Course of Employment

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COURSE OF EMPLOYMENT

See Arising Out of Employment, Accident

An injury 'occurs in the "course of employment" when it takes place within the period of employment, at a place where the employee may be reasonably expected to be, and while he is fulfilling the duties of his employment or is doing something which is reasonably incidental thereto.'" Lucas v. Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972) (quoting Conner v. Bragg, 203 Va. 204, 207-08, 123 S.E.2d 393, 396 (1962)). Moreover, "compensation under the Act [is] not confined to injuries occurring only during working hours." Id. "If the voluntary act of an employee which causes an injury is sufficiently related to what the employee is required to do in fulfilling his contract of service, or is one in which someone in a like capacity may or must do in the interest of his employer's business, the fact that the employee was not actually required to perform the act will not impair his right to recover compensation." Id. at 564, 186 S.E.2d at 65 (citation omitted).

"'[A]n accident occurs in the 'course of employment' when it takes place within the period of employment, at a place where the employee may be reasonably expected to be, and while [the employee] is reasonably fulfilling the duties of . . . employment or is doing something which is reasonably incidental thereto.'" Thore v. Chesterfield County Bd. of Supervisors, 10 Va. App. 327, 331, 391 S.E.2d 882, 885 (1990)(quoting Conner v. Bragg, 203 Va. 204, 208, 123 S.E.2d 393, 396 (1962)).

The Personal Comfort Doctrine recognizes that an employee seeking to satisfy personal comfort such as periodic rest and refreshment, occasional breaks and excursions for food, drink, rest and restroom visitation acts in the course of employment. Southern Motor Lines v. Alvis, 200 Va. 168, 104 S.E.2d 735 (1958); Ablola v. Holland Rd. Auto Center, Ltd., 11 Va. App. 181, 397 S.E.2d 541 (1990).

The personal comfort doctrine, as applied to workers' compensation claims, in theory has general acceptance among the authorities. Employees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred, or unless, in some jurisdictions, the method chosen is so unusual and unreasonable that the conduct cannot be considered an incident of the employment. 2 Larson, The Law of Workmen's Compensation ch. 21, p. 21-1 (1999). The Virginia Supreme Court has approved the "personal comfort and convenience" doctrine: It is uniformly held that "[a]n injury sustained by an employee while engaged in the performance of an act essential to his personal comfort and convenience, but ultimately for the benefit of the employer, is compensable as 'arising out of' and 'in the course of' the employment." Bradshaw v. Aronovitch, 170 Va. 329, 336, 196 S.E. 684, 686 (1938) (citation omitted).

Personal Comfort Doctrine-Smoking. Professor Larson includes "smoking" as an incidental act of employment, along with resting, washing, seeking fresh air, coolness and warmth. See 1 Larson, The Law of Workmen's Compensation, Sec. 21.04. In Bradshaw v. Aronovitch, 170 Va. 329, 196 S.E. 684 (1938), Justice Eggleston (later Chief Justice Eggleston) cited, with apparent approval, a case that included tobacco use as acts of comfort and convenience: M'Lauchlan v. Anderson, 48 Scot. L.R. 349, 4 B.W.C.C. 376 (1911) (a Scottish workers' compensation case where an employee was injured while attempting to retrieve his smoking pipe)). See Bradshaw, 170 Va. at 337, 196 S.E. at 687. See also Jones v. Colonial Williamsburg Foundation, 8 Va. App. 432, 382 S.E.2d 300 (1989), aff'd on reh'g en banc, 10 Va. App. 521, 392 S.E.2d 848 (1990) (although not a case involving smoking, listing smoking among other personal conveniences); Whiting-Mead Commercial Co. v. Industrial Accident Comm'n, 173 P. 1105, 1106 (1918) (describing use of tobacco as a "solace" in approving award where claimant injured while lighting cigarette). See Cadmus Magazines v. Anthony Williams, Record No. 2182-98-2 (June 29,1999). WP Version.

If an employer would be liable to a third party for an employee's negligent act, the employee acts in the course of his employment. Taylor v. Robertson Chevrolet Co., 177 Va. 289, 13 S.E.2d 326 (1941).

Severe intoxication rendering the employee incapable of engaging in his duties removes the employee from the course and scope of the employment. American Safety Razor Co. v. Hunter, 2 Va. App. 258, 343 S.E.2d 461 (1986).

