COURT OF APPEALS OF VIRGINIA
Present: Judges Chaney, Callins and White PUBLISHED
Argued at Alexandria, Virginia
UNITED CONTINENTAL HOLDINGS, INC. OPINION BY v. Record No. 0164-23-4 JUDGE DOMINIQUE A. CALLINS JANUARY 23, 2024 MOLLY SULLIVAN
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Jennifer Ramey Helsel (Danielle A. Takacs; Franklin & Prokopik, P.C., on brief), for appellant.
Kathleen Grace Walsh (Law Office of Kathleen Grace Walsh, on brief), for appellee.
United Continental Holdings, Inc., appeals the Commission’s judgment awarding Molly
Sullivan temporary total disability benefits and medical benefits for her left ankle, right knee, and
right arm injuries. United argues that the evidence failed to prove that Sullivan sustained a
compensable injury by accident that arose out of and in the course of her employment. Finding no
error, we affirm the Commission’s judgment.
BACKGROUND
In June 2021, Sullivan worked as a customer service representative for United Airlines at
the Dulles Airport. In the past, airline employees parked in lots some distance from the terminal.
Buses then transported the employees from those parking lots to the airport’s terminal. After the
COVID-19 pandemic, however, employees began parking in Garage 2, a lot located closer to the
terminal and typically used by airport customers and the public. Although employees could park in
other lots, the Metropolitan Washington Airport Authority (“MWAA”) provided free parking for
employees in Garage 2. To access the airport terminal from Garage 2, employees could either walk along a covered
walkway that extended from the garage’s third level, or they could leave through the garage’s first
floor exit and walk across a street to enter the airport. United employees would clock into work on
the third level of the terminal, so using the walkway was generally the most direct route for United
employees. Sullivan also preferred the walkway because it avoided vehicular traffic.
The walkway connected to the garage by a “silver threshold.” The walkway then extended
for 80 yards away from the threshold before turning right and ending about 30 feet from the United
terminal entrance. It existed as a single path between Garage 2 and the section of the terminal to
which United employees reported, and it had no connecting or branching walkways leading to
alternate locations of the garage or the terminal. The MWAA owned, operated, and maintained the
garage, the walkway, and other areas surrounding the terminal. United was not responsible for the
walkway’s maintenance.
On June 20, 2021, Sullivan parked in Garage 2 and entered the third-floor walkway to reach
the terminal. After passing the silver threshold, she slipped on water, “twisted [her] left foot,” and
fell, striking her right knee and arm. An ambulance transported Sullivan to a local hospital; she later
received follow-up care from her primary care physician and an orthopedist for injuries to her left
foot, right knee, and right arm. She participated in physical therapy, and her primary care physician
released her to full duty at work on September 20, 2021.
Sullivan filed a claim seeking temporary total disability benefits from the date of injury
through her return to full duty and seeking medical benefits for her injuries. The parties stipulated
that Sullivan was totally disabled during the claimed timeframe, but United contested that Sullivan
had sustained a compensable injury. After a hearing, the deputy commissioner ruled that Sullivan’s
injury did not arise in the course of her employment. The deputy commissioner found that “the
subject walkway was not the sole means of ingress and egress to her place of employment,” the
-2- employer did not control the parking garage or the walkway, and Sullivan was not required to park
there. The deputy commissioner further found that the area where Sullivan fell was not sufficiently
near the entrance to United’s terminal so that the area was an extension of United’s premises.1
On review, the Commission reversed the deputy commissioner’s judgment. The
Commission found that, under the extended premises doctrine, an employee may suffer a
compensable injury even though the accident was on property not owned by the employer because
the property was “in such proximity and relation to the space leased by the employer as to be in
practical effect the employer’s premises.” Considering the configuration of the garage and the
walkway in relation to the Dulles Airport, the Commission found that the accident was in sufficient
proximity to the terminal that it occurred on United’s extended premises.2 Accordingly, the
Commission remanded the matter to the deputy commissioner to determine whether Sullivan’s
injuries were otherwise compensable.
