COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Alston and Senior Judge Annunziata
Argued at Alexandria, Virginia
AMERICAN TRUCKING ASSOCIATION, INC. AND
CHUBB INDEMNITY INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 0980-09-4 JUDGE RANDOLPH A. BEALES
FEBRUARY 23, 2010
MARIANNE R. STALLINGS
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Angela F. Gibbs (Richard S. Sperbeck; Midkiff, Muncie & Ross,
P.C., on brief), for appellants.
W. David Falcon, Jr. (Chasen Boscolo, on brief), for appellee.
American Trucking Association, Inc. (ATA) and its insurer appeal the decision of the
Workers’ Compensation Commission awarding medical benefits to Marianne Stallings
(claimant). ATA argues on appeal that the commission erroneously found that claimant was
injured on ATA’s “extended premises.” Finding no reversible error, we affirm the commission’s
decision for the reasons stated below.
I. BACKGROUND
We view the evidence in the light most favorable to claimant, who prevailed below. See
Westmoreland Coal v. Russell, 31 Va. App. 16, 20, 520 S.E.2d 839, 841 (1999). So viewed, the
evidence shows that claimant worked on the fourth floor of The Regent Building (the building),
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
several floors of which ATA leased. 1 Claimant’s workday was from 8:30 a.m. to 5:30 p.m.,
including an unpaid lunch hour.
On December 5, 2007, a snowy day, claimant and a colleague walked to a nearby
restaurant to have lunch. They intended to return to work using the building’s west entrance, the
entrance closest to the restaurant where they had lunch. After exiting the public street and
walking past the electronic card reader and gate that control access to the building’s paved
driveway and underground garage, claimant slipped on icy ground. Claimant’s fall resulted in
injuries to her neck, lower back, and knees.
Claimant filed a claim with the commission seeking medical benefits. ATA argued, inter
alia, that claimant’s injuries did not arise out of and in the course of her employment. 2 Applying
this Court’s opinion in Prince v. Pan American Airways, 6 Va. App. 268, 368 S.E.2d 96 (1988),
however, the deputy commissioner found that claimant’s accidental fall occurred within ATA’s
extended premises (“on the driveway immediately in front of the building entrance,” as he
described it) and, therefore, awarded medical benefits to claimant. The commission affirmed this
decision, 3 and ATA now appeals to this Court.
II. ANALYSIS
Under the Workers’ Compensation Act (the Act), an injured employee “must prove by a
preponderance of the evidence that the injury arose ‘out of and in the course of the
employment.’” Lucas v. Fed. Express Corp., 41 Va. App. 130, 133, 583 S.E.2d 56, 58 (2003)
1
ATA did not own, control, or maintain any of the premises outside of the building.
2
ATA’s other arguments before the deputy commissioner – that claimant was not injured
as she alleged and that medical treatment was not causally related to a compensable accidental
injury – are not relevant to this appeal.
3
The commission also denied ATA’s motion to vacate and reconsider, in which ATA
sought reconsideration of several of the commission’s factual findings.
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(quoting Code § 65.2-101). “Whether an injury arises out of and in the course of employment
involves a mixed question of law and fact, which we review de novo on appeal.” Blaustein v.
Mitre Corp., 36 Va. App. 344, 348, 550 S.E.2d 336, 338 (2001).
An injury incurred while going to or from work generally is not compensable under the
Act. See Kent v. Virginia-Carolina Chemical Co., 143 Va. 62, 66, 129 S.E. 330, 331 (1925)
(stating that “an employee going to or from the place where his work is to be performed is not
engaged in performing any service growing out of and incidental to his employment”).
“Employment, however, cannot be rigidly limited by the walls of the specific space that
constitute the workplace.” Prince, 6 Va. App. at 271, 368 S.E.2d at 97; see also Brown v. Reed,
209 Va. 562, 566, 165 S.E.2d 394, 397 (1969) (holding that employment under the Act
“include[s] a reasonable interval of time” for “entry upon and departure from the place of
work”).
[E]mployment includes not only the actual performance of the
work, but also “a reasonable margin of time and space necessary to
be used in passing to and from the place where the work is to be
done.” . . . [I]f an employee sustains an injury while passing, with
the express or implied consent of the employer, to or from his or
her work by a way over the employer’s premises, “or over those of
another in such proximity and relation as to be in practical effect a
part of the employer’s premises,” the injury is as causally related to
the employment as if it had been sustained while the employee was
engaged in work at the place of its performance.
