Blaustein v. Mitre Corp.

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia

BARBARA T. BLAUSTEIN
OPINION BY
v. Record No. 2860-00-4 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 7, 2001
MITRE CORPORATION AND
TRAVELERS INDEMNITY COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

William S. Sands, Jr. (Duncan and Hopkins,
P.C., on brief), for appellant.

Francis G. Marrin (Law Office of Roger S.
Mackey, on brief), for appellees.

The appellant, Barbara T. Blaustein, appeals the denial of

benefits by the Workers' Compensation Commission for an injury

she suffered on February 5, 1997, while on her way to work.

Blaustein contends the commission erred in finding that her

injury did not arise out of her employment under an exception to

the "coming and going" rule. For the following reasons, we

affirm.

I.

BACKGROUND

The Mitre Corporation, a federally funded research and

development center, hired Blaustein as a scientist in March

1992. At the time of the accident on February 5, 1997, she
resided in Silver Spring, Maryland. From 1992 to 1995, she

commuted by car to Mitre's office in Tysons Corner, Virginia.

In 1995, in accordance with an inter-governmental Personnel

Assignment Agreement (IPA), she began working at the National

Science Foundation (NSF), an agency of the federal government

located in Arlington, Virginia. The IPA Agreement for Blaustein

originally was to run from November 1995 through November 1996,

but was extended for one year through November 1997.

Before the IPA assignment, Blaustein parked her car free of

charge at Mitre's facility in Tysons Corner in a parking lot

adjacent to the company's building. Parking at NSF was either

on the street, if available, or for a fee in a public garage

under the NSF building. When Blaustein accepted the assignment

at NSF, Mitre agreed to reimburse her for either the cost of

garage parking at NSF or the cost of Metro subway

transportation.

The manner, mode, and route of travel to NSF were solely

within the discretion of Blaustein. In making the daily commute

to NSF over the fifteen-month period prior to her accident,

Blaustein frequently drove from Silver Spring to Arlington and

parked her vehicle in the basement of the NSF building. On the

days she did not drive to NSF, she drove to the Wheaton Metro

station, parked her car in the Metro parking lot or on the

public street, and took the subway to NSF. She was reimbursed

for the parking fee at the NSF garage for the days she drove,

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and for the Metro fare on the days she took the subway. She

received neither mileage nor gasoline costs.

After taking the NSF assignment, Blaustein maintained her

office at the Mitre building. She only spent one or two days

per month at the Mitre facility, but maintained daily contact

with her Mitre colleagues both over the telephone and by e-mail.

Blaustein typically worked on some Mitre-related tasks while

working at NSF, in addition to attending her NSF related

responsibilities.

On the morning of February 5, 1997, Blaustein left her home

in Silver Spring to travel to work at NSF. She drove

approximately one mile to the Wheaton Metro station and parked

her car on a residential street. While crossing at a public

intersection on her way to the subway station, she was struck by

an automobile. She was taken to the hospital where she began

treatment for her injuries. The extent of her injuries is not

at issue in this case.

Blaustein filed a workers' compensation claim against Mitre

Corporation and their workers' compensation carrier, Travelers

Indemnity Company, seeking benefits for the injury. An

evidentiary hearing was held before a deputy commissioner on

September 13, 1999, and he issued an opinion on December 1,

1999. The deputy commissioner found the "special errand"

exception to the "coming and going" rule applied and awarded

disability and medical benefits to Blaustein.

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 Mitre and Travelers requested review before the full

commission on three issues: (1) whether Blaustein was an

employee of Mitre at the time of her accident; (2) whether

Blaustein's accident arose out of and in the course of her

employment under an exception to the "coming and going" rule;

and (3) whether Blaustein was entitled to temporary total

disability benefits. In its opinion dated November 15, 2000,

the full commission found Blaustein to be an employee of Mitre;

however, it ruled the accident did not fall within an exception

to the "coming and going" rule and, therefore, denied benefits.

Blaustein appealed to this Court on the sole issue of

whether her accident fell within an exception to the "coming and

going" rule.

II.

ANALYSIS

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. Norfolk Community Hosp. v. Smith, 33

Va. App. 1, 4, 531 S.E.2d 576, 578 (2000).