On remand, the deputy commissioner found that Sullivan suffered a compensable injury by
accident and awarded her temporary total disability benefits for the claimed timeframe and medical
benefits for the left ankle, right knee, and right arm injuries. United requested that the Commission
review the deputy commissioner’s judgment, challenging only the Commission’s prior ruling that
the injury arose in the course of Sullivan’s employment, and specifically, the Commission’s
application of the extended premises doctrine. Relying on its previously stated grounds, the
Commission affirmed the judgment of the deputy commissioner.
1 In so finding, the deputy commissioner contrasted the facts with those presented in an unpublished opinion of this Court, Cap. Area Pediatrics, Inc. v. Eken, No. 1557-12-4, 2013 WL 1897827 (Va. Ct. App. May 7, 2013). 2 One commissioner dissented, emphasizing that the accident occurred more than 80 yards from the terminal. -3- United appeals to this Court, arguing that the Commission erred by finding that Sullivan’s
injury occurred in the course of her employment. United maintains that the extended premises
doctrine does not apply because Sullivan slipped on a walkway that was more than 80 yards from
the terminal and connected to a parking lot that United had “no control over.” Accordingly, United
asks this Court to reverse the Commission’s judgment.
ANALYSIS
Liability under the Workers’ Compensation Act is distinct from traditional tort liability.
Thus, we find it necessary to consider the purpose of the law. “The Workers’ Compensation
Act, now over a century old, ‘reflects a legislative “quid pro quo” that gave workers the right to
assert no-fault liability against their employers . . . and took from them the right to sue their
employers in tort for negligence.’” Lopez v. Intercept Youth Servs., Inc., 300 Va. 190, 196
(2021) (quoting Jeffreys v. Uninsured Emp.’s Fund, 297 Va. 82, 93 (2019)). “To be effective,
the Act must be interpreted to maintain that delicate balance of competing policies.” Id. “A
view of the Act’s coverage that is too broad would authorize an award of compensation benefits
but would bar a tort recovery, and a view that is too narrow would authorize a tort recovery but
would bar an award of compensation benefits.” Jeffreys, 297 Va. at 93. It is this “delicate
balance” we seek to strike in considering whether an injury sustained by an employee as she
begins to walk a path that leads to her workplace is compensable under the Act.
Generally, a compensable injury “means only [an] injury by accident arising out of and in
the course of the employment or occupational disease.” Code § 65.2-101. This definition
“polices the border between coverage and noncoverage” under the Act. Lopez, 300 Va. at 196.
“[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 [she] is
-4- reasonably fulfilling the duties of [her] employment or is doing something which is reasonably
incidental thereto.” Clifton v. Clifton Cable Contracting, L.L.C., 54 Va. App. 532, 539 (2009).
Whether an injury arises out of and in the course of employment is a mixed question of
law and fact. Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 190 (1987). The Supreme
Court has evaluated this question in two contexts: when an employee is going to or coming from
a workplace, Kent v. Virginia-Carolina Chem. Co., 143 Va. 62, 66 (1925), and when an injury
occurs at a location in such proximity to a workplace that the location is “in practical effect a part
of the employer’s premises,” Brown v. Reed, 209 Va. 562, 565 (1969) (quoting Bountiful Brick
Co. v. Giles, 276 U.S. 154, 158 (1928)).
Under long-standing precedent, injuries sustained while going to or from work generally
are not compensable under the Act. See Kendrick, 4 Va. App. at 190-91; Kent, 143 Va. at 66.
This is what we have come to recognize as the “general rule of ‘going and coming.’” Hunton &
Williams v. Gilmer, 20 Va. App. 603, 606 (1995). The basis for the rule is that an employee
going to or coming from work “is not engaged in performing any service growing out of and
incidental to [her] employment.” Boyd’s Roofing Co. v. Lewis, 1 Va. App. 93, 94 (1985)
(quoting Kent, 143 Va. at 66). Because the employee is not yet “on the job,” the injury does not
arise in the course of employment. Cleveland v. Food Lion, LLC No. 0578, 43 Va. App. 514,
519 (2004) (quoting Sentara Leigh Hosp. v. Nichols, 13 Va. App. 630, 636 (1992) (en banc)).