Upon rehearing en banc, the judgment of the commission is affirmed without opinion by an evenly divided Court. Accordingly, the opinion previously rendered by a panel of this Court on June 29, 1999, see Vaughan's Landscaping & Maintenance v. Dodson, 30 Va. App. 135, 515 S.E.2d 800 (1999), is withdrawn, and the mandate entered on that date is vacated. In Dodson v. Vaughan's Landscaping & Maintenance, VWC File No. 183-34-74 (July 4, 1998) the VWC held that claimant's intoxication did not take the employee outside the scope of his employment. consumed only those alcoholic beverages which were purchased and supplied by his supervisor. We find that claimant had not consumed any alcohol or drugs prior to the start of the work day, nor did he bring any alcohol or drugs to work. At the time of this occurrence, claimant was below the legal drinking age, and his supervisor was aware of that fact. His supervisor was not only the claimant's direct supervisor, but was also the owner and sole proprietor of the business. The VWC found that his supervisor bought wine and beer, and gave it to claimant to consume. He thereby illegally promoted and facilitated the under age claimant's consumption of alcoholic beverages. Having provided the alcohol, the employer obviously encouraged and condoned the claimant's conduct, and will not now be heard to assert the claimant's intoxication as a defense to his claim for benefits. Vaughan's Landscaping v. Timothy Dodson, Record No. 1667-98-4 (June 20, 2000). WP Version. Summary of Panel Decision: Claimant's severe intoxication had removed him from the course of his employment at the time of his accident. [A]n employee may abandon his employment by reaching an advanced state of intoxication which renders the employee incapable of engaging in his duties. This result is not based upon a special statutory defense of intoxication. Rather, a severely intoxicated employee has removed himself from the scope of his employment. Any injuries thereafter suffered are not "in the course of" the employment. American Safety Razor Co. v. Hunter, 2 Va. App. 258, 261, 343 S.E.2d 461, 463 (1986) (citing 1A A. Larson, The Law of Workmen's Compensation Sec. 34.21 (1985)). A claimant's voluntary intoxication may remove the claimant from the scope of his or her employment at the time of the accident when such condition renders the claimant incapable of performing his or her job duties. Stated differently, although a claimant's state of intoxication might not have contributed directly to an accident, the claimant may remove himself or herself from the course of employment by his or her self-induced intoxication. Claimant had a .21 blood alcohol level approximately five to six hours after he began drinking and approximately two hours after the accident. As a matter of law at the time of the accident, claimant's intoxication rendered him incapable of performing his job duties, assuming he had any duties remaining that day. The totality of the evidence proved that claimant's severe intoxication, resulting from the willing consumption of alcohol provided by his employer, while not engaged in any work-related duty or function, effectively removed him from the scope of his employment hours before the accident. Accordingly, the injury he sustained in the accident did not occur in the course of his employment, and therefore, is not compensable. Vaughan's Landscaping & Maintenance, etc. v. Dodson, Record No. 1667-98-4 (June 29,1999). WP Version.

Animal bites. Bites are compensable only if the character or nature of the work reasonably exposed or subjected claimant to a bite by the animal. Lipsey v. Case, 248 Va. 59, 445 S.E.2d 105 (1994). In Lipsey v. Case, 248 Va. 59, 445 S.E.2d 105 (1994), claimant was a "working student." In exchange for performing duties on the farm, she received instruction on farm operation, riding lessons, and room and board. She shared living facilities with two other working students. A dog belonging to one of these students bit Lipsey on her face during a lunch break at the house. The Court held that while the injury occurred in the course of the employment it did not arise out of the employment. The Court found no causal connection between claimant's required work and her injury. See id. at 61-62, 445 S.E.2d at 107. Although the dog lived in the house and freely roamed the farm, the employer did not direct claimant to have physical contact with the dog.

