dissenting.
Nichols was among that class of employees who, because her duties required her presence on the public streets, was not subject to the “going and coming rule.” Her injury was, therefore, compensable.
Nichols was a licensed practical nurse whose job required her to travel to homes of ill patients and care for them in their homes. She received her work orders by telephone from her office or in person at her office. She was not required to report to her office each day, and she drove to the patients’ homes in her personal automobile. On the morning of the accident, having received her orders three days earlier, she was on her way to a patient’s home.
Employees, “whose duties to their employers require their presence upon the public streets, either frequently or continuously,” are not subject to the “going and coming rule.” Dreyfus & Co. v. Meade, 142 Va. 567, 576, 129 S.E. 336, 338 (1925). The commission found that Nichols was such an employee, and the facts support such a finding. The fact that she was driving from her home *847to visit her first patient, rather than going from the home of one patient to that of another, makes no difference. See Provident Life & Accident Ins. Co. v. Barnard, 236 Va. 41, 47, 372 S.E.2d 369, 372-73 (1988) (applying an exception — where employer furnishes transportation to the employee — to the “going and coming rule” to a field supervisor returning home from the last site visit at the end of the day).
I also agree with the commission’s conclusion that the employer is estopped from asserting that Nichols had not made reasonable efforts to market her remaining capacity for work. The employer paid compensation to Nichols for almost twenty-two months but did not file a memorandum of agreement. Thus, the commission found that Nichols’ efforts to return to work and the employer’s payment of benefits estopped the employer from now asserting this non-jurisdictional defense. See National Linen Serv. v. McGuinn, 5 Va. App. 265, 272, 362 S.E.2d 187, 191 (1987).
For these reasons I would affirm the commission’s award.