Thus, an injury resulting from an individual traveling a route between her home and her place of
work is not considered to have arisen “in the course of the employment.”
The going and coming rule has recognized exceptions. An injured employee can
nonetheless recover when “going to” or “coming from” the workplace:
(1) where the means of transportation used to go to and from work is provided by the employer or the employee’s travel time is paid for or included in wages; (2) where the way used is the sole means of ingress and egress or is constructed by the employer; and -5- (3) where the employee is charged with some duty or task connected to his employment while on his way to or from work.
Id. at 519 (quoting Sentara Leigh, 13 Va. App. at 636); see also Kent, 143 Va. at 66.
Distinct from the going and coming rule is the extended premises doctrine. The extended
premises doctrine is best exemplified in the seminal case Brown v. Reed. In Brown, the
employer maintained on its premises a company parking lot, a shower, and a locker room for the
convenience of its employees. Brown, 209 Va. at 563. After Brown parked in the parking lot,
went to the locker room, and “started back across the parking area en route to . . . where he
would punch the time clock,” Reed’s automobile struck and injured Brown “as he was walking
in the passageway between the spaces in the parking area.” Id.
The Court considered whether Brown’s injury arose “out of and in the course of
employment.” Id. at 563-64. In doing so, the Court relied on the “time, location and
circumstances of the accident place,” stating “[t]here is no such thing as ‘instantaneous exit’”
when an employee “punches a time clock.” Id. at 564-65. Rather,
employment 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. . . . [T]he 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.
Id.; accord Scott v. Willis, 150 Va. 260, 268 (1928). As we have since recognized, “the Supreme
Court of Virginia drew a ‘bright line’ at the employer’s door in Brown v. Reed.” Gilmer, 20
Va. App. at 605. “[I]f an employee is injured while going to and from . . . 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.” Id. This is because an employee may be
injured in such proximity to her jobsite that the site of the injury is “in practical effect a part of
-6- the employer’s premises.” Brown, 209 Va. at 565 (quoting Bountiful Brick Co., 276 U.S. at
158).
Under the extended premises doctrine, the door to a workplace location “extends to
include adjacent premises used by the employee as a means of ingress and egress with the
express or implied consent of the employer.” Bountiful Brick Co., 276 U.S. at 158. The
“employer’s door” may represent a time or space in advance of a physical entry to the workplace
where such time or space is a means of ingress or egress to the physical entry. See Scott, 150 Va.
at 268 (“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.”).
Injuries occurring in places where an employer “has some kind of right of passage” to
and from a building, such as “common stairs, elevators, lobbies, vestibules, concourses,
hallways, walkways, ramps, footbridges, driveways, or passageways through which the employer
has something equivalent to an easement” are “generally considered to have taken place on the
employer’s premises.” Prince v. Pan Am. World Airways, 6 Va. App. 268, 273-74 (1988)
(quoting 1 A. Larson, Workmen’s Compensation Law § 15.43 (1985)). This is true “even if the
employer did not own or lease the particular place where the injury occurred.” Id. at 273; accord
Brown, 209 Va. at 565. Under these circumstances, the injury arises in the course of
employment, and it is compensable.
We have considered the extended premises doctrine in two contexts—injuries occurring
in passageways and injuries occurring in parking lots. When an employee is injured on the
employer’s extended premises, the employee is not transiting to the workplace so as to implicate
the “going and coming” rule. Rather, the employee has in fact already arrived at the workplace.
Thus, the application of either the “going and coming” rule or the extended premises doctrine
relies wholly upon the factual circumstances of the case.
