COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Haley and Senior Judge Coleman Argued by teleconference
DELORES GASTON MEMORANDUM OPINION * BY v. Record No. 2770-08-4 JUDGE ROBERT J. HUMPHREYS AUGUST 11, 2009 YUILL BLACK, M.D. AND MICHAEL R. KLETZ, M.D., P.C. AND CONTINENTAL CASUALTY COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Matthew J. O’Herron (Turbitt & O’Herron, P.L.L.C., on brief), for appellant.
(Jennifer G. Capocelli; Law Offices of Roya Palmer Ewing, on brief), for appellees. Appellees submitting on brief.
Delores Gaston (“Gaston”) appeals a judgment of the Workers’ Compensation
Commission (“the commission”) dismissing her claim for benefits from Yuill Black, M.D. and
Michael R. Kletz, M.D., P.C. and Continental Casualty Company (hereinafter “employer”). On
appeal, Gaston contends that the commission erred in: (1) ruling that the grassy area was not an
extension of employer’s premises, and (2) finding that Gaston was walking on the grassy area at
the time of her injury. 1 For the following reasons, we disagree with Gaston and affirm the
decision of the commission.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Gaston also argues that the commission erred in ruling that she did not sustain a compensable injury. However, as Gaston recognizes in her brief, “[t]his question is addressed by the analysis of the first two questions.” “Code § 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.’” K & G Abatement Co. v. Keil, 38 Va. App. 744, 755, 568 S.E.2d 416, 421
(2002) (quoting Code § 65.2-101). “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 & Wallpapering v. Price, 19 Va. App. 158, 160, 449 S.E.2d 500, 501
(1994). However, the factual findings of the commission are “conclusive and binding upon this
Court on appeal,” so long as they are supported by credible evidence in the record. So. Iron
Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993).
“The concepts ‘arising out of’ and ‘in the course of’ employment are not synonymous
and both conditions must be proved before compensation will be awarded.” Marketing Profiles
v. Hill, 17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993) (en banc). The burden rests with the
claimant to prove each condition by a preponderance of the evidence. Id. “The language
‘arising out of’ refers to the origin or cause of the injury while the language ‘in the course of’
refers to the time, place, and circumstances under which the accident occurred.” Briley v. Farm
Fresh, Inc., 240 Va. 194, 197, 396 S.E.2d 835, 836-37 (1990). “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.” Id. In order for an
injury to arise out of employment, it must be the result of a “‘condition of the workplace.’”
Jones v. Colonial Williamsburg Foundation, 10 Va. App. 521, 522, 392 S.E.2d 848, 849 (1990)
(en banc) (quoting County of Chesterfield v. Johnson, 237 Va. 180, 185, 376 S.E.2d 73, 76
(1989)).
-2- Generally, “‘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.’”
Boyd’s Roofing Co., Inc. v. Lewis, 1 Va. App. 93, 94, 335 S.E.2d 281, 282 (1985) (quoting Kent
v. Virginia-Carolina Chem. Co., 143 Va. 62, 66, 129 S.E. 330, 332 (1925)). However, this Court
has recognized an exception to the general rule when the claimant’s injury occurs on an
exclusive way of ingress and egress from the place of employment. See Stone v. Keister’s Mkt.
& Grill, 34 Va. App. 174, 538 S.E.2d 364 (2000); see also Wetzel’s Painting, 19 Va. App. at
160, 449 S.E.2d at 501.
In Brown v. Reed, 209 Va. 562, 565, 165 S.E.2d 394, 397 (1969), the Supreme Court of
Virginia explained that “[t]here is no such thing as [an] ‘instantaneous exit’” from employment.
Rather:
“[E]mployment includes not only the actual doing of 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.”
Id. (quoting Bountiful Brick Co. v. Giles, 276 U.S. 154, 158 (1928)). This principle applies to
employees going to and from lunch just as it does to employees going to and from work. See
Prince v. Pan American World Airways, 6 Va. App. 268, 271, 368 S.E.2d 96, 97 (1988); see also
1 A. Larson, Workmen’s Compensation Law § 15.51 (1985).
Gaston argues that the facts of this case are analogous to those of Prince. We disagree.