Animal Bite. Claimant was an assistant school principal who was directed by the principal of the school, her supervisor, to go to a car in which the principal's daughter had brought a dog and "meet the dog." The assistant principal did so and the dog bit her on the nose. Claimant's contact with the dog, although not a part of her regular work duties, was in direct response to a demand of her supervisor. Thus, the commission did not err in concluding that claimant's evidence proved that her "injury resulted from an actual risk of her employment." In Arrington v. Murray, 182 Va. 1, 28 S.E.2d 19 (1943), the Supreme Court held that an injury arises out of the employment when the employee is performing work directed by one of the business partners, even if the work was not in the trade, business, or occupation of the employer but was personal to the partner and performed at his residence. See id. at 5, 28 S.E.2d at 20-21. The Supreme Court agreed with the commission that it would be inequitable to allow an employer to direct an employee to perform work and then deny that the employee was protected by the Virginia Workers' Compensation Act. See id. at 5, 28 S.E.2d at 21. Where the employee is injured while performing an activity that the employer has instructed him or her to do, that work constitutes part of an employee's employment responsibilities and required work, even though different from his or her usual and regular tasks performed in the employer's business. See Honaker & Feeney v. Hartley, 140 Va. 1, 13, 124 S.E. 220, 223 (1924). As one authority has noted, activity that is not an integral or normal part of the job becomes such where the employer's request clearly conveys the understanding that the employee was to take part in the activity. See 2 Arthur Larson, Larson's Workers' Compensation Law, Sec. 22.04(2) (1999). Prince William County School Board v. Fogarty, Record No. 1866-98-4 (August 31, 1999). WP Version.

Death Presumption. Where an employee is found dead as the result of an accident at his place of work or near by, where his duties may have called him during the hours of his work, and there is no evidence offered to show what caused the death or to show that he was not engaged in his master's business at the time, the court will indulge the presumption that the relation of master and servant existed at the time of the accident, and that it arose out of and in the course of his employment. Sullivan v. Suffolk Peanut Co., 171 Va. 439, 444, 199 S.E. 504, 506 (1938). However, the death presumption applies only if there is an absence of evidence contrary to the conclusion that the death arose out of the employment. See Hopson v. Hungerford Coal Co., Inc., 187 Va. 299, 305, 46 S.E.2d 392, 394 (1948).

Death Presumption. The Workers' Compensation Commission did not err in finding that Keith Fitzgerald Marshall's unexplained death arose in the course of his employment. Employer employed Marshall as its cultural and educational activities director. Marshall's duties included supervising children in the aquatic center and serving as the lifeguard. After Marshall supervised an open swim session for a group of children, he sent the children to the locker room to change. This was the last swim session of the day and the children were responsible for getting from the pool to the next area of the club on their own. After that session ended, Marshall was expected to "return to the front counter area and do general supervision of the children and interact with the parents as they came in" to get their children. Shortly after the children went to the locker room, however, Marshall was discovered unconscious in the pool. no one witnessed the incident. As a trained lifeguard, Marshall was "responsible for the safety and well-being of all [their] patrons." Marshall informed the executive director some weeks prior to his death that he had been "trying to increase the length that he could swim underwater in the pool." The executive director testified that although Marshall had responsibility for pool maintenance, endurance swimming was not one of Marshall's assigned duties.
    Code Sec. 65.2-101 requires a person who claims benefits under the Workers' Compensation Act to prove an "injury by accident arising out of and in the course of the employment." [T]he language "in the course of" refers to the time, place, and circumstances under which the accident occurred. An accident occurs during the course of the employment if it takes place within the period of employment, at a place where the employee may reasonably be expected to be, and while the employee is reasonably fulfilling the duties of the employment or is doing something reasonably incidental to it. Briley v. Farm Fresh, Inc., 240 Va. 194, 197, 396 S.E.2d 835, 836-37 (1990) (citation omitted). The Supreme Court long ago adopted the following rule: [W]here an employee is found dead as the result of an accident at his place of work or near-by, where his duties may have called him during the hours of his work, and there is no evidence offered to show what caused the death or to show that he was not engaged in his master's business at the time, the court will indulge the presumption that the relation of master and servant existed at the time of the accident and that it arose out of and in the course of his employment. Southern Motor Lines v. Alvis, 200 Va. 168, 171-72, 104 S.E.2d 735, 738 (1958).
    Credible evidence establishes that Marshall drowned while at work. He had released children from the pool to shower shortly before he drowned in the pool. The commission drew the inference from the circumstances and Marshall's duties as a lifeguard, that his activities in and around the pool before the children left the shower room related to what he was employed to do. Although the executive director testified that underwater endurance swimming was not one of Marshall's "duties," we cannot say the commission erred in finding that this testimony was not probative of whether that activity bore a relation to Marshall's conditioning and skills as a lifeguard. Accordingly, the commission's ruling is affirmed that the unexplained death presumption was applicable and that the evidence did not rebut the presumption.
    Credible evidence in the record proved, without application of the presumption, that Marshall's death arose in the course of his employment. An employee's personal activities at work may, under certain circumstances, fall within the course of employment. Even though the activity from which the injury arises has no direct relationship to the employment, yet if it is a common practice among the employees, is acquiesced in by the employer, if the employer has allowed the employee to use the employer's tools and facilities, if the accident occurs during working hours, and if the accident occurs during a lull in regular work so that the questioned activity does not interfere with the employee's duties, such considerations have been held to bring the employee's activities in his own behalf within the scope of employment. Ablola v. Holland Road Auto Center, 11 Va. App. 181, 184, 397 S.E.2d 541, 543 (1990). The commission found that Marshall's swim in the pool occurred during his normal working hours and a lull in his schedule. The commission also found that his swim did not interfere with his other duties. The evidence proved the executive director was aware of Marshall's swimming activity, and no evidence indicated he voiced disapproval. Moreover, the commission could reasonably infer from the evidence that Marshall's "activity had more than an incidental benefit to the employer," who depended upon Marshall's lifeguarding skills. It is apodictic that a lifeguard's swimming skills above and below water are integral to his employment responsibilities. Thus, credible evidence in the record supports the commission's ruling that Marshall's death arose in the course of his employment.
    The commission had authority to order employer to secure the appointment of a guardian so that the payment of compensation benefits to Marshall's minor dependent "may commence forthwith." "In addition to its statutorily granted powers, the commission also has incidental powers which are reasonably implied as a necessary incident to its expressly granted powers for accomplishing the purposes of the Workers' Compensation Act." Bader v. Norfolk Redev. & Hous. Auth., 10 Va. App. 697, 702, 396 S.E.2d 141, 144 (1990). Code Sec. 65.2-525(c) requires that whenever payment of compensation over $300 is due to a minor, the payment shall be made to the guardian of the property of the minor or to such suitable person appointed by the circuit court as trustee. The commission did not abuse its discretion in requiring the employer to take necessary action to assure the forthwith payment of the awarded compensation benefits. Boys and Girls Club v. Keith Marshall, Record No. 0264-01-4 (October 30, 2001). WP Version.