An employee may recover workers' compensation benefits when

the injuries result from an event "arising out of" and "in the

course of" employment. Generally, an injury sustained by an

employee while "coming and going" to work does not arise out of

or in the course of the claimant's employment and is not

compensable. Sentara Leigh Hosp. v. Nichols, 13 Va. App. 630,

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636, 414 S.E.2d 426, 429 (1992) (en banc); see also Arthur

Larson & Lex K. Larson, Larson's Workers' Compensation Law

§ 13.01 (2000) ("going to and from work is covered only on the

employer's premises"). This general rule, also known as the

"premises" rule, has three exceptions: (1) where the means of

transportation are provided by the employer or the time consumed

by travel is paid for and is included in the employee's wages;

(2) where the way used to and from employment is the sole and

exclusive means of ingress and egress; and (3) where the

employee is engaged in some duty or task in connection with his

or her employment, i.e., when the employee is on a special

errand. Sentara, 13 Va. App. at 636, 414 S.E.2d at 429.

Blaustein contends the first and third exceptions apply to

her accident. We disagree and find that her injury did not

arise out of or in the course of her employment.

A. The Transportation Exception

Blaustein contends that because Mitre reimbursed her for

her subway fare on the days she took the Metro to NSF, her

accident, which occurred while she was traveling from her home

to a Metro station on her way to NSF, is compensable under the

"transportation" exception to the "coming and going" rule. We

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disagree and find Blaustein's injury does not fall under the

"transportation" exception. 1

The issue raised in this case is one of first impression in

Virginia. Earlier cases addressed the right to compensation as

a result of an injury sustained by an employee being transported

to and from a place of employment in a vehicle furnished or

driven by the employer. In Scott v. Willis, 150 Va. 260, 142

S.E. 400 (1928), for example, the employer was required by the

employment contract with the employee to provide transportation

for the employee to and from his home each day. The employee

had exited the employer's truck and began to cross the highway

to his home, which was two blocks away. An oncoming car struck

the employee as he crossed the road. The employer contended

that benefits should not be awarded because the employee had

left the truck. The Virginia Supreme Court disagreed and held

the accident arose out of and in the course of the claimant's

employment based on the employment agreement between the

parties. See also Bristow v. Cross, 210 Va. 718, 173 S.E.2d 815

(1970) (employee injured while being transported in employer's

truck); Hann v. Times-Dispatch Pub. Co., 166 Va. 102, 184 S.E.

183 (1936) (same); Boyd's Roofing Co. v. Lewis, 1 Va. App. 93,

335 S.E.2d 281 (1985) (same).

1
We do not decide whether Blaustein's injury would be
compensable had she been injured while at the subway station
waiting to board the Metro.

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 In Provident Life & Accident Ins. Co. v. Barnard, 236 Va.

41, 372 S.E.2d 369 (1988), the Virginia Supreme Court extended

compensation to situations where the employer "agrees to provide

the employee transportation by company vehicle or public

conveyance; or to pay the employee wages or salary for the time

spent in travel required by the work; or to reimburse the

employee expenses incurred in the operation of his own vehicle

in the performance of his duties." Id. at 47, 372 S.E.2d at

372-73. See also Cardillo v. Liberty Mut. Ins. Co., 330 U.S.

469, 482-83 (1947) ("Where there is that obligation [to provide

transportation], it becomes irrelevant in this setting whether

the employer performs the obligation by supplying its own

vehicle, hiring the vehicle of an independent contractor, making

arrangements with a common carrier, reimbursing employees for

the use of their own vehicles, or reimbursing employees for the

costs of transportation by any means they desire to use.").

The principles to be derived from Scott are based primarily

on contract principles. In Scott, the "contract of employment

provided that [Scott] was to receive free transportation to and

from his home . . . and the place where he was required to

work." Scott, 150 Va. at 263, 142 S.E. at 400. Based on the

contract, the Virginia Supreme Court found the right to

compensation well established, stating, "in view of the contract

of the employer to transport the claimant back to his home, if

the injury occurred during the transportation, it arose out of

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and in the course of his employment, and is, therefore,

compensable." Id. at 265, 142 S.E. at 401; see also Cardillo,

330 U.S. 469 (through a union contract, employer had agreed to

pay claimant's full transportation expenses to and from work);

Katz v. Katz, 75 A.2d 57, 58 (Conn. 1950) (employer agreed to

transport claimant home each night); Sihler v. Lincoln-Alliance

Bank & Trust Co., 19 N.E.2d 1008, 1008 (N.Y. 1939) (employer

agreed to ensure that claimant "got home safe" if claimant would

agree to stay and work overtime).

