COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Salem, Virginia
DOROTHY W. STONE
OPINION BY
v. Record No. 1253-00-3 JUDGE ROBERT P. FRANK
DECEMBER 19, 2000
KEISTER'S MARKET & GRILL AND
NATIONWIDE MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
James A. L. Daniel (Elizabeth B. Carroll;
Daniel, Vaughan, Medley & Smitherman, P.C.,
on brief), for appellant.
Deborah S. O'Toole (Cowan & Owen, P.C., on
brief), for appellees.
Dorothy W. Stone (claimant) contends the Workers'
Compensation Commission (commission) erred in finding that she
did not sustain a compensable injury by accident arising out of
and in the course of her employment. Finding no error, we
affirm the commission's decision.
I. BACKGROUND
The facts are uncontested. On November 17, 1998, claimant
completed her work for Keister's Market & Grill (employer) and
was crossing Westover Drive when a vehicle hit her on the public
highway. She had to cross the highway in order to reach the lot
where her vehicle was parked. Claimant injured her left pelvis,
left wrist, and her forehead when hit by the car, and has been
totally disabled since November 17, 1998. The driver of the
vehicle that hit claimant did not work for employer.
Paula Richardson, one of the owners of employer, offered
the only testimony at the hearing. She testified that at the
time of claimant's accident, she and her husband owned a
building that comprised a strip shopping center. Employer's
premises was located at one end of the shopping center, and
other small businesses rented space from them. She testified
that there were limited parking spaces in front of employer's
business. She stated that her employees were not permitted to
park in front of the shopping center because of the need for
customer parking space. She admitted there was no on-street
parking nearby.
Westover Drive, a four-lane highway, fronts employer's
premises. Directly across Westover Drive from employer's
premises is the parking lot where claimant's vehicle was parked.
The lot is owned by Lucille Richardson, the grandmother of Paula
Richardson's husband. Paula Richardson testified that she and
her husband had permission to use the lot. She testified she
did not pay Lucille Richardson any rent or fee for use of the
lot and she was not aware that the elder Mrs. Richardson ever
charged anyone for use of the lot. The lot was used by a number
of other individuals, including the clients of a tour bus
operator, another grandson of the elder Mrs. Richardson, who
parked his roofing business vehicles there, the other tenants of
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the shopping center, and other individuals in the Westover Hills
community, who, from time to time, received permission to park a
vehicle there. Paula Richardson testified there were no
designated parking spaces and she did not collect fees from her
employees for parking in the lot. She testified she and her
husband did not maintain the lot, but she conceded that on one
occasion in an eight-year period she and her husband cleared
some snow off the lot for their own access. She denied they did
this for the convenience of employer's employees. Employer does
not lease, own, or maintain the lot.
Paula Richardson further testified she told her employees
to park in the lot across the street if they chose to drive to
work. She admitted there was no other place nearby for her
employees to park and stated there was no other way for
employees to get to work "unless they walked to work or [she]
picked them up." She later testified, however, there was no
reason that an employee could not park elsewhere if they chose.
She pointed out that the market was in a residential area and
that employees could park at the home of someone they knew who
lived close by. She considered the lot an alternative to
walking or riding with someone else.
Once claimant left the store, she had no further employment
duties or tasks to perform for employer. Employer did not pay
her for the time after she left the store and did not pay for
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mileage or provide an automobile for her use. Claimant's duties
did not involve driving for employer at any time.
Paula Richardson admitted during her testimony that
claimant had taken the most direct route from employer's
premises to the lot across the street when she was struck. Yet,
no testimony proved that claimant's route was the "sole and
exclusive" way of ingress and egress from employer's premises.
There were no crosswalks or stoplights along Westover Drive in
the immediate vicinity of employer's premises.
After hearing the testimony of Paula Richardson, ore tenus,
the deputy commissioner issued an opinion on December 13, 1999,
in which she ruled claimant was not entitled to benefits for her
injuries because claimant failed to prove her injuries arose out
of and in the course of her employment. The deputy commissioner
held that the "going and coming" rule applied and that the lot
was not a part of the employer's premises. Claimant appealed
the decision to the full commission, which affirmed the ruling
of the deputy commissioner by opinion dated May 15, 2000.