In Prince, the claimant was injured when she slipped on an icy walkway just five feet from the
entrance to her employer’s building. The claimant was returning from lunch at the time of her
-3- fall. In reversing the commission, we held that the walkway leading into the office building
“was in practical effect a part of [the employer’s] premises . . . .” Prince, 6 Va. App. at 275, 368
S.E.2d at 99. Therefore, we held that the claimant sustained a compensable injury, because:
[W]hen the workplace is located in an office building, an injury sustained by an employee in that building or on the grounds immediately surrounding the building is generally considered to have taken place on the employer’s premises, even if the employer did not own or lease the particular place where the injury occurred, provided the employer “has some kind of right of passage, as in the case of common stairs, elevators, lobbies, vestibules, concourses, hallways, walkways, ramps, footbridges, driveways, or passageways through which the employer has something equivalent to an easement.”
Id. at 273-74, 368 S.E.2d at 98 (quoting 1 A. Larson, supra at § 15.43) (emphasis added). Thus,
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COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Haley and Senior Judge Coleman Argued by teleconference
DELORES GASTON MEMORANDUM OPINION * BY v. Record No. 2770-08-4 JUDGE ROBERT J. HUMPHREYS AUGUST 11, 2009 YUILL BLACK, M.D. AND MICHAEL R. KLETZ, M.D., P.C. AND CONTINENTAL CASUALTY COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Matthew J. O’Herron (Turbitt & O’Herron, P.L.L.C., on brief), for appellant.
(Jennifer G. Capocelli; Law Offices of Roya Palmer Ewing, on brief), for appellees. Appellees submitting on brief.
Delores Gaston (“Gaston”) appeals a judgment of the Workers’ Compensation
Commission (“the commission”) dismissing her claim for benefits from Yuill Black, M.D. and
Michael R. Kletz, M.D., P.C. and Continental Casualty Company (hereinafter “employer”). On
appeal, Gaston contends that the commission erred in: (1) ruling that the grassy area was not an
extension of employer’s premises, and (2) finding that Gaston was walking on the grassy area at
the time of her injury. 1 For the following reasons, we disagree with Gaston and affirm the
decision of the commission.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Gaston also argues that the commission erred in ruling that she did not sustain a compensable injury. However, as Gaston recognizes in her brief, “[t]his question is addressed by the analysis of the first two questions.” “Code § 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.’” K & G Abatement Co. v. Keil, 38 Va. App. 744, 755, 568 S.E.2d 416, 421
(2002) (quoting Code § 65.2-101). “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 & Wallpapering v. Price, 19 Va. App. 158, 160, 449 S.E.2d 500, 501
(1994). However, the factual findings of the commission are “conclusive and binding upon this
Court on appeal,” so long as they are supported by credible evidence in the record. So. Iron
Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993).
“The concepts ‘arising out of’ and ‘in the course of’ employment are not synonymous
and both conditions must be proved before compensation will be awarded.” Marketing Profiles
v. Hill, 17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993) (en banc). The burden rests with the
claimant to prove each condition by a preponderance of the evidence. Id. “The language
‘arising out of’ refers to the origin or cause of the injury while the language ‘in the course of’
refers to the time, place, and circumstances under which the accident occurred.” Briley v. Farm
Fresh, Inc., 240 Va. 194, 197, 396 S.E.2d 835, 836-37 (1990). “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.” Id. In order for an
injury to arise out of employment, it must be the result of a “‘condition of the workplace.’”
Jones v. Colonial Williamsburg Foundation, 10 Va. App. 521, 522, 392 S.E.2d 848, 849 (1990)
(en banc) (quoting County of Chesterfield v. Johnson, 237 Va. 180, 185, 376 S.E.2d 73, 76
(1989)).
-2- Generally, “‘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.’”
Boyd’s Roofing Co., Inc. v. Lewis, 1 Va. App. 93, 94, 335 S.E.2d 281, 282 (1985) (quoting Kent
v. Virginia-Carolina Chem. Co., 143 Va. 62, 66, 129 S.E. 330, 332 (1925)). However, this Court
has recognized an exception to the general rule when the claimant’s injury occurs on an
exclusive way of ingress and egress from the place of employment. See Stone v. Keister’s Mkt.