The Supreme Court of Virginia drew a "bright line" at the employer's door in Brown v. Reed, 209 Va. 562, 565, 165 S.E.2d394, 397 (1969), when it held that if an employee is injured while going to and from his work and while on the employer's premises, the injury is treated at law as though it happens while the employee is engaged in his work at the place of its performance. See also Jones v. Colonial Williamsburg Found., 8 Va. App. 432, 437-38, 382 S.E.2d 300, 303 (1989), aff'd en banc, 10 Va. App. 521, 392 S.E.2d 848 (1990). Virginia is among a majority of states that now consider parking lots owned by the employer or maintained by the employer for its employees part of the "premises," whether within or separated from company premises. See 1 Arthur Larson, The Law of Worker's Compensation, Sec. 15.42(a), 4-104 (1995); see also Reed, 209 Va. at 565, 165 S.E.2d at 397; Painter v. Simmons, 238 Va. 196, 380 S.E.2d 663, 665 (1989). In Barnes v. Stokes, 233 Va. 249, 355 S.E.2d 330 (1987), the Supreme Court affirmed a circuit court ruling barring a personal injury suit brought by an employee who was injured when struck by a motor vehicle operated by a fellow employee in a parking lot adjacent to their place of employment while both were departing from work. The Court extended the exception to the general rule of "going and coming" to cover a section of a parking lot that was neither owned nor maintained by the employer, but was used exclusively, at the owner's direction, by the employees of the employer. The Court held that the employee's exclusive remedy was under the Worker's Compensation Act because she sustain[ed] an injury while passing, with the express or implied consent of the employer, to and from [her] work by a way . . . "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, 355 S.E.2d at 331.