Prince, 6 Va. App. at 271-72, 368 S.E.2d at 97 (quoting Barnes v. Stokes, 233 Va. 249, 252, 355
S.E.2d 330, 331 (1987)). In addition, these principles are applicable “to the journey to and from
a lunch break” and are still applicable when an employee, such as claimant here, “‘has a definite
place and time of work, and the time of work does not include the lunch hour . . . .’” Id. at 271,
368 S.E.2d at 97 (quoting 1 A. Larson, Workmen’s Compensation Law § 15.51 (1985)).
The employee in Prince injured herself while returning from her lunch break when she
slipped on an icy walkway approximately five feet from an entrance to the office building leased
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by her employer. 4 Id. at 270, 368 S.E.2d at 96. This Court held that the employee’s injuries
were compensable under the Act because the walkway where she fell was “‘in such proximity
and relation as to be in practical effect a part of the employers’ premises.’” Id. at 272, 368
S.E.2d at 98 (quoting Barnes, 233 Va. at 252, 355 S.E.2d at 331). Moreover, this Court held the
fact that the employer did not own or maintain the entire building or that particular walkway was
irrelevant because the employee’s accident occurred in an area where the employer had a right of
passage essentially comprising an easement. Id. at 273-74, 368 S.E.2d at 98.
ATA argues that the commission incorrectly applied this Court’s holding in Prince to the
facts of this case. ATA contends that several of the commission’s factual findings – including,
most notably, its finding that claimant was on a sidewalk when she fell – were unsupported by
the evidence. If these factual findings were discarded, ATA asserts, this Court’s holding in
Prince would not be controlling on the facts here. However, the facts are undisputed that
claimant here fell after exiting the public road and after passing the electronic card reader and
gate controlling access to the paved driveway within the building’s premises. Furthermore,
Prince did not limit the “extended premises” doctrine to sidewalks, nor did it foreclose
compensation under the Act for accidents suffered on driveways located on grounds immediately
surrounding an office building. In fact, in discussing areas where an employer has “some kind of
right of passage . . . through which the employer has something equivalent to an easement,” this
Court in Prince specifically mentioned “common stairs, elevators, lobbies, vestibules,
concourses, hallways, walkways, ramps, footbridges, driveways, or passageways . . . .” Id. at
274, 368 S.E.2d at 98 (emphasis added) (internal quotation marks and citation omitted).
4
No evidence was presented at the evidentiary hearing before the deputy commissioner
indicating precisely how far away claimant was from the west entrance of the building’s door
when she slipped and fell. However, during oral argument before this Court, employer’s counsel
acknowledged that an employee need not be injured only five feet from the office building’s
door for this Court’s holding in Prince to apply.
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Therefore, the commission’s ultimate conclusion was not contrary to the principles expressed by
this Court in Prince, even if we were to assume that claimant was not actually walking on the
sidewalk when she slipped and fell.
Moreover, we are constrained by this Court’s decision in Wetzel’s Painting &
Wallpapering v. Price, 19 Va. App. 158, 449 S.E.2d 500 (1994). The employee in Wetzel’s
Painting, who was hired to paint the interior of a house, slipped and fell on an icy concrete apron
connecting a public street to a gravel driveway outside his jobsite. Id. at 159, 449 S.E.2d at
500-01. The accident occurred before the employee reached the gravel driveway, and, in fact, a
surveyor testified that the concrete apron where the employee fell was public property. Id. at
159, 449 S.E.2d at 501. Applying Prince, this Court affirmed the commission’s finding that the
employee’s injury arose out of and in the course of his employment, holding:
In Prince, the employee was required to traverse the
walkway to enter the building from the public right-of-way. Here,
the claimant was required to traverse the concrete apron leading
from the public street into the driveway in order to enter the house
to paint. Thus, the hazards of the concrete apron were hazards of
claimant’s employment. Because claimant’s injury occurred on
property we deem to be in practical effect a part of the employer’s
premises, it was irrelevant that other entrances into the building
were available. Further, no evidence established that the other
entrances were less hazardous than the entrance claimant used.
Id. at 161, 449 S.E.2d at 502 (citations omitted).
