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JURISDICTION

See Employee

"All questions arising under [the Workers' Compensation Act ("the Act")] . . . shall be determined by the Commission . . .." Code Sec. 65.2-700. "This grant of subject matter jurisdiction includes the authority of the commission to enforce its orders and to resolve coverage and payment disputes." Bogle Development Co. v. Buie, 250 Va. 431, 434, 463 S.E.2d 467, 468 (1995).

"All questions arising under [the Workers' Compensation Act ("the Act")] . . . shall be determined by the Commission . . . ."   Code Sec. 65.2-700. "This grant of subject matter jurisdiction includes the authority of the commission to enforce its orders and to resolve coverage and payment disputes." Bogle Development Co. v. Buie, 250 Va. 431, 434, 463 S.E.2d 467, 468 (1995). Code Sec. 65.2-714(A) provides the commission exclusive jurisdiction over all disputes concerning payment of the fees or charges of physicians and hospitals. Moreover, an employer has a statutory duty to provide an employee with free medical care related to a compensable injury. Code Sec. 65.2-603(A). The commission properly found that it had subject matter jurisdiction because the Center's application concerned employer's duty to pay medical expenses related to claimant's compensable injury. In Bogle, the Supreme Court ruled that the commission did not have  jurisdiction to consider the reimbursement claim of a private health insurance carrier after the employer had reimbursed the employee for his out-of-pocket payment for his medical expenses. Bogle, 250 Va. at 434, 463 S.E.2d at 468-69. The Court ruled that the commission lacked jurisdiction to consider a claim by the employee's insurer against the employer for reimbursement of the insurer's expenses because "no right of the [employee] was 'at stake.'" Id. Once the employer reimbursed the employee, the litigants were left to common law remedies in resolving the issue whether the employer had to reimburse the employee's private health insurance carrier. Id. In this case, unlike Bogle, the employee's rights were at stake. If claimant's reasonable and necessary medical bills were not paid by the employer, he would be personally liable for them.  Claimant had the right, pursuant to the Act, the commission's award, and the settlement order, to have his causally related medical expenses paid by employer. Claimant joined the Center's application as a party and sought to require employer to abide by its duty to pay his causally related medical expenses. Moreover, employer does not challenge the commission's ruling that the medical expenses incurred by claimant at the Center were necessary, reasonable, and causally related to his compensable injury by accident.  The commission did not have before it a request for reimbursement by a private health insurance company. Rather, the commission had before it a dispute among a medical care provider, an employee, and an employer concerning whether the employer was responsible for payment of Lafon's medical expenses. Such a dispute falls squarely within the commission's sole jurisdiction provided for under the Act. Code Sec. 65.2-714. Accordingly, the commission did not err in exercising jurisdiction over the Center's application. Combustion Engineering, Inc. v. Ernest R. Lafon, Jr. and Center for Rehabilitative Medicine, Record No. 2327-95-3 (April 9, 1996).

"Generally, the Commission's jurisdiction is limited to those issues which are directly or necessarily related to the right of an employee to compensation for a work-related injury." Hartford Fire Ins. Co. v. Tucker, 3 Va. App. 116, 120, 348 S.E.2d 416, 418 (1986). The civil rights issues raised by claimant of termination for refusing to sign a consent form for drug testing and the relief sought, reinstatement of employment, do not fall within the purview of the commission's jurisdiction. Accordingly, the commission did not err in holding that it had no jurisdiction over those issues. Ned N. Cary, Jr. v. Anheuser-Busch, Inc., Record No. 2179-99-1 (November 9, 1999). WP Version.