In rejecting the employer's contention in Scott that the

contract to provide transportation did not extend coverage to

the moment in time when the worker was leaving the vehicle

provided by the employer, the Virginia Supreme Court stated:

To sustain [the employer's] contention would
be too narrow a construction of the act,
which is everywhere liberally construed in
favor of the employee. It is also too
narrow a construction of the evidence in
this case . . . . It could hardly be
doubted, we think, that if the injury had
occurred while the claimant was approaching
the automobile for the purpose of commencing
his journey, either to his work or to his
home or while in the act of boarding it,
that this would be compensable. It is
difficult to fix the precise moment at which
liability in such a case would cease – that
is, the very instant when the homeward
journey is ended; and in this case, under
the facts, the question is very
close . . . .

Scott, 150 Va. at 266, 142 S.E. at 401. Under the contract in

Scott, "the transportation of [the] claimant to his home was not

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completed until he had reached a point which exempted him from

the risks incident to that particular journey." Id.

In addition to employing contract principles in reaching

its decision, the Supreme Court analogized the circumstances

underlying liability in Scott to those associated with working

on the employer's premises. The premises theory of liability

recognizes implicitly that the employer is liable for injuries

and attendant risks occurring in places over which it has

control or for harm to the employee caused by risks that it

generated in some way.

[E]mployment includes not only the actual
doing of the work, but 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. If the employee be injured
while passing, with the express or implied
consent of the employer, to or from his 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
one arising out of and in the course of
employment as much as though it had happened
while the employee was engaged in his work
at the place of its performance.

Id. at 268, 142 S.E. at 402; see also Larson, supra, § 15.01[1]

(the rationale behind the transportation exception "depends upon

the extension of risks under the employer's control"). 2

2
By treating employer-provided transportation as an
extension of the employer's premises, courts have extended the
employer's liability to employees boarding and alighting from
vehicles furnished by the employer. See Ferrara v. City of New
Orleans, 100 So.2d 896 (La. Ct. App. 1958) (employee injured
while alighting from employer's truck); Gibbs v. Pizzolato, 67

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 The analogy to the employer's premises operates less

effectively in cases such as the one presently before us. As

noted by Professor Larson, "it would be undesirable to start the

dangerous and unending game of fixing a 'reasonable distance' to

which protection is extended." Larson, supra, § 15.04. 3 In such

So.2d 139 (La. Ct. App. 1953) (employee injured as she stepped
from employer's vehicle). Liability has also been found to
exist when the injury occurs on pathways used by the employee
upon exiting the vehicle at the invitation or direction of the
employer or with the employer's acquiescence. See Flannagan v.
Webster & Webster, 142 A. 201, 204 (Conn. 1928) (where employer
stopped truck across the road from the employee, this
constituted an "invitation" or "order" to cross the road to
board the employer's vehicle); Povia Bros. Farms v. Velez, 74
So.2d 103, 105 (Fla. 1954) (employer's truck stopped across the
road from the claimant's home, constituting an "invitation" for
claimant to cross road to board truck); Baldwin v. Pepsi-Cola
Bottling Co., 108 S.E.2d 409, 410 (S.C. 1959) ("When the truck,
driven by his superior, was stopped for him to board it, it was
an implied direction of the employer to him to cross the street
and do so; he was no longer master of his movements. The
crossing of the street thereby became incidental to the
employment . . . ."). In other cases, liability has been
extended where a special hazard exists, either associated with
or created by the employer-provided transportation. See Katz,
75 A.2d at 58 (employer directed employee to walk to corner and
take bus home; because sidewalk leading to bus stop was
unshoveled, employee was forced to walk on side of road, where
he was struck by passing vehicle); Becker v. Industrial
Commission, 719 N.E.2d 792, 797-98 (Ill. App. Ct. 1999)
(employee dropped off across the street from his house and the
position of the employer's vehicle obstructed employee's view as
he crossed the road); Devito v. Imbriano, 332 N.Y.S.2d 577,
579-80 (N.Y. Sup. Ct. 1972), aff'd, 350 N.Y.S.2d 406 (N.Y. 1973)
("The means of egress from the employer's truck created a hazard
and danger of injury since decedent had to descend into traffic
on the driver's side . . . .").
3
Larson, supra, § 15.04 states:

The confusion that characterizes this
class of cases could be cleared up by
forthrightly following the analogy of

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exceptions to the main premises rule itself.
If one thinks of the employer's truck as a
floating fragment of the premises, the
analogy will supply answers in several
familiar types of cases. When the
employer's truck pulls up across the street
from the plant gate, the most fitting
analogy is that of travel between two parts
of the premises. Let us suppose that there
is an employer-maintained parking lot on the
same side of the street where the truck
boards and discharges employees. An
employee parking his or her own car in that
lot would be within the course of employment
crossing the street in most jurisdictions.
With equal reason the employee crossing
between plant gate and truck is in the
course of employment.
However, when the employee approaches
the truck from home in the morning, or
leaves the truck at night, the analogy just
invoked does not apply. For reasons
discussed in connection with the main
premises problem, it would be undesirable to
start the dangerous and unending game of
fixing a "reasonable distance" to which
protection is extended. One analogy that
might sometimes apply would be that of the
special hazard necessarily encountered in
the access route. For example, if the
employer's truck stopped at such a point
that the employee necessarily had to cross a
railroad track just after leaving the truck,
the special hazard rule could appropriately
be applied.

* * * * * * *

Approaching these cases on entering and
leaving the employer's conveyance along the
guide lines supplied by specific exceptions
to the main premises rule will make for
precision and consistency, and will avoid
both the vagueness of the "reasonable
distance" concept and the sweeping and
paternalistic implications of the quotation
from the Arkansas case with which this
section began, which seemed to read into the

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cases, to determine liability courts generally look to the

contract that entitled the employee to employer-provided

transportation to and from work. State Highway Commission v.

Saylor, 68 S.W.2d 26 (Ky. Ct. App. 1933); Morris v. Hermann

Forwarding Co., 113 A.2d 513 (N.J. 1955); Sihler, 19 N.E.2d

1008; Oefinger v. Texas Employers' Ins. Ass'n, 243 S.W.2d 469

(Tex. Civ. App. 1951); Ogden Transit Co. v. Industrial

Commission, 79 P.2d 17 (Utah 1938).

We hold that the contract to provide transportation to

Blaustein controls the outcome and that liability in this case

is precluded by the terms of the employment agreement, which

limited the risks Mitre agreed to assume. Mitre did not agree

to provide Blaustein with transportation between her home and

NSF. It only agreed to pay for Blaustein's Metro fare or her

costs to park at NSF. 4 It did not agree to compensate her for

the time she spent en route, or to reimburse her for gas,

mileage costs, or parking at the Metro station. By contract,

Mitre defined the "reasonable margin of time and space," Scott,

150 Va. at 268, 142 S.E. at 402, that formed the employment

simple issuance of a free pass, which could
be utilized at any time, a complete
safe-conduct from the employer's gate,
across city streets, throughout the street
car journey, and, presumably, to the
employee's front door.
4
Blaustein was reimbursed $6.50 for the days she drove to
and parked at NSF, and $5.50 for the days she took the Metro to
NSF.

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environment. It follows from the limitations Mitre placed on

its agreement that Mitre specifically excluded risks that might

arise in places and times remote from the specific

transportation mode it agreed to pay for, to wit, taking the

Metro or parking in the lot adjacent to NSF. Unlike the

agreement in Scott, there was no portal to portal employer

funded transportation contract between Mitre and Blaustein. The

evidence fails to establish in this case an agreement to extend

the coverage for injuries occurring on the employer's "premises"

to the roadway leading to the Metro station. See also Saylor,

68 S.W.2d at 27 (transportation obligation fulfilled once

employee exited employer's vehicle across the road from

employee's house where transportation agreement merely consisted

of the following: "If . . . the men lived along the road and in

the direction of the work to be done, [the employer] would stop

for them at the point nearest their residence and transport them

to the point at which the work at said time was to be done,

transporting them back in like manner when the work was

finished."); Morris, 113 A.2d at 515 (employee denied

compensation for injuries sustained on way home from train

station where "[t]he extent of the defendant's reimbursement of

Morris' traveling expenses was expressly confined by the

agreement between Morris and the defendant to expenses on the

railroad and in Morris' work area and omitted commutation

between Morris' home and the New Brunswick railroad station");

