COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons ∗ and Frank
Argued at Norfolk, Virginia
NORFOLK COMMUNITY HOSPITAL AND
AIU INSURANCE COMPANY
OPINION BY
v. Record No. 0578-99-1 JUDGE ROBERT P. FRANK
JULY 25, 2000
FRANCES B. SMITH
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
R. John Barrett (Kelly O. Stokes; Vandeventer
Black L.L.P., on briefs), for appellants.
John H. Klein (Montagna, Klein & Camden,
L.L.P., on brief), for appellee.
Norfolk Community Hospital (appellant) appeals the decision
of the Workers' Compensation Commission (commission) awarding
temporary total disability benefits and medical benefits to
Frances B. Smith (appellee). On appeal, appellant contends the
commission erred in: 1) finding appellee's injury arose out of
and in the course of her employment and 2) determining that
appellee's medical records proved ongoing temporary total
disability. We find that appellee's injury did not occur in the
course of her employment and, thus, we do not reach the issue of
∗
Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
ongoing temporary total disability. We, therefore, reverse the
award of the commission.
I. BACKGROUND
Appellee was employed by appellant as a central
registration clerk. On December 22, 1997, appellee parked her
car on appellant's premises when she arrived at work. After
working her normal shift, she clocked out and walked to her car.
She moved her car to an area in front of the emergency room to
pick up a colleague, Dr. Wright, who had asked for a ride.
Appellee walked into the emergency room to look for Dr. Wright.
Dr. Wright was not in the emergency room area, so appellee left
a message for him that she was waiting for him outside in her
car. As she returned to her car, appellee slipped and fell onto
her right knee.
II. ANALYSIS
Initially, appellant contends the issue whether appellee's
injury arose out of her employment was not addressed by either
the deputy commissioner or the full commission and should be
remanded for determination. We find that the deputy
commissioner did address the issue. In a footnote, the deputy
commissioner stated, "[W]e do find that the claimant presented
sufficient evidence from which to conclude that the claimant
slipped and fell due to the wet conditions present in the area
due to rain and that the injury therefore arose out of the
employment." (Emphasis added).
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The deputy commissioner denied appellee's claim for
benefits because he found she did not prove that the accident
occurred in the course of her employment. Appellant concedes it
did not cross-appeal the "arising out of" issue when appellee
sought review by the full commission. The full commission, in
its opinion, noted that it did not address whether the injury
arose out of appellee's employment because the deputy
commissioner's finding on the issue was not appealed.
Rule 3.1 of the Rules of the Commission states, in part, "A
request for review of a decision or award of the Commission
shall be filed by a party in writing with the Clerk of the
Commission within 20 days of the date of such decision or
award." Further, Code § 65.2-705(C) provides that a party may
file an independent application for review fourteen days after
an application for review is filed by an opposing party. See
Code § 65.2-705(C). "Decisions of a deputy commissioner that
are not reviewed by the full commission cannot be brought before
this Court." Duncan v. ABF Freight System, Inc., 20 Va. App.
418, 422, 457 S.E.2d 424, 426 (1995) (citation omitted).
In this case, appellant did not request review of the
deputy commissioner's determination that the injury arose out of
appellee's employment within twenty days of the deputy
commissioner's decision. Further, upon receipt of appellee's
request for review by the full commission, appellant did not
file an independent request for review within fourteen days.
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Thus, the commission did not consider the issue, and the issue
is not properly before us. The deputy commissioner's decision
that appellee proved the injury arose out of her employment will
not be disturbed. We, therefore, review only the commission's
determination that appellee proved the injury occurred in the
course of the employment.
"A finding by the commission that an injury arose out of
and in the course of employment is a mixed question of law and
fact and is properly reviewable on appeal." Wetzel's Painting
and Wallpapering v. Price, 19 Va. App. 158, 160, 449 S.E.2d 500,
501 (1994) (citing Dublin Garment Co. v. Jones, 2 Va. App. 165,
167, 342 S.E.2d 638, 638 (1986)).
In order to receive benefits under the
Workers' Compensation Act, a claimant must
prove by a preponderance of the evidence
that he or she suffered an injury by
accident that arose out of and in the course
of the employment. See County of
Chesterfield v. Johnson, 237 Va. 180, 183,
376 S.E.2d 73, 74 (1989) (holding that
"arising out of" and "in the course of" are
separate and distinct elements).
Bassett-Walker, Inc. v. Wyatt, 26 Va. App. 87, 92, 493 S.E.2d
384, 387 (1997) (en banc). "The claimant can establish that the
injury occurred 'during the course of' the employment by showing
that the injury occurred 'within the period of employment, at a
place where the employee was reasonably expected to be, and
while doing something which was reasonably incident to his
employment.'" McFeely Hardwoods & Lumber v. Miller, 4 Va. App.
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334, 337-38, 358 S.E.2d 178, 179 (1987) (quoting Hercules, Inc.
v. Stump, 2 Va. App. 77, 79, 341 S.E.2d 394, 395 (1986)).
In Brown v. Reed, 209 Va. 562, 165 S.E.2d 394 (1969), the
Supreme Court of Virginia held that the plaintiff's common law
action against the defendant was barred by the provisions of the
Workers' Compensation Act because the accident arose out of and
in the course of the parties' employment. The plaintiff was
injured when he was struck by the defendant's vehicle as he was
walking across the employer's parking lot to punch the time
clock, beginning his workday. See Brown, 209 Va. at 563, 165
S.E.2d at 395-96. The defendant had completed his shift,
showered, and changed his clothes in the company locker room
before he struck the plaintiff as he was backing his vehicle out
of the employer's parking lot. See id. The Court held that the
common law action was barred because both parties were engaging
in behavior anticipated by their employer. See id. at 568, 165
S.E.2d at 399. The Court reasoned that "[t]here is no such
thing as 'instantaneous exit.'" Id. at 565, 165 S.E.2d at 397.
