Actual Versus Positional Risks Posed by Rogue Drivers

On December 10, 2025, the Full Commission issued an Opinion affirming the denial of a workers’ compensation claim in which the claimant was injured after a near miss with a vehicle that ran into a safety bollard and onto the sidewalk outside of a Walmart store. Ullmann v. Wal-Mart Associates, Inc., VA00002140409 (Dec. 10, 2025). The Commission found this incident did not arise out of the claimant’s employment. In reaching its decision, the Commission emphasized Virginia’s adoption of the “actual risk doctrine” and its repeated refusal to adopt the “positional risk doctrine.” This decision reinforces a fundamental (but frequently misunderstood) principle of Virginia workers’ compensation law: not every injury that occurs at work is compensable.

Mr. Ullman worked as a Front-End Team Lead for a Walmart store. On the morning of June 27, 2023, Ullmann exited the front entrance of the store to check the parking lot for cleanliness. Upon exiting onto the front sidewalk, Ullmann heard a noise he later identified as a car striking one of the safety bollards and coming up onto the sidewalk. At the time, he had several light objects in his hands. Upon hearing the noise, Ullmann stopped in his tracks, lost his balance, and then took a few stumbling steps backwards. He suffered a left knee injury as a result. Following denial of his claim, an evidentiary hearing was held before Deputy Commissioner Jimese Pendergraft Sherrill on October 16, 2024. Deputy Commissioner Sherrill issued an Opinion on June 12, 2025, finding that Ullmann failed to meet his burden of proving his injury arose out of his employment. Ullmann appealed the decision to the Full Commission.

There was no dispute that Ullmann was in the course of his employment with Walmart at the time of his injury. As such, the only issue was whether the incident arose out of his employment. To address the arising out of element, Virginia employs the “actual risk test.” Southside Va. Training Ctr. v. Ellis, 33 Va. App. 824, 828 (2000). An injury arises out of the employment “if the manner in which the employer requires the work to be performed is causally related to the resulting injury.” Id. (quoting Vint v. Alleghany Reg’l Hosp., 32 Va. App. 60, 63 (2000)). It is not enough to show that the injury occurred at work (i.e., “positional risk”). Under the “actual risk test,” there must be a “critical link” between the conditions of the workplace and the injury. Norris v. ETEC Mech. Corp., 69 Va. App. 591, 599 (2018)). The injury must be “fairly . . . trace[able] to the employment as a contributing proximate cause” and not come “from a hazard to which the [employee] would have been equally exposed apart from the employment.” Southside Va. Training, 33 Va. App. at 829 (quoting Vint, 32 Va. App. at 64). Simply “walking, bending, or turning without any other contributing environmental factors, are not risks of the employment.” Nurses 4 You, Inc. v. Ferris, 49 Va. App. 332, 341 (2007).

Deputy Commissioner Sherrill concluded that although Ullmann had some light items in his hands, he was not engaged in any work-related task at the moment. She cited the case of Green Hand Nursery, Inc. v. Loveless, 55 Va. App. 134 (2009). In that case, Loveless worked at a nursery located on a stretch of Route 17 with a 55-mph speed limit. On the date of her injury, Loveless was outside shutting off a series of sprinklers located 27 feet from the road – a task that occupied her attention. When she heard screeching tires, she looked up and saw a vehicle flying off the highway towards her. She attempted to run for safety, but she was struck by the vehicle. The Court of Appeals found that the origin of Loveless’s injury resulted from a peculiar condition to her employment. In addition to the fact that Loveless was distracted from the vehicle speeding towards her by her work-related task of shutting off sprinklers, her escape to safety was impeded by slippery weed mats and potted plants.

In Ullmann, Deputy Commissioner Sherrill found that Ullmann having items in his hand and the fact that his work caused him to be on the sidewalk were not enough work-related contributing factors to make Ullmann’s injury one that arose out of his employment. Similarly, the Full Commission felt that the items Ullmann was holding had “no consequential impact” and “did not create a work-related exertion or distraction which would form a work-related risk or hazard to invoke that the incident arose out of the employment.” The Commission concluded that Ullmann failed to establish that his reaction was caused by any work-related risk or significant work-related exertion. Ullmann being startled was not something caused by his employment, but, rather, was a risk equal to any person exiting the building. As such, the Full Commission affirmed Deputy Commissioner Sherrill’s decision to deny benefits.