-7- Although the extended premises grants a “reasonable margin of time and space,” the
doctrine has its limitations. In Cleveland, we recognized that parking lots are distinct from
sidewalks. Cleveland, 43 Va. App. at 520-21 (recognizing that “[i]n [that case],” the “parking lot
is not the equivalent of the sidewalk”). When a parking lot is not owned nor controlled by the
employer, the Commission’s application of the doctrine “rests on a combination of criteria,
including but not limited to proximity, authority, and responsibility for maintenance.” Id. at 519.
Accordingly, we have held that when an employee voluntarily paid to park in a garage owned by
her employer’s landlord and located across the street from the workplace, the injury she
sustained from slipping inside the garage did not arise in the course of her employment. Gilmer,
20 Va. App. at 604, 607-08.
Where an employee’s injury occurs on a passageway or walkway, the analysis shifts. In
Prince, we held that an employee suffered an injury in the course of her employment when she
slipped on an icy walkway that extended from a public sidewalk to a building where her
employer was a tenant. Prince, 6 Va. App. at 273-74. Since the walkway constituted an
essential means of ingress and egress to the workplace, we held that it was “in practical effect a
part of the employer’s premises.” Id. at 274 (quoting Barnes v. Stokes, 233 Va. 249, 252
(1987)). When an employee’s presence on such walkway is “required and expected by virtue of
her employment,” the employer impliedly consents to the employee’s use of the walkway to
access the workplace, and an injury occurring thereon arises in the course of her employment.
Id. at 273. Conversely, we have held that a publicly-used traffic lane connecting a parking lot to
an employer’s workplace did not extend the employer’s workplace under the doctrine. See
Cleveland, 43 Va. App. at 520-21. “[W]hen a court has satisfied itself that there is a distinct
‘arising out of’ or causal connection between the conditions under which [the] claimant must
approach and leave the premises and the occurrence of the injury, it may hold that the course of
-8- employment extends as far as those conditions extend.” Gilmer, 20 Va. App. at 608 (emphasis
added).
Similarly, we have held that an employee suffered an injury under the extended premises
doctrine when he slipped on an icy “concrete apron” that connected a public street, where the
employee parked, to the driveway of his jobsite. Wetzel’s Painting & Wallpapering v. Price, 19
Va. App. 158, 159, 161 (1994). Because the employee was “required to traverse the concrete
apron leading from the public street into the driveway,” we held that the concrete apron was “in
practical effect a part of the employer’s premises,” and “it was irrelevant that other entrances into
the building were available.” Id. at 161; see also Prince, 6 Va. App. at 274 (holding that because
the injury occurred on property that was “in practical effect” a part of the employer’s premises
under the extended premises doctrine, it was “irrelevant” that the employee could have used
another path to enter the building).
The extended premises doctrine also applies here. On the date of the accident, MWAA
directed Sullivan and other airport employees to Garage 2 as the only free parking option.3 From
the garage, the walkway located beyond the parking lot provided Sullivan and other United
employees “some kind of right of passage” to reach the terminal. Prince, 6 Va. App. at 273
(quoting 1 Larson, supra, § 15.43). Indeed, the walkway led directly to the terminal, stopping
short of the terminal entrance by 30 feet. Like in Prince, although the walkway was not the only
way to get to the destination, the walkway was an essential means of ingress and egress from the
airport terminal. Further, Sullivan’s presence on the walkway was required and reasonably
expected by virtue of her employment within the terminal. See id. at 271, 274; Wetzel’s
3 In Barnes v. Stokes, the Supreme Court held that the parking lot was a part of the workplace’s extended premises when the employer did not own the lot but “required” the employees to park there. 233 Va. at 252-53. Although the fact that a parking lot is free is certainly not dispositive, compulsion or an incentive—such as free parking—is a factor to consider in this analysis. -9- Painting, 19 Va. App. at 161 (holding that the concrete apron was on an essential path to the
jobsite even though “other entrances . . . were available”). The circumstances present a
sufficient “causal connection between the conditions under which [Sullivan] must approach and
leave the [terminal] and the occurrence of the injury” to establish that the injury occurred in the
course of her employment. Gilmer, 20 Va. App. at 608. Once Sullivan crossed the “silver
threshold” from Garage 2 onto the walkway that led directly and exclusively to the United
terminal, Sullivan effectively entered United’s workplace under the extended premises doctrine.
