Robert George Woodward v. Hardee's, etc.

• Court: Court of Appeals of Virginia
• Decided: August 13, 1996
• Docket: 0504963
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

ROBERT GEORGE WOODWARD MEMORANDUM OPINION * v. Record No. 0504-96-3 PER CURIAM AUGUST 13, 1996 HARDEE'S/BODDIE NOELL ENTERPRISES, INC.

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Susan D. Oglebay, on brief), for appellant. (Linda Davis Frith; Monica L. Taylor; Gentry, Locke, Rakes & Moore, on brief), for appellee.

Robert George Woodward contends that the Workers'

Compensation Commission erred in finding that the accident in

which his wife, Joyce Woodward, died did not arise out of and in

the course of her employment. Woodward argues that the

decedent's accident arose out of and in the course of her

employment under the "special errand doctrine" or the "personal

comfort doctrine" or some other exception to the "coming and

going" rule. Upon reviewing the record and the briefs of the

parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision. Rule

5A:27.

Background

The decedent worked as a breakfast manager at employer's

restaurant. On May 19, 1993, the decedent worked from 4:00 a.m. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. to 11:59 a.m. She left her workplace and drove home. The drive

from her workplace to her home took approximately one-half hour.

She had to return to her workplace at 2:00 p.m. for a manager's

meeting. Returning to the meeting, the decedent fell asleep

while driving and died as a result of a single automobile

accident.

Shift managers were required to attend a manager's meeting

once per month. Employer allowed managers to wait in the

restaurant's main dining room after their work shift until the

meeting time if they wished to do so. Employer paid managers for

their time spent at the manager's meetings and required them to

clock in when the meeting started and to clock out when the

meeting ended. Employer did not pay managers for time spent

traveling to the meetings or waiting in the restaurant before the

meeting started.

Special Errand Doctrine

"Whether an accident arose out of and in the course of

employment is a mixed question of law and fact and is properly

reviewable on appeal." Kendrick v. Nationwide Homes, Inc., 4 Va.

App. 189, 190, 355 S.E.2d 347, 347 (1987). Woodward bore the

burden of proving that the decedent's accident arose out of and

in the course of her employment. Id.

As a general rule, injury or death which occurs while an

employee is traveling to or from work is not compensable.

Sentara Leigh Hosp. v. Nichols, 13 Va. App. 630, 636, 414 S.E.2d

2 426, 429 (1992) (en banc). This rule, the "coming and going"

rule, is premised upon the principle that an employee traveling

to or from his workplace "is not engaged in performing any

service growing out of and incidental to his employment."

Kendrick, 4 Va. App. at 190, 355 S.E.2d at 347.

The special errand doctrine, an exception to the "coming and

going" rule, provides: "When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself."

Harbin v. Jamestown Village Joint Venture, 16 Va. App. 190,

193-94, 428 S.E.2d 754, 756 (1993) (citation omitted). This

doctrine applies where "the employee is given 'a temporary,

special assignment . . . [which] was outside the normal

performance of [the employee's] duties, and it clearly

represented a special benefit to the [employer].'" Id. at 195-

96, 428 S.E.2d at 757 (citation omitted).

The decedent was not on a special errand for the benefit of

her employer while she traveled back to her usual place of

employment to attend the manager's meeting. The meeting was a

part of her regular employment duties and did not constitute an

additional task or special assignment. The decedent's travel to

3 her employer's premises falls within the "going and coming rule"

because she had not embarked on an "off-premises" journey at the

direction of or for the benefit of her employer.

Harbin, relied upon by Woodward, is distinguishable from

this case. Unlike Harbin, the decedent was not required to be

away from her employer's place of employment while performing a

duty assigned by the employer. Accordingly, the commission did

not err in finding that the special errand doctrine did not apply

to the circumstances of this case. Personal Comfort Doctrine

Under the personal comfort doctrine "occasional breaks and

excursions for food, drink, rest and restroom visitation are

deemed to be in the course of employment." Ablola v. Holland

Road Auto Center, Ltd., 11 Va. App. 181, 183, 397 S.E.2d 541, 542

(1990). The doctrine applies only if "'the employee uses the

facilities furnished to him by the employer, or does not depart

from the employer's premises, or go to some place thereon where

he has no right to be.'" Kraf Constr. Servs., Inc. v. Ingram, 17

Va. App. 295, 299, 437 S.E.2d 424, 427 (1993) (citation omitted).

Assuming the decedent sought personal comfort by travelling

home before the meeting, she did not do so at facilities

furnished by employer or on employer's premises. Accordingly,

the commission did not err in finding that the personal comfort

doctrine did not apply to the circumstances of this case.

Other Exception

4 Woodward argues that, even if the special errand and the

personal comfort doctrines do not apply, the commission erred by

not creating a new exception to the "coming and going" rule

because of the peculiar demands of the decedent's employment. We

find no support in the Act or the case law for such a contention.

Because Woodward failed to prove that any exception to the

"coming and going" rule applied to the circumstances of this

case, the commission did not err in finding that Woodward's

evidence did not prove that the decedent's accident arose out of

and in the course of her employment. For these reasons, we affirm the commission's decision.

Affirmed.