Hazelwood v. Via Satellite Inc Travelers Casualty & Surety Co., 031821 VAWC, VA00001589426

• Case Date: March 18, 2021
• Court: Virginia

JACOB HAZELWOOD v. VIA SATELLITE INC TRAVELERS CASUALTY AND SURETY CO, Insurance Carrier TRAVELERS CASUALTY AND SURETY CO, Claim Administrator Jurisdiction Claim No. VA00001589426 Claim Administrator File No. FLJ0145 Virginia Workers’ Compensation Virginia In The Workers’ Compensation Commission March 18, 2021           Date of Injury: March 28, 2019           Seth Carroll, Esquire For the Claimant.           Lisa M. Frisina, Esquire For the Defendants.           REVIEW on the record by Commissioner Marshall, Commissioner Newman, and Commissioner Rapaport at Richmond, Virginia.           OPINION           RAPAPORT Commissioner          The claimant requests review of the Deputy Commissioner’s September 29, 2020 Opinion finding the claimant did not prove an injury by accident arising out of the employment. We AFFIRM the lower decision.^[1]          I. Material Proceedings          On September 4, 2019, December 17, 2019, August 25, 2020, and August 31, 2020, the claimant filed claims alleging a compensable injury by accident on March 28, 2019 that resulted in injures to both legs, third degree burns of the body, and Jacob Hazelwood’s subsequent death.^[2]          The claims sought medical benefits, permanent partial disability benefits, temporary total disability from March 28, 2019 to October 3, 2019, and death benefits.          The defendants defended the claim on the basis there was no injury by accident arising out of the employment.          Deputy Commissioner Slough conducted an evidentiary hearing on September 15, 2020. She denied the claimant’s claims. She opined:

While there was testimony from Mr. Parsonson, a highway design expert, that the safe speed in the curve was 35 mph and there was no sign posted to indicate that safe speed, we did not find evidence to indicate that speeding was the cause of the accident. Mr. Chewning, an expert in accident reconstruction, testified that there was no indication Mr. Hazelwood was traveling too fast for the curve. Mr. Parsonson testified that 35 mph was a safe speed for the curve. He opined that the lack of a sign noting the safe speed contributed to the cause of the accident. However, he noted that the decision to place chevron signage and a safe speed sign was left to the judgment of the traffic engineer. Apparently, the traffic engineer associated with this curve did not judge there was a need for the safe speed sign. That opinion could have simply been based on the number of vehicles traveling that particular curve. But we do not know the basis for that opinion. It would not be reasonable to infer that the safe speed sign was needed and the failure to place it there contributed to the accident.

Several witnesses testified they did not know why the accident occurred. Mr. Brown noted he simply did not know the circumstances leading up to the accident. Traveling too fast for the curve could certainly be a cause of the accident. However, the reason could be that Mr. Hazelwood fell asleep and crossed the center line. The reason could be that he was distracted selecting a radio station and crossed the center line. The reason could be that he was distracted by something else and crossed the center line. The reason could be that he was daydreaming and crossed the center line. We do not know that traveling too fast for the curve was the “actual risk” that caused the accident. The critical link between the employment and injuries

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