II. ANALYSIS
To recover benefits, the claimant must
establish by a preponderance of the evidence
that [she] suffered an injury by accident
"arising out of and in the course of [her]
employment," Code § 65.2-101, and "that the
conditions of the workplace . . . caused the
injury." Plumb Rite Plumbing Serv. v.
Barbour, 8 Va. App. 482, 484, 382 S.E.2d
305, 306 (1989).
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Falls Church Const. Corp. v. Valle, 21 Va. App. 351, 359-60, 464
S.E.2d 517, 522 (1995). "The phrase arising 'out of' refers to
the origin or cause of the injury." County of Chesterfield v.
Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). "Whether
an injury arises out of the employment is a mixed question of
law and fact and is reviewable by the appellate court." Plumb
Rite, 8 Va. App. at 483, 382 S.E.2d at 305 (citation omitted).
The commission's finding is binding upon us unless we conclude,
as a matter of law, that claimant proved her employment caused
her injury. See Tomko v. Michael's Plastering Co., 210 Va. 697,
699, 173 S.E.2d 833, 835 (1970) (citations omitted).
"As a general rule, '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.'"
Kenrick v. Nationwide Homes, Inc., 4 Va. App. 189, 190, 355
S.E.2d 347, 347 (1987) (citations omitted). The Supreme Court
of Virginia, however, has recognized three exceptions to this
general rule. GATX Tank Erection Co. v. Gnewuch, 221 Va. 600,
603-04, 272 S.E.2d 200, 203 (1980). Therefore, an injury
incurred while going to or from work may be compensable:
"First: Where in going to and from
work the means of transportation is provided
by the employer or the time consumed is paid
for or included in the wages.
"Second: Where the way used is the
sole and exclusive way of ingress and egress
with no other way, or where the way of
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ingress and egress is constructed by the
employer.
"Third: Where the employee on his way
to or from work is still charged with some
duty or task in connection with his
employment."
Id. (citation omitted).
Claimant does not contend that the first and third
exceptions apply. Rather, claimant contends the parking lot is
an extension of employer's premises because it is necessary for
employer’s employees to use the lot. Claimant, therefore,
argues the parking lot is analogous to the "exclusive way of
ingress and egress."
Claimant bears the burden of proving by a preponderance of
the evidence that the exception applies to her claim. Sentara
Leigh Hosp. v. Nichols, 13 Va. App. 630, 636, 414 S.E.2d 426,
430 (1992) (en banc).
Employment is not limited by the walls of the workplace.
[T]here is no concept of "instantaneous
exit" from a place of employment immediately
upon termination of work. [Brown v. Reed,]
209 Va. [562,] 565, 165 S.E.2d [394,] 397
[(1969)]. Quoting from Bountiful Brick Co.
v. Giles, 276 U.S. 154, 48 S. Ct. 221, 72
L.Ed. 507 (1928), we said that employment
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." 209 Va. at 565, 165 S.E.2d
at 397 (internal quotation marks omitted).
Apropos this case and again quoting from
Giles, we stated that if an employee
sustains an injury while passing, with the
express or implied consent of the employer,
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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," id., 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.
Barnes v. Stokes, 233 Va. 249, 252, 355 S.E.2d 330, 331 (1987).
In a review of the appellate cases addressing parking lot
accidents, we first examine Barnes. In Barnes, the claimant was
struck by a motor vehicle operated by a fellow employee in a
private parking lot adjacent to their place of employment. Id.
at 250, 355 S.E.2d at 330. The lot was neither owned nor
maintained by the employer, but the employer was allocated a
portion of the lot, which accommodated all of its employees, and
directed its employees to park in the designated area. Id. at
251, 355 S.E.2d at 331. In finding that the claim was
compensable, the Supreme Court of Virginia held: 1) the injury
occurred in an area specifically allocated to the employer at a
place where the employees were required to park their vehicles
and 2) the claimant's injury was sustained while she passed to
her work, with the consent of the employer, over the premises of
another "'in such proximity and relation as to be in practical
effect a part of the employer's premises.'" Id. at 252-53, 355
S.E.2d at 331-32 (citation omitted).