In this case, as in Prince and Wetzel’s Painting, claimant was required to traverse the area
where she fell in order to reach her workplace. 5 Unlike in Wetzel’s Painting, where the injury
was compensable under the Act even though the employee actually slipped and fell on public
5
It is undisputed that claimant here entered the premises legitimately at the conclusion of
her lunch to resume work-related duties. See Prince, 6 Va. App. at 273, 368 S.E.2d at 99.
Furthermore, claimant took the most direct route from the restaurant to her place of employment
and was not taking a detour or longer route or otherwise engaged in a personal venture when she
suffered her injury. See id. at 274, 368 S.E.2d at 99.
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property, the evidence is undisputed that claimant suffered her injuries after exiting the public
street on foot and after passing by the electronic card reader and gate controlling vehicular traffic
onto the building’s property. In light of this Court’s holding in Wetzel’s Painting, the
commission did not err in finding that the employment here, under the facts of this case,
‘“beg[a]n in point of time before the work [wa]s entered upon and in point of space before the
place where the work to be done [wa]s reached.’” Id. at 162, 449 S.E.2d at 502 (quoting Brown,
209 Va. at 565, 165 S.E.2d at 397). Therefore, sufficient credible evidence exists to support the
commission’s finding that claimant was injured on ATA’s extended premises.
ATA also argues that this Court’s decision in Cleveland v. Food Lion LLC, 43 Va. App.
514, 600 S.E.2d 138 (2004), where compensation was denied, should control the outcome here.
The employer in Cleveland was one of five stores located in a strip mall that used a common
parking lot; the employee in that case, who had parked her car in the parking lot, injured herself
while running toward the store to begin her shift. Id. at 516-17, 600 S.E.2d at 139. Because the
employer in Cleveland did not control the use of the parking area and did not control where its
employees parked, this Court held that the parking lot was not part of the employer’s extended
premises. Id. at 520, 600 S.E.2d at 140; see also Hunton & Williams v. Gilmer, 20 Va. App.
603, 607-08, 460 S.E.2d 235, 237 (1995) (holding the employee’s injury was not compensable
because she was allowed, but not required, to park in a garage across the street from her
employer, and because there was no evidence that she was injured in an area of the parking lot
reserved for employees only). But see Barnes v. Stokes, 233 Va. 249, 252-53, 355 S.E.2d 330,
332 (1987) (holding the employee’s injury was compensable because the accident “occurred in
the area [of the parking lot] specifically allocated to the employer and at the place where the
employees were required to park their vehicles”). However, this Court’s holding in Cleveland is
not applicable to the facts of this case.
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Here, although ATA presented evidence concerning the parking arrangements it had
made with its employees and with the owner of the building’s parking garage, the commission
found that such evidence was “not pertinent to this situation.” The commission’s finding here
was not plainly wrong. As the commission found, the accident resulting in claimant’s injuries
did not occur in the parking garage or while she was entering the parking garage. Thus, the mere
fact that claimant’s vehicle was parked in the building’s garage at the time of her injury is
irrelevant to the analysis of ATA’s extended premises here.
Instead, the relevant inquiry here is limited to where claimant was when she suffered her
injuries. The evidence is undisputed that, while concluding her walk back to her place of
employment, claimant slipped and fell after exiting the public road and after beginning to walk
on the building’s paved driveway. Claimant was injured while traversing “‘an essential means of
ingress and egress from the public right-of-way to [ATA’s] place of business.’” Wetzel’s
Painting, 19 Va. App. at 161, 449 S.E.2d at 501 (quoting Prince, 6 Va. App. at 274, 368 S.E.2d
at 98). ATA’s employees had a right of passage over this area of the building’s premises, see
Prince, 6 Va. App. at 275, 368 S.E.2d at 99, and this was an area where claimant, who was
returning to ATA’s place of employment after her lunch break, was reasonably expected to be.
See Brown, 209 Va. at 568, 165 S.E.2d at 399.
Therefore, the commission did not err in finding that claimant was injured on ATA’s
extended premises, and, accordingly, we conclude that the commission correctly awarded
claimant medical benefits under the Act as a result of her workplace injury.
III. CONCLUSION
For the foregoing reasons, we affirm the decision of the commission.
Affirmed.
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American Trucking Association, Inc. and Chubb Indemnity Insurance Company v. Marianne R. Stallings
Combined Opinion