Employees have a reasonable time to exit the employer's
premises, which includes making use of fringe benefits such as
showers, locker rooms, and parking lots. See id. at 566, 165
S.E.2d at 397-98. Furthermore, the Court held that the employer
benefits by providing and encouraging use of such fringe
benefits because they promote good public relations and, in the
case of parking lots, reduce absenteeism, promote timely arrival
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at work, and make employment at the company more attractive.
See id. The Court, therefore, held the accident arose under the
Workers' Compensation Act because both employees were using the
employer's facilities at a time and in a manner encouraged and
anticipated by the employer; thus, the plaintiff's injury arose
out of and in the course of his employment. See id. at 568, 165
S.E.2d at 399.
In Fouts v. Anderson, 219 Va. 666, 250 S.E.2d 746 (1979),
the Supreme Court of Virginia held that the Workers'
Compensation Act did not bar a common law action based on an
accident that occurred in the employer's parking lot after the
plaintiff initially exited the employer's premises. The
plaintiff exited the employer's parking lot after completing his
workday, but, while exiting the lot, he remembered he needed to
get a used carburetor from a fellow employee. See Fouts, 219
Va. at 668, 250 S.E.2d at 747. He drove down the highway,
turned around, and drove back to the employer's parking lot.
See id. The defendant's car struck the plaintiff's vehicle
while the plaintiff was stopped in the employer's parking lot.
See id. The plaintiff argued that his tort action was not
barred by the Workers' Compensation Act because he returned to
the employer's parking lot on a purely personal mission. See
id. The defendant, however, relied on Brown to support his
argument that plaintiff's injuries were compensable under the
Workers' Compensation Act. See id. at 670, 250 S.E.2d at 748.
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The Court rejected the defendant's argument, distinguishing
Brown on the facts. See id. The Court reasoned that there was
no causal connection between the plaintiff's injuries and his
employment because the plaintiff had successfully exited the
parking lot at the completion of his workday. See id. He
re-entered the lot on a personal mission, and, thus, incurred
the risk of injury. See id. Consequently, he was not using the
employer's parking lot for a purpose anticipated by the
employer. Therefore, the accident did not arise out of or in
the course of the plaintiff's employment.
In Briley v. Farm Fresh, Inc., 240 Va. 194, 196-99, 396
S.E.2d 835, 836-37 (1990), the Supreme Court of Virginia held
that the plaintiff's exclusive remedy was under the Workers'
Compensation Act because she was injured on the employer's
premises during a "'brief deviation from a direct departure for
personal shopping.'" The plaintiff was a cake decorator in the
employer's bakery department. See id. at 196, 396 S.E.2d at
836. On the day of the accident, the plaintiff completed her
work in the bakery and told a co-worker that she was leaving.
See id. She removed her uniform jacket, but instead of exiting
the building and going to her car, she decided to do some
personal shopping. See id. While shopping, she fell next to
the store's salad bar and was injured. See id. Plaintiff
argued she should be permitted to maintain her tort action
against the employer because she was not performing work-related
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duties at the time of the accident and was, instead, a business
invitee. See id. at 197, 396 S.E.2d at 836. The Court rejected
the plaintiff's argument and held that the plaintiff's injuries
were covered under the Workers' Compensation Act because the
accident occurred on the employer's premises and "it is to be
anticipated that employees of a supermarket would purchase
merchandise . . . after completing assigned work duties." Id.
at 198, 396 S.E.2d at 837. The Court reasoned that the
plaintiff's injuries arose out of and in the course of her
employment because "the plaintiff was injured at a place where
she was reasonably expected to be while engaged in an activity
reasonably incidental to her employment by [the employer]." Id.
(citation omitted).
Briley merely restates the rule in Brown. In Brown, the
Court held that the plaintiff's injuries were compensable under
the Workers' Compensation Act because they occurred on the
employer's premises and were the result of actions by the
employees that were anticipated and were beneficial to the
employer. Therefore, the employer incurred the risk for the
plaintiff's injuries. In Briley, the Court reasoned that the
plaintiff's injuries arose out of and in the course of her
employment because the employer's premises was the situs of the
accident and the plaintiff was engaging in anticipated behavior
which was beneficial to the employer and reasonably incidental
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to the employment. The employer, therefore, bore the risk of
the plaintiff's injury.
In this case, appellee successfully exited the hospital at
the conclusion of her workday and successfully traversed
appellant's parking lot to her vehicle. Instead of exiting the
premises, she returned to the emergency room entrance to give a
ride to a colleague, a personal errand and a personal favor.
While the commission held that the appellee was performing an
act expected by appellant, we find no evidence in the record to
support the commission's conclusion. 1 There was no evidence that
appellant encouraged ride-sharing or carpooling or anticipated
personal favors by its employees. Furthermore, no evidence in
the record proved that appellant benefited from such activities.
On the facts of this case, we find that appellant did not bear
the risk of appellee's injuries because the task that she was
performing was not during the course of her employment. We,
therefore, reverse the commission's award of benefits to
appellee.
Reversed and final judgment.
1
Findings of fact made by the commission are binding on
appeal if they are supported by credible evidence. See Code
§ 65.2-706; Armstrong Furniture v. Elder, 4 Va. App. 238, 247,
356 S.E.2d 614, 619 (1987). Finding no evidence in the record
to support the commission's conclusion, we are not bound by it
on appeal.
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