In Jones v. Colonial Williamsburg Foundation, 10 Va. App. 521, 392 S.E.2d 848 (1990)(en banc), we affirmed the principle that once an employee is on the employer's premises with the intent to begin his or her services for the employer, injuries occurring thereon may be compensable. See id. at 523-24, 392 S.E.2d at 850. "[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 the employment as much as though it had happened while the employee was engaged in his work at the place of its performance. In other words, the employment may begin in point of time before the work is entered upon and in point of space before the place where the work is to be done is reached." Brown v. Reed, 209 Va. 562, 565, 165 S.E.2d 394, 397 (1969) (quoting Bountiful Brick Co. v. Giles, 276 U.S. 154, 158 (1928)). See 1 Larson, The Law of Workmen's Compensation Sec.13.01. This principle applies equally to injuries sustained by an employee on the employer's premises when returning to work from a designated meal break. See Prince v. Pan American World Airways, 6 Va. App. 268, 272, 368 S.E.2d 96, 97-98 (1988) (finding a compensable injury where the claimant was injured when she slipped on the walkway leading to the building where she worked as she was returning to work from her lunch break). Claimant, while on his lunch break, went to a friend's car parked on the company parking lot to smoke inside the car. The parking lot is part of employer's premises. The lot is enclosed by a fence, and access is controlled by employer's security guards. The general public has no right to use the lot. At no time did claimant leave the company parking lot. At the conclusion of the lunch break, after smoking two cigarettes, claimant attempted to return to work. Because he was late returning to work, or because it was raining, claimant ran back to the main entrance. As he was hurrying up the wet and slippery concrete steps on the way to his place of work, claimant slipped and fell, injuring his knee. During his entire lunch period, claimant remained on employer's premises in a and was injured on those premises as he attempted to return to perform defined services for employer. There is no evidence in this record from which we could conclude that employer disapproved of claimant using his free time to smoke while remaining on employer's premises, so long as it did not occur within the building where claimant performed his services for employer. Virginia has not declared smoking to be illegal, and claimant was not injured while committing a dangerous or unreasonable act. Employer failed to prove that claimant's actions were so unreasonable and dangerous that it could reasonably be inferred that claimant intended to abandon his job when he elected to smoke inside a car parked on employer's private parking lot. Cadmus Magazines v. Anthony Williams, Record No. 2182-98-2 (June 29,1999). WP Version.

Work Ordered by Supervisor Outside Usual Duties. In Arrington v. Murray, 182 Va. 1, 28 S.E.2d 19 (1943), the Supreme Court held that an injury arises out of the employment when the employee is performing work directed by one of the business partners, even if the work was not in the trade, business, or occupation of the employer but was personal to the partner and performed at his residence. See id. at 5, 28 S.E.2d at 20-21. The Supreme Court agreed with the commission that it would be inequitable to allow an employer to direct an employee to perform work and then deny that the employee was protected by the Virginia Workers' Compensation Act. See id. at 5, 28 S.E.2d at 21. Where the employee is injured while performing an activity that the employer has instructed him or her to do, that work constitutes part of an employee's employment responsibilities and required work, even though different from his or her usual and regular tasks performed in the employer's business. See Honaker & Feeney v. Hartley, 140 Va. 1, 13, 124 S.E. 220, 223 (1924). As one authority has noted, activity that is not an integral or normal part of the job becomes such where the employer's request clearly conveys the understanding that the employee was to take part in the activity. See 2 Arthur Larson, Larson's Workers' Compensation Law, Sec. 22.04(2) (1999). Prince William County School Board v. Fogarty, Record No. 1866-98-4 (August 31, 1999). WP Version.

Substantial deviation from mandated route. The commission did not err in finding the claimant's accident did not occur in the course of his employment. "'[A]n accident occurs in the "course of employment" when it takes place within the period of employment, at a place where the employee may be reasonably expected to be, and while he is reasonably fulfilling the duties of his employment or is doing something which is reasonably incidental thereto.'" Thore v. Chesterfield County Bd. of Supervisors, 10 Va. App. 327, 331, 391 S.E.2d 882, 885 (1990) (citations omitted). The issue of whether employer had instructed claimant to drive his truck on a specific route and whether, at the time of his accident, claimant had substantially deviated from that route, thereby removing him from the course of his employment, depended solely upon the credibility of the witnesses. The claimant testified at the Hearing that he was at the accident location as a result of the route he took pursuant to the employer's instructions. This represents a factual conflict that was decided by the Deputy Commissioner adversely to the claimant. The claimant has not alleged that he was on the entry ramp for personal comfort. He has not even testified to a minor deviation. On the contrary, the claimant's substantial deviation from the employer-directed route led to the location of the accident. . . . At the time of the accident, the claimant had not yet returned to the roadway which the employer required him to travel. Instead, he was traveling a route which the Deputy Commissioner found that the employer had expressly forbidden. Grimes v. Janney-Marshall Co., 183 Va. 317, 32 S.E.2d 76 (1944) (claimant's deviation, without permission, from employer-mandated route rendered injuries sustained in truck accident not compensable). Patrick Frank Bryan v. Highway Carriers, Record No. 1800-98-2 (October 19, 1999). WP Version.

