Virginia Counselor’s Injuries While Attending Mandatory Off-Site Training Were Not Compensable

Appeals Court Says She Was Not Subject to Special Risk of Injury

A Virginia appellate court reversed an award of workers’ compensation benefits to a licensed professional counselor who was injured when she tripped and fell over raised tree roots near a community college building where she was to attend off-site mandatory training [City of Va. Beach v. Hamel, 2019 Va. App. LEXIS 44 (Feb. 26, 2019]. The court stressed that while the counselor may have been mandated to be on campus, the employer had not instructed her where to park or which route to take to the building. Her risk of falling was equal to that of any member of the general public [see Larson’s Workers’ Compensation Law, § 3.03].


The counselor had parked her car some distance from the building and, as she approached the college building, she stepped over a curb into a grassy area containing exposed tree roots. She tripped and fell over one of two raised tree roots and incurred injuries to her face, head, right shoulder, right wrist, right hand, and cervical and lumbar regions. The tree roots protruded approximately two inches above the ground. Hamel testified that she did not see the tree roots before tripping.

Commission’s Ruling

The Commission determined that the injuries arose out of and in the course of the employment, reasoning that because the counselor was required to attend the off-premises training, she was “in the course of employment” until she returned to her regular workplace or home. The Commission rejected the employer’s contention that compensability necessitated a risk that was unique to the employment or is one to which the general public was not also exposed.

Court’s Analysis

The appellate court stressed that the concepts “arising out of” and “in the course of” employment are not synonymous; both conditions must be proved before compensation can be awarded. Here, there was no question that the counselor sustained injuries due to an accident that occurred in the course of her employment. The sole issue was whether the counselor’s injuries arose out of her employment.

Applying what it termed, the “actual risk” test, the court noted that the employee’s risk must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.

No Special Risk

Under these facts, the court concluded that while the training attended by the counselor was deemed mandatory by her employer, the employer did not instruct her where to park or which route to take to the building in which the training was being held. There were no parking permits issued or parking spaces assigned to its employees and others attending the training on campus. Therefore, the counselor’s risk of tripping over the tree roots was equal to that of any member of the general public walking on the unpaved area adjacent to the sidewalk. The fact that the counselor was mandated to be on campus by the City did not create a causal relationship between a special risk of her employment and her injury. Her injuries were, thus, not compensable.

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