Course of Employment

Legal Summaries Contents       Home Page Contents



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).

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).

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.

Legal Summaries Contents       Home Page Contents