& Grill, 34 Va. App. 174, 538 S.E.2d 364 (2000); see also Wetzel’s Painting, 19 Va. App. at
160, 449 S.E.2d at 501.
In Brown v. Reed, 209 Va. 562, 565, 165 S.E.2d 394, 397 (1969), the Supreme Court of
Virginia explained that “[t]here is no such thing as [an] ‘instantaneous exit’” from employment.
Rather:
“[E]mployment includes not only the actual doing of 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.”
Id. (quoting Bountiful Brick Co. v. Giles, 276 U.S. 154, 158 (1928)). This principle applies to
employees going to and from lunch just as it does to employees going to and from work. See
Prince v. Pan American World Airways, 6 Va. App. 268, 271, 368 S.E.2d 96, 97 (1988); see also
1 A. Larson, Workmen’s Compensation Law § 15.51 (1985).
Gaston argues that the facts of this case are analogous to those of Prince. We disagree.
In Prince, the claimant was injured when she slipped on an icy walkway just five feet from the
entrance to her employer’s building. The claimant was returning from lunch at the time of her
-3- fall. In reversing the commission, we held that the walkway leading into the office building
“was in practical effect a part of [the employer’s] premises . . . .” Prince, 6 Va. App. at 275, 368
S.E.2d at 99. Therefore, we held that the claimant sustained a compensable injury, because:
[W]hen the workplace is located in an office building, an injury sustained by an employee in that building or on the grounds immediately surrounding the building is generally considered to have taken place on the employer’s premises, even if the employer did not own or lease the particular place where the injury occurred, provided the employer “has some kind of right of passage, as in the case of common stairs, elevators, lobbies, vestibules, concourses, hallways, walkways, ramps, footbridges, driveways, or passageways through which the employer has something equivalent to an easement.”
Id. at 273-74, 368 S.E.2d at 98 (quoting 1 A. Larson, supra at § 15.43) (emphasis added). Thus,
under Prince, in order for Gaston to establish that she sustained a compensable injury, Gaston had
the burden to prove that she sustained her injury in an area over which “the employer ‘has some
kind of right of passage.’” Id. at 273, 368 S.E.2d at 98. Given the record before us, we cannot
say that the commission was plainly wrong in finding that Gaston did not meet that burden.
Gaston’s testimony is the only evidence in the record in this case. Gaston testified that
she left the office and proceeded down a flight of stairs that led to the building’s main entrance.
Gaston then left the building through the main entrance. At some point, Gaston “went to make a
left turn and tripped over some object,” causing her to fall. Gaston testified that, when she fell,
“[t]he left side of [her] face hit the ground.” (Emphasis added). However, nowhere in her
testimony does Gaston state where she was walking at the time of her fall. By contrast, the facts
of Prince unequivocally show that the claimant was injured “when she slipped and fell on an icy
walkway leading to the building where her employer . . . maintained its offices . . . .” Prince, 6
Va. App. at 270, 368 S.E.2d at 96. Furthermore, in Prince, the facts in the record described in
detail the area in which the claimant was injured: “a walkway extends from the public sidewalk
onto the grounds surrounding the building. At a point on the grounds the walkway divides and -4- leads to two entrances, which are located on opposite sides of the building.” Id. That is not the
case here.
Again, the burden in this case was on Gaston to prove that her injury arose out of and in
the course of her employment. Specifically, Gaston had the burden to establish that the place
where she fell was a walkway, sidewalk or other place where her employer had a “right of
passage.” She failed to meet that burden. Unlike Prince, the record is devoid of any evidence,
whether by testimony, photograph or drawing, that indicates where Gaston was walking at the
time of her fall. Without such evidence, we cannot hold as a matter of law that she was injured
while in an area that “was in practical effect a part of [employer’s] premises” or in an area over
which employer “‘ha[d] some kind of right of passage.’” Id. at 275, 368 S.E.2d at 99. Indeed,
the only evidence Gaston presented and upon which the commission apparently relied, was that
the sprinkler she tripped over was located in a grassy area rather than a walkway or other area of
ingress and egress. Therefore, we cannot say that the commission was plainly wrong in its
factual findings and we affirm its decision in holding that Gaston’s injury was not compensable.
Affirmed.
-5-