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Oefinger, 243 S.W.2d at 471 (where employer compensated claimant

for bus fare only, injuries held not compensable where claimant

was injured on way home from bus station); Ogden Transit Co., 79

P.2d at 20 (although employer provided claimant with free bus

fare, transportation exception did not extend to injuries

sustained once employee departed bus and was crossing street on

his way home); cf. Barnard, 236 Va. at 47, 372 S.E.2d at 372

(accident held compensable where employee was compensated for

travel time and was paid a mileage allowance); Sihler, 19 N.E.2d

at 1009 (injuries held compensable where employee was injured

while crossing road after departing employer's vehicle; court

distinguished Sihler from similar case in which compensation had

been denied by pointing to a "special agreement" to transport

employee "to his home").

B. The Special Errand Exception

In the alternative, Blaustein contends she was on a

"special errand" on the days she traveled to NSF and, therefore,

her injuries are compensable under the third exception to the

"coming and going" rule. We disagree and find that the "special

errand" exception does not apply in this case.

The "special errand" exception applies when the employee on

his or her way to or from work is charged with some duty or task

in connection with his or her employment. Kendrick v.

Nationwide Homes, Inc., 4 Va. App. 189, 191, 355 S.E.2d 347, 348

(1987). The special errand rule may be described as follows:

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 When an employee, having identifiable time
and space limits on the employment, makes an
off premises journey which would normally
not be covered under the usual going and
coming rule, the journey may be brought
within the course of employment by the fact
that the trouble and time of making the
journey, or the special inconvenience,
hazard, or urgency of making it in the
particular circumstances, is itself
sufficiently substantial to be viewed as an
integral part of the services itself.

Larson, supra, § 14.05[1].

We applied the special errand exception in Harbin v.

Jamestown Village Joint Venture, 16 Va. App. 190, 428 S.E.2d 754

(1993). In Harbin, the claimant was hit by a car and killed

while walking to his supervisor's office, located some distance

away from claimant's normal work site, in order to attend a

special meeting. The claimant regularly worked in Virginia 5 and

had been asked to attend thirteen hearings in the District of

Columbia over a several month period. We found that the

claimant's attendance at the meetings was "not a regular part

of" his job. Id. at 195, 428 S.E.2d at 757. Accordingly, we

found the claimant was on a special errand when he was injured

while traveling to one of the hearings and, therefore, awarded

benefits.

5
Harbin worked on renovation projects at various apartment
complexes owned by the employer. Each project lasted two to six
months. We found that Harbin's "regular work site" was the
project he was working on at the time of his accident. Harbin,
16 Va. App. at 191, 428 S.E.2d at 755.

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 This case may be distinguished from Harbin. As Professor

Larson has stated:

There is less difficulty [in determining
whether an employee is on a special errand]
when the trip is one which is made every
day, is not in itself unusually long or
burdensome, and is not made for the
performance of some such brief
service . . . .

* * * * * * *

If this judgment is to be made accurately in
a close case, several variables must be
taken into account. One is the relative
regularity or unusualness of the particular
journey. If it is relatively regular,
whether every day . . . or at frequent
intervals . . . the case begins with a
strong presumption that the employee's going
and coming trip is expected to be no
different from that of any other employee
with reasonably regular hours and place of
work. . . . The other two principal
variables, however, are the relative
onerousness of the journey compared with the
service to be performed at the end of the
journey.

Larson, supra, § 14.05[3].

Blaustein traveled to NSF almost daily over the fifteen

months preceding her accident. Blaustein's daily commute from

her home to NSF was not a special occurrence, nor was she

charged with any duty or task while traveling to or from NSF.

As the full commission noted, "there is no evidence that the

commute to NSF was significantly onerous, long or burdensome, or

different from the commute to Mitre." Accordingly, we find the

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"special errand" exception to the "coming and going" rule does

not apply in this case.

In sum, we find no exception to the "coming and going" rule

applies in this case. Therefore, we find that Blaustein's

injuries are not compensable under the Workers' Compensation

Act, and we affirm the commission's denial of benefits.

Affirmed.

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