Commissioner Wesley Marshall wrote a dissent to the majority opinion. His position was primarily grounded in an analysis of the physical characteristics of the scene of Ullmann’s incident, which Commissioner Marshall felt subjected Ullmann to the risk of being stuck by a vehicle – a risk attributable to the employment. He cited the nearly century-old case of Cohen v. Cohen’s Dep’t Store, Inc., 19 O.I.C. 322 (1937), aff’d, 20 O.I.C. 12 (1938), rev’d on other grounds, 171 Va. 106 (1938), in which the Supreme Court of Virginia addressed the compensability of accidents occurring adjacent to storefronts. The Commissioner who first heard and issued a ruling in Cohen explained that a risk is “incidental to the employment” if it “results from some danger to which the worker is exposed by the nature, conditions, obligations, or incidents of the employment, as, for example, from a peril attaching to the particular location in which, by the obligation of service, the worker was placed.” Cohen, 19 O.I.C. 322, 324 (1937) (quoting MacDonald’s Workmen’s Compensation 270 (2d. ed.)). Commissioner Marshall pointed to a handful of much more recent cases in which the Virginia Court of Appeals found that circumstances such as the location of the workplace in proximity to vehicles, the layout of the workplace, a claimant’s inability to see an approaching vehicle, or his inability to escape it, were all workplace conditions that subjected the worker to the danger of being struck by a vehicle.

With respect to the present case, Commissioner Marshall pointed to Ullmann’s testimony that the safety bollard in front of the store were intended to protect the sidewalk from vehicles. Commissioner Marshall wrote that the bollard’s “design and existence indicated a foreseeable and, plainly, a foreseen risk — the prospect of automobiles entering the sidewalk area near the store entrance where employees and customers transited.” He also cited the lack of a “curb or height-based physical barrier” between the driveway and sidewalk. Notably, Commissioner Marshall felt that the Full Commission’s ruling in this case, where there was no curb, was inconsistent with its recent decision in McQueen v. Virginia Department of Health, JCN VA00002075048 (June 24, 2024). McQueen was injured when a car crashed through the exterior wall of her office. Separating the exterior of the building from a roadway that extended straight towards the office building was a curb, sidewalk, and strip of grass. The Deputy Commissioner and a majority of the Full Commission rejected McQueen’s argument that the location of her employer’s work site, the specific location of her office, and her employer’s work policies all placed her at an increased risk of injury. The Deputy Commissioner specifically stated,

the area in which McQueen was working at the time of her accident was separated from the parking and driveway areas by a curb, a sidewalk, and a buffer zone of grass. There was also no evidence of prior, similar incidents in this area that would demonstrate that the building was located in an area of increased risk for vehicular collisions.

In his dissent to the majority opinion in Ullmann, Commissioner Marshall stated that the “majority does not explain the logical incongruity in its reasoning that the presence of a curb disproves that a vehicle collision arises out of the employment, see McQueen … , but, as here, the absence of a curb does not prove a similar accident arises out of the employment.” That said, the presence or absence of a curb does not appear to have been something heavily relied upon by the majority in either Ullmann or McQueen – certainly it was not established as a factor that, on its own, proved or disproved the arising out of element. Commissioner Marshall’s dissent also begs the question of why the bollards in front of Walmart do not constitute the type of “height-based physical barrier” he claimed was absent.

The Full Commission’s decision in Ullmann has recently been appealed to the Court of Appeals. While the Full Commission’s decision will only be reversed and/or remanded if the Court finds there was an error in the interpretation or application of the law, it will be interesting to see if the Court provides any additional guidance on the factors to be considered in these types of cases. For now, it appears the Commission is maintaining its history of a strict interpretation and application of the actual risk doctrine.

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