In denying compensation, we addressed a parking lot
accident in Hunton & Williams v. Gilmer, 20 Va. App. 603, 460
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S.E.2d 235 (1995), where the claimant slipped and fell on ice
that accumulated in a parking garage across the street from the
employer's premises. The employer did not own or maintain the
parking garage. Id. at 604, 460 S.E.2d at 235. The garage was
owned by the employer's landlord. The claimant paid to park in
the garage. Id. at 604-05, 460 S.E.2d at 235. The employer did
not require its employees to park in the garage. Id. at 605,
460 S.E.2d at 235. The claimant paid for her parking privileges
through a payroll withdrawal because the employer was required
to pay the garage fee for its employees by one check. Id. at
604-05, 460 S.E.2d at 235-36. The employer, however, did not
receive a discount for the parking fees and did not subsidize
the cost of parking of its employees. Id. at 605, 460 S.E.2d at
236. No evidence established that the employer's workers were
assigned to a particular location within the garage. Id.
We refused to apply the "extension of the premises"
doctrine beyond the Supreme Court's holding in Barnes. Id. at
607-08, 460 S.E.2d at 237. We wrote that the Barnes decision
was predicated on the employer's authority and control over the
location of the accident. Id. Because there was no evidence
that the employer required its employees to park in the garage
or that the claimant was injured in an area reserved only for
the employer's workers, we found that the claimant failed to
prove that the employer had any control or authority over the
area in which she parked. Id.
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In Ramey v. Bobbitt, 250 Va. 474, 463 S.E.2d 437 (1995),
the plaintiff's decedent was killed on a public street adjacent
to the employer's premises while on the way to work. The
employer did not provide parking for the employees, who
generally parked on public streets. Id. at 476, 463 S.E.2d at
439. The Supreme Court of Virginia held that the public street
was not part of the employer's premises and it was not a place
where the employer expected decedent to be for employment
purposes. Id. at 479, 463 S.E.2d at 440. The Court found that
the case fell within the "going to and from work rule." Id. at
478, 463 S.E.2d at 440.
The claimant prevailed in Reed, 209 Va. 562, 165 S.E.2d
394, where the claimant was injured in a parking lot maintained
by the employer on the employer's property. The Supreme Court
of Virginia held that the parking lot was furnished as an
incident of employment. Id. at 568, 165 S.E.2d 399.
In the present case, the parking lot was neither owned nor
maintained by employer, and claimant was not required to park
there. While employees could not park on the employer's
premises, they could park any other place they chose. Employer
did not pay for employees' parking, did not designate parking
spaces for the employees, and the lot was not used exclusively
by employees. Unlike in Reed, the parking lot was neither owned
nor maintained by employer and its use was not an incident of
employment. Unlike in Barnes, the accident did not occur in an
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area specifically allocated to employer at a place where
employees were required to park.
We agree with the commission's finding:
Further, the claimant has failed to
establish the requisite amount of control of
the employer over the location of the
accident, as required by Barnes and Gilmer.
The employer did not own or maintain the lot
across from its premises, the lot was not
used exclusively by its workers, and no
money was paid by the employer to provide
access to the lot for its employees. The
claimant was not assigned a particular
location in which to park and, although it
might have been difficult for the claimant
to have parked elsewhere, there was no
evidence introduced that some requirement of
her employment made it necessary that she
drive to work and park nearby, as opposed to
walking, receiving a ride to work or parking
at the home of a friend in the neighborhood.
The employer's workers were made aware that
there was limited parking, and the lot was
offered as an alternative if an employee
chose to drive to work. Further, even
assuming that the claimant established the
requisite authority and control, we note
that the accident itself did not occur at
the lot across the street, but on a public
road, that was clearly not within the
employer's control.
For these reasons, we find no error and affirm the
commission's decision. 1
Affirmed.
1
If claimant would have met the criteria of Barnes and its
progeny, the fact that she was injured on a public road leaving
work and going directly to her car would not have defeated her
claim. See Reed, 209 Va. 562, 165 S.E.2d 394.
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