The uninsured motorists statute, Code Sec. 38.2-2206, does not permit the personal representative of a deceased employee to prosecute a common-law action against the statutory employer and a fellow servant, as well as two uninsured motorist carriers, and collect a judgment from the insurers because of the exclusive remedy provision of the Workers' Compensation Act (the Act). Code Sec. 65.2-307 (rights and remedies granted to employee for payment of workers' compensation on account of death by accident exclude all other rights and remedies of employee's personal representative at common law on account of such death). Decedent was operating a dump truck for his employer, a subcontractor, at a construction site. A mobile crane owned by another subcontractor was being operated by its employee, defendant Gunn. As a result of the alleged negligence of Gunn, the crane "toppled over," crushing the truck's cab and causing decedent's death. The administrator sued the owner of the crane (the decedent's statutory employer) and its employee Gann (the decedent's fellow servant), and also joined as defendants the uninsured motorist carrier for the crane and decedent's personal vehicle. The Supreme Court held that the alleged tortfeasors, the owner of the crane and its employee Gunn, are not subject to a common-law judgment in an action by the decedent's administrator, due to the exclusive remedy provision of the Act. Because the Act afforded the exclusive remedy against the decedent's statutory employer, the owner of the crane and a fellow servant, the decedent's statutory beneficiaries under the wrongful death statutes are not legally entitled to recover damages against them. The uninsured motorist statute requires motor vehicle liability policies to contain provisions undertaking to pay "the insured all sums that he is legally entitled to recover as damages" from an uninsured motorist. Code Sec. 38.2-2206(A). Thus, a condition precedent to the insurers' liability under the uninsured motorist statute was not met. The amendment to the uninsured motorist statute that an "uninsured motor vehicle" "means a motor vehicle for which . . . (v) the owner or operator of the motor vehicle is immune from liability for negligence under the laws of the Commonwealth or the United States, in which case the provisions of subsection F shall apply and the action shall continue against the insurer," Code Sec. 38.2-2206(B), does not apply. Terms such as "immune" contemplate total exemption from tort liability, such as that generally enjoyed by state and local governments. In the present situation, the alleged tortfeasors were not exempt from liability. Rather, they, and their workers' compensation insurance carrier, were strictly liable to the plaintiff for payment of workers' compensation benefits. Code Sec. 38.2-900, contained within the insurance title of the Code, provides: "the provisions of this title shall not amend or repeal any provisions of Title 65.2 relating to workers' compensation." Therefore, the exclusive remedy provision of the Act is not affected by the amendments to the uninsured motorist statute. Welch v. Miller and Long Co. of Maryland, Record No. 982534 (November 5, 1999). WP Version.

The commission has jurisdiction if an employer, considering the nature and character of its business and the established mode of conducting it, regularly has in service in Virginia three or more employees, whether full or part time or temporary. See Smith Construction v. Weber, 3 Va. App. 379, 350 S.E.2d 213 (1986); Bills v. Hi Tech Polishing, 74 O.W.C. 126 (1995). Temporary fluctuations in the number of employees does not enable the employer to avoid the jurisdiction of the Act. Bills v. Hi Tech Polishing, 74 O.W.C. 126 (1995). In farming employment, an employer must have more than two full-time employees regularly in service. Sec. 65.2-101, "Employee" (2) (g).

In determining jurisdiction, the commission counts the total number of persons employed on the job by the contractor and all subcontractors. Smith Construction v. Weber, 3 Va. App. 379, 350 S.E.2d 213 (1986).

The purpose of the Workers' Compensation Act is to protect "employees." See Rust Eng'g Co. v. Ramsey, 194 Va. 975, 980, 76 S.E.2d 195, 199 (1953). However, Code Sec. 65.2-101 exempts certain employers from liability under the Act by excluding from its definition of "employee," "[e]mployees of any person, firm or private corporation . . . that has regularly in service less than three employees in the same business within this Commonwealth . . . ." Corporate officers of IRS, were employees. See Code Sec. 65.2-101. Because claimant was IRS's employee for purposes of determining liability, he was also its employee for purposes of determining the applicability of the Act. See Smith v. Weber, 3 Va. App. 379, 381, 350 S.E.2d 213,214 (1986).

"[O]nce an employee proves that his or her injury occurred while employed in Virginia, an employer has the burden of producing sufficient evidence upon which the commission can find that the employer employed less than three employees regularly in service in Virginia." Craddock Moving & Storage Co. v. Settles,16 Va. App. 1, 2, 427 S.E.2d 428, 429 (1993), aff'd per curiam, 247 Va. 165, 440 S.E.2d 613 (1994). "Whether a person is an 'employee' and whether an employer  has three or more employees 'regularly in service' are pivotal determinations in deciding if an employer is subject to the Act." Cotman v. Green, 4 Va. App. 256, 258, 356 S.E.2d 447, 448 (1987). Both full-time and part-time employees who are regularly employed to carry out the trade or business of the employer must be counted in determining the number of employees "regularly in service" to employer. See id. at 258-59, 356 S.E.2d at 448. "[A]ny person hired by the employer to work in the usual course of the employer's business is an `employee' under the Act regardless of how often or for low long he may be employed. Id. at 258, 356 S.E.2d at 448 (citing Hoffer Bros. v. Smith, 148 Va. 220, 226, 138 S.E. 474, 476 (1927)).