The commission did not err in finding that (1) the decedent, a cab driver, left the scope of his employment and the protection of the Workers' Compensation Act ("the Act") when he broke employer's rules; and (2) the presumption contained in Southern Motor Lines v. Alvis, 200 Va. 168, 104 S.E.2d 735 (1958), was not applicable to this case. A claimant must prove that an injury arose out of and in the course of his employment to qualify for any benefits under the Act. See Pinkerton's, Inc. v. Helmes, 242 Va. 378, 380, 410 S.E.2d 646, 647 (1991). An act is within the scope of the employment relationship if "(1) it be something fairly and naturally incident to the business, and (2) if it be done while the servant was engaged upon the master's business and be done, although mistakenly or ill-advisedly, with a view to further the master's interests, or from some impulse or emotion which naturally grew out of or was incident to the attempt to perform the master's business, and did not arise wholly from some external, independent, and personal motive on the part of the servant to do the act upon his own account." Smith v. Landmark Communications, Inc., 246 Va. 149, 151-52, 431 S.E.2d 306, 307-08 (1993) (citations omitted). Employer's written rules required that its cab drivers obey the dispatcher's instructions regarding picking up passengers at a designated location and that they were not permitted to pick up passengers unless assigned by the dispatcher or located at a cab stand. Credible evidence also established that the decedent was made aware of employer's rules before his death. Decedent disregarded his dispatcher's instructions and picked up two passengers who flagged him down. The commission could reasonably conclude that the decedent was not engaged in an activity fairly and naturally incidental to employer's business immediately prior to his death. Rather, the evidence permitted the inference that the decedent broke employer's rules and removed himself from the scope of his employment before his death, regardless of what occurred thereafter. Claimant's evidence did not prove as a matter of law that the decedent was acting in the course of his employment at the time of his death. In Southern Motor Lines Co. v. Alvis, 200 Va. 168, 104 S.E.2d 735 (1958), the Supreme Court recognized the following presumption: [W]here an employee is found dead as the result of an accident at his place of work or near-by, where his duties may have called him during the hours of his work, and there is no evidence offered to show what caused the death or to show that he was not engaged in his master's business at the time, the court will indulge the presumption that the relation of master and servant existed at the time of the accident and that it arose out of and in the course of his employment. Id. at 171-72, 104 S.E.2d at 738. However, "[w]here liability is imposed on the employer on presumptive evidence to the effect that the death arose out of the employment, there must be an absence of contrary or conflicting evidence on the point and the circumstances which form the basis of the presumption must be of sufficient strength from which the only rational inference to be drawn is that death arose out of and in the course of the employment." Winegar v. Int'l Telephone & Telegraph, 1 Va. App. 260, 263, 337 S.E.2d 760, 761 (1985) (quoting Hopson v. Hungerford Coal Co., 187 Va. 299, 305, 46 S.E.2d 392, 395 (1948)). In this case, contrary and conflicting evidence existed with respect to the circumstances surrounding the decedent's death. Credible evidence supports the commission's inference that prior to the decedent's death, he left the scope of his employment when he willfully violated employer's rules and went on a frolic of his own. That is, the decedent was not "where his duties . . . called him" at the time of his death, rendering the presumption inapplicable. Here, unlike Alvis, credible evidence supports the rational inference that the decedent's death did not occur in the course of or arise out of his employment. Accordingly, the commission did not err in refusing to apply the Alvis presumption. Karen D. Mallory v. William Tyler, UEF, Record No. 1226-99-2 (January 27, 2000). WP Version.

Claimant's injury did not occur in the course of her employment. Claimant parked her car on employer'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. Claimant walked into the emergency room to look for Dr. Wright. Dr. Wright was not in the emergency room area, so claimant left a message for him that she was waiting for him outside in her car. As she returned to her car, claimant slipped and fell onto her right knee. 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. 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 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. 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 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 to the employment. The employer, therefore, bore the risk of the plaintiff's injury. In this case, claimant successfully exited the hospital at the conclusion of her workday and successfully traversed employer'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 claimant was performing an act expected by employer, there is no evidence in the record to support the commission's conclusion. There was no evidence that employer encouraged ride-sharing or carpooling or anticipated personal favors by its employees. Furthermore, no evidence in the record proved that employer benefited from such activities. On the facts of this case, we find that employer did not bear the risk of claimant's injuries because the task that she was performing was not during the course of her employment.

Norfolk Community Hospital v. Frances Smith, Record No. 0578-99-1 (July 25, 2000). WP Version.

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