United argues that this case is analogous to Gilmer. But we find this case and Gilmer to
be factually distinguishable. Here, Sullivan did not slip in a parking lot; instead, she slipped
after passing the threshold that divided the parking lot from the walkway that led to her
workplace. See also Cleveland, 43 Va. App. at 521 (“[the] parking lot is not the equivalent of
the sidewalk”). In Gilmer, we explained that whether the extended premises doctrine
encompasses an injury that occurred in a parking lot does not primarily turn on “proximity, or
reasonable distance, or even the identifying of surrounding areas with the [employer’s]
premises.” Gilmer, 20 Va. App. at 608. Rather, as previously stated, the doctrine applies “when
a court has satisfied itself that there is a distinct ‘arising out of’ or causal connection between the
conditions under which claimant must approach and leave the premises and the occurrence of the
injury.” Id.
United also emphasizes that Sullivan’s accident occurred more than 80 yards from the
terminal but “only two steps” removed from the parking lot.4 Those circumstances do not
4 In making this point, United argues that it is unfair to hold an employer accountable for premises it cannot see. But that is a concern for tort liability, not liability under the Workers’ Compensation Act. The Workers’ Compensation Act allows compensation for many unseen hazards. Indeed, a vital part of the “legislative quid pro quo” is that employees may assert “no- fault liability against their employers.” Lopez, 300 Va. at 196 (quoting Jeffreys, 297 Va. at 93). Thus, applicability of the extended premises doctrine does not turn on whether the injury
- 10 - require reversal. As in Prince, whether a location constitutes an extension of an employer’s
workplace does not turn on the distance from the passageway to the workplace but on the
character of the passageway on which the claimant fell. Prince, 6 Va. App. at 273-74. The
walkway in Prince was “in practical effect a part of the employer’s premises,” id. at 274 (quoting
Barnes, 233 Va. at 252), because it “was a common avenue of passage over the grounds and an
essential means of ingress and egress from the public [location] to [the employer’s] place of
business,” id. Similarly, in Wetzel’s Painting, we relied primarily on the fact that the concrete
apron formed part of an essential and “required” path leading from the public street to the jobsite
without reference to the distance from the jobsite that the injury occurred. Wetzel’s Painting, 19
Va. App. at 161. In Brown, the Supreme Court did not even describe the distance between the
jobsite and the injury. See Brown, 209 Va. at 563. The distance between the injury and the
premises is not dispositive. Instead, the relevant inquiry is whether the employee is on “adjacent
premises used by the employee as a means of ingress and egress.” Bountiful Brick Co., 276 U.S.
at 158. Once Sullivan crossed the silver threshold onto the walkway, she was no longer in the
parking lot. Instead, she was on the walkway, using it as a means of ingress and egress
consistent with the implied consent of her employer. Thus, under the extended premises
doctrine, Sullivan’s injury occurred on property that was in practical effect part of United’s
premises.5 Therefore, the Commission did not err in finding that Sullivan’s injury arose out of
and in the course of her employment.
occurred within visibility of the workplace, but whether the injury location is sufficiently essential as to constitute the workplace. 5 United also argues that this result creates an “airport exception” to the going and coming rule because the distance between the site of the injury and United’s terminal was over 80 yards. We find no support for that argument. Many workplaces expand over large distances or occupy space within large buildings. Whether at an airport or in an office building, the relevant inquiry is whether, at the time of injury, the employee has crossed the threshold between
- 11 - CONCLUSION
For the foregoing reasons, we affirm the Commission’s judgment.
Affirmed.
a “common area” onto property that serves as a means of direct ingress to her workplace. See Cleveland, 43 Va. App. at 520. - 12 -