Deciding what constitutes the "trade, business or occupation" of an entity is a mixed question of law and fact. Henderson v. Central Tel. Co., 233 Va. 377, 382, 355 S.E.2d 596,599 (1987). Code Sec. 65.2-302 imposes upon a subcontractor who sub-subcontracts work liability for any compensation which the subcontractor would have been liable to pay had an injured worker been employed directly by the subcontractor. See Sykes v. Stone & Webster Eng'g Corp., 186 Va. 116, 121-22, 41 S.E.2d 469, 471-72 (1947). However, that liability is predicated upon a determination that the sub-subcontractor was engaged in the "trade, business or occupation" of the subcontractor. Code Sec. 65.2-302. Liability under Code Sec. 65.2-302 depends also upon a showing that the subcontractor was in privity with the sub-subcontractor who employed the claimant.

"'Regularly in service' implies more than occasional pick-ups and drop-offs or merely driving through Virginia."   Employer owns terminals in Texas, Tennessee, Georgia, Ohio and West Virginia. The company does not own any facilities in Virginia. However, it leases an office building in Dublin, Virginia where one employee works, and maintains "drop yards" in both Dublin and Chester, where no employees work but loads are frequently picked up and dropped off. More than three OTR drivers use the drop yards in Virginia. The various OTR drivers were dispatched from Tennessee and  traveled nationwide, delivering loads in Virginia and stopping at the "drop yards" on any given day. These drivers do not constitute the third necessary employee for jurisdiction under the Act. In view of this finding, the "all-states" endorsement carried by the employer on its workers' compensation insurance policy does not subject the employer to jurisdiction in Virginia. Glenwood Edward Johnson  v.  M S Carriers, Inc., Record No. 0907-98-3 (January 12, 1999).

Who are "Employees"--See "Employee" above.

Officers of a corporation and members of the Board of Directors, paid or unpaid, are considered employees. Williams v. Warren Association for Retarded Citizens, Inc., 70 O.I.C. 22 (1991).

Partners are not employees of the partnership. Berry v. Fray Berry Construction Co., 58 O.I.C. 21 (1979).

Prisoners are not employees of the Commonwealth or the agency for which they work. Woodward v. Commonwealth of Virginia, 249 Va. 21, 452 S.E.2d 656 (1995).

Volunteers working with no promise or expectation of payment are not employees. Charlottesville Music Center v. McCray, 215 Va. 31, 205 S.E.2d 674 (1974). But see Sec. 65.2-101. "Employee" (1) (l).

Casual employees are not covered by the Act. Employment is casual when not permanent or  periodically regular, but occasional, or by chance, and not in the usual course of the employer's trade or business. Waggle v. Lang, 75 O.W.C. 33 (1996).

Persons who are themselves contractors and subcontractors are not employees. Kramer v. Kramer, 199 Va. 409, 100 S.E.2d 37 (1957).

To be an employee under the Act, a person must be hired to perform a service in the usual course of trade, business or profession of the employer.  Waggle v. Lang, 75 O.W.C. 33 (1996).

Foreign Injuries and Accidents. Under Sec. 65.2-508, the commission has jurisdiction if the contract of employment was made in Virginia, and the employer has a  place of business in Virginia, and the employee was not hired for service exclusively outside of Virginia. See Keller v. North American Van Lines, 73 O.W.C. 11 (1994). The claimant has the burden of proof of jurisdictional facts. Shawver v. B. E. & K. Contractors, 60 O.I.C 392 (1981).

Buenson Division, Aeronca, Inc. v. McCauley, 221 Va. 430, 434 n.2, 270 S.E.2d 734, 736 n.2 (1980) (noting that a new statute with retroactive applicability cannot act to revive a "dead claim"); Dan River, Inc. v. Adkins, 3 Va. App. 320, 326, 349 S.E.2d 667, 670 (1986) (citing Buenson Division, 221 Va. at 434 n.2, 270 S.E.2d at 736 n.2).

If an application for review of a final order of the commission is not made within twenty days of the date of the order, the commission has no jurisdiction to review the matter unless the petitioning party alleges fraud or mistake in the procurement of the award. McCarthy Electric Company, Inc. v. Foster, 17 Va. App. 344, 345, 437 S.E.2d 246, 247 (1993) (citing Code § 65.2­705(A)).

