows the ‘actual risk’ doctrine which ‘excludes “an injury which comes from a hazard to which the employee would have been equally exposed apart from the employment.”’” Bernardo v. Carlson Cos. — TGIF, 60 Va. App. 400, 405 , 728 S.E.2d 508, 511 (2012) (quoting Taylor v. Mobil Corp., 248 Va. 101, 107 , 444 S.E.2d 705, 708 (1994)).

2016“Virginia follows the ‘actual risk’ doctrine which ‘excludes “an injury which comes from a hazard to which the employee would have been equally exposed apart from the employment.”’” Bernardo v. Carlson Cos. — TGIF, 60 Va. App. 400, 405 , 728 S.E.2d 508, 511 (2012) (quoting Taylor v. Mobil Corp., 248 Va. 101, 107 , 444 S.E.2d 705, 708 (1994)).

2013See Hedge, 1 Va.App. at 201 , 336 S.E.2d at 907 (receiving “conflicting expert medical opinions as to the cause of [a work-related injury]” may create reasonable “doubt [as to] the compensability of the claim”).

2013See Hedge, 1 Va.App. at 201 , 336 S.E.2d at 907 (receiving “conflicting expert medical opinions as to the cause of [a work-related injury]” may create reasonable “doubt [as to] the compensability of the claim”).

2012See Butler, 270 Va. at 466 , 620 S.E.2d at 773 (“The exclusivity provision of Code § 65.2-307 applies only to an injury both ‘arising out of’ and ‘in the course of’ an individual’s employment”).

2012See Butler, 270 Va. at 466 , 620 S.E.2d at 773 (“The exclusivity provision of Code § 65.2-307 applies only to an injury both ‘arising out of’ and ‘in the course of’ an individual’s employment”).

2005Ryan’s Family Steak Houses, Inc. v. Gowan, 32 Va. App. 459, 463 , 528 S.E.2d 720, 722 (2000) (noting that General Assembly recodified and then revised applicable statute after decision in McGuinn and neither rejected nor modified our interpretation of statute in McGuinn) (quoting McGuinn, 5 Va. App. at 269-70 , 362 S.E.2d at 189 ); see Watts v. P & J Hauling, Inc., 41 Va. App. 278, 285-86 , 584 S.E.2d 457, 461 (2003) (holding commission did not err in finding no de facto award where employer paid compensation but disagreement existed over amount of average weekly wage).

2005Ryan’s Family Steak Houses, Inc. v. Gowan, 32 Va. App. 459, 463 , 528 S.E.2d 720, 722 (2000) (noting that General Assembly recodified and then revised applicable statute after decision in McGuinn and neither rejected nor modified our interpretation of statute in McGuinn) (quoting McGuinn, 5 Va. App. at 269-70 , 362 S.E.2d at 189 ); see Watts v. P & J Hauling, Inc., 41 Va. App. 278, 285-86 , 584 S.E.2d 457, 461 (2003) (holding commission did not err in finding no de facto award where employer paid compensation but disagreement existed over amount of average weekly wage).

1999"An employer and carrier are not estopped from denying future payments merely because they had paid them in the past." Rucker v. Thrift Transfer, Inc., 1 Va. App. 417, 420 , 339 S.E.2d 561, 562 (1986).

1999"An employer and carrier are not estopped from denying future payments merely because they had paid them in the past." Rucker v. Thrift Transfer, Inc., 1 Va. App. 417, 420 , 339 S.E.2d 561, 562 (1986).

1998See Bassett Burkeville Veneer v. Slaughter, 21 Va. App. 575, 578-79 , 466 S.E.2d 127, 129 (1996). - 3 - Based upon this record, the commission did not err in ruling that Dr. Liberman was an authorized treating physician, and, therefore, employer was responsible for the cost of Dr. Liberman's treatment.

1998See Bassett Burkeville Veneer v. Slaughter, 21 Va. App. 575, 578-79 , 466 S.E.2d 127, 129 (1996). - 3 - Based upon this record, the commission did not err in ruling that Dr. Liberman was an authorized treating physician, and, therefore, employer was responsible for the cost of Dr. Liberman's treatment.

1993See Dreyfus & Co., 142 Va. at 574 , 129 S.E. at 338 .

1993See Dreyfus & Co., 142 Va. at 574 , 129 S.E. at 338 .

1993When an employee's presence on the streets is shown to be in the course of employment, "Virginia, following the majority rule, has adopted what is known as the `actual risk test,' under which, in the words of Larson, `it is immaterial even whether the degree of exposure is increased, if in fact the employment subjected the employee to the hazards of the street, whether continuously or infrequently.'" Immer & Co. v. Brosnahan, 207 Va. 720, 725 , 152 S.E.2d 254, 257 (1967) (quoting 1 Arthur Larson, Workers' Compensation Law § 9.10 (1993)).

1993When an employee's presence on the streets is shown to be in the course of employment, "Virginia, following the majority rule, has adopted what is known as the `actual risk test,' under which, in the words of Larson, `it is immaterial even whether the degree of exposure is increased, if in fact the employment subjected the employee to the hazards of the street, whether continuously or infrequently.'" Immer & Co. v. Brosnahan, 207 Va. 720, 725 , 152 S.E.2d 254, 257 (1967) (quoting 1 Arthur Larson, Workers' Compensation Law § 9.10 (1993)).

1985Attorney’s fees may be awarded in a workers’ compensation case only when it is defended “without reasonable grounds.” Code § 65.1-101; see Norfolk Department of Fire v. Lassiter, _ Va. _, 324 S.E.2d 656, 657-58 (1985).