Issue of Subject Matter Jurisdiction Raised at Any Time. Subsequently discovered injuries. The commission lacked jurisdiction to award benefits because claimant failed timely to file a claim for injuries to his neck and back arising from an industrial accident of October 22, 1979. Following the accident the only injuries included in the Memorandum of Agreement executed by the parties in 1979 were to claimant's shoulder and forehead. Claimant filed no claim for benefits for back, neck, arm or leg injuries until more than fifteen years after the compensable accident. Claimant contends the back and neck injuries occurred simultaneously with, rather than subsequent to, the accepted shoulder and forehead injuries. This case is distinguishable from the case in which an employee timely files a claim for all injuries incurred in an industrial accident but subsequently develops additional injuries as a "natural consequence" of the industrial accident. See Bartholow Drywall Co. v. Hill, 12 Va. App. 790, 793-94, 407 S.E.2d 1, 3 (1991). "The right to compensation under [the Workers' Compensation Act] shall be forever barred, unless a claim be filed with the Commission within two years after the accident." Code Sec. 65.1-87, 1975 Va. Acts ch. 471; see Barksdale v. H.O. Engen, Inc., 218 Va. 496, 499, 237 S.E.2d 794, 796-97 (1977) (holding that statute of limitations is part of "substantive right to recover" under Act and, therefore, applicable statute of limitations is one in effect when injury occurs). "This is the notice which activates the right of the employee to compensation and which invokes the jurisdiction of the [Workers' Compensation Commission]." Binswanger Glass Co. v. Wallace, 214 Va. 70, 73, 197 S.E.2d 191, 194 (1973) (construing former Code Sec. 65.1-87). "'The right to compensation under the [workers'] compensation law is granted by statute, and in giving the right the legislature has full power to proscribe the time and manner of its exercise.'" Id. at 73, 197 S.E.2d at 193 (quoting Winston v. City of Richmond, 196 Va. 403, 407, 83 S.E.2d 728, 731 (1954)). It is the intent of Code Sec. 65.1-87 that, within the time prescribed by the section, an employee must assert against his employer any claim that he might have for any injury growing out of the accident. . . . Failure to give such notice within [the statutorily prescribed period] would seriously handicap the employer . . . in determining whether or not there was in fact an injury, the nature and extent thereof, and if related to the accident. The reason for the limitation . . . is a compelling one. Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d 849, 853 (1975) (emphases and footnote added) (construing former Code Sec. 65.1-87). Thus, in Shawley, the Court held that the commission lacked subject matter jurisdiction to award benefits for injury to the claimant's right ankle and back, where the only injuries for which he filed a timely claim were to his left ankle and right hip. See id. at 443-44, 219 S.E.2d at 851. The Court subsequently noted that "[j]urisdiction [ordinarily] cannot be conferred on the Commission by consent" and that it comes into being "when 'a claim [is] filed' within two years after the accident." Stuart Circle Hosp. v. Alderson, 223 Va. 205, 208-09, 288 S.E.2d 445, 447 (1982). Claimant filed no claim for benefits for back, neck, arm or leg injuries until more than fifteen years after the compensable accident. Accordingly, the commission lacked subject matter jurisdiction to award medical benefits for these injuries. Although the employer failed to raise the jurisdictional defense in an earlier proceeding in 1995, the doctrine of res judicata provides that "[a] valid, personal judgment on the merits in favor of [a party] bars relitigation of the [s]ame cause of action, or any part thereof which could have been litigated, between the same parties and their privies." Bates v. Devers, 214 Va. 667, 670-71, 202 S.E.2d 917, 920-21 (1974) (footnote omitted). However, "[f]or a prior judgment to preclude a subsequent action, . . . the court in the first proceeding must have had jurisdiction over the subject matter of the controversy and the precise issue upon which the judgment was rendered." Lloyd v. American Motor Inns, Inc., 231 Va. 269, 271, 343 S.E.2d 68, 69 (1986) (emphasis added). If a court lacks jurisdiction to render a judgment, the judgment has no preclusive effect. See id. Therefore, the doctrine of res judicata provides no exception to the well accepted principle of law that lack of subject matter jurisdiction may be raised in any court at any time and a judgment rendered by a court lacking subject matter jurisdiction is void ab initio. See Morrison v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d 753, 755-56 (1990). Safeway Stores, Inc. v. Harold E. McGowan, Record No. 0895-99-2 (February 29, 2000). WP Version.

Injury During Exercise Class Aggravated at Employee Health Services. VWC Has Exclusive Jurisdiction. Employee suffered an "injury by accident arising out of and in the course of . . . employment," Code Sec. 65.2-101. Employer arranged for an independent instructor to teach an aerobics class at its Richmond office for the benefit of its employees. Participation in the class by employer's employees was voluntary. Employer advertised the class on its bulletin boards and in its newsletter. It did not charge for the use of its facility, but participating employees were required to pay a fee to the instructor for the class. Claimant participated in the aerobics class during her lunch hour, and, while doing so, developed a severe headache. When Combs' head pain did not subside, she was taken to the Employee Health Services ("EHS") "quiet room" to rest. The "quiet room" is used by employees who become ill at work, or by recuperating employees who have returned to work after an accident or illness and need to rest during the workday. When an employee is using the room, an EHS staff member is required to be in the office, and the employee is to be checked at regular intervals. Claimant was not examined by any medical personnel and was not checked at regular intervals. Two hours later claimant was discovered in a coma-like state. Claimant was taken to the hospital and was diagnosed with intracranial bleeding, a right giant middle cerebral aneurysm, and an intraparenchymal hemorrhage. The aggravation and acceleration of claimant's' pre-existing aneurysm was "an injury by accident arising out of and in the course of her employment", and her action in Circuit Court alleging negligence in employer's operation of EHS was therefore barred by the exclusivity provision of the Act. "An injury is subject to the exclusivity provision of the Act if it is the result of an accident and arises out of and in the course of the employment." Richmond Newspapers, Inc. v. Hazelwood, 249 Va. 369, 372, 457 S.E.2d 56, 58 (1995). Thus, the critical inquiry is whether claimant's injury was (1) an injury by accident, (2) arising out of, (3) and in the course of, her employment. See Code Sec. 65.2-101; Briley v. Farm Fresh, Inc., 240 Va. 194, 197, 396 S.E.2d 835, 836 (1990). If any one of these elements is missing, then claimant's claim is not covered by the Act, Snead v. Harbaugh, 241 Va. 524, 526, 404 S.E.2d 53, 54 (1991), and she can proceed with her personal injury claim in the circuit court. (1) Injury by Accident. This Court recently addressed the requirements of an "injury by accident" in Southern Express v. Green, 257 Va. 181, 509 S.E.2d 836 (1999). There, the Court held that an "injury by accident" occurs when the injury appears "suddenly at a particular time and place[,] and upon a particular occasion[;]" when it is "caused by an identifiable incident [,]or sudden precipitating event[;]" and when the injury results "in an obvious mechanical or structural change in the human body." Id. at 187, 509 S.E.2d at 839. All these factors were present with regard to claimant's injury (the aggravation, exacerbation, and/or acceleration of the aneurysm resulting from the alleged negligent emergency medical care, or lack thereof, that she received from EHS employees after she suffered a severe headache during the aerobics class). According to claimant's Circuit Court Motion for Judgment, the particular time, place, and occasion of her injury was at the EHS "quiet room" in Virginia Power's Richmond office, during the two to three hours that elapsed from when she first developed the headache and was taken to the "quiet room" until she was transported to the hospital. The identifiable or precipitating event was the alleged negligent emergency medical treatment that she received during this span of time. Finally, Combs' paralysis and cognitive brain damage represent the mechanical or structural changes in her body that resulted from her injury. Thus, all the requirements of an "injury by accident" are present in this case. See Winn v. Geo. A. Hormel & Co., 560 N.W.2d 143, 149 (Neb. 1997)(holding that negligent medical treatment at employer's first-aid medical facility may constitute "accident"). (2) Arising out of. The phrase "arising out of" pertains to the origin or cause of an injury. County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989); Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). In determining whether an injury arises out of employment, the Virginia Supreme Court has repeatedly quoted with approval the test enunciated in In re Employers' Liab. Assur. Corp., Ltd., 102 N.E. 697 (Mass. 1913). An injury arises "out of" the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises "out of" the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. Id. at 697; accord Lucas v. Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972); Conner v. Bragg, 203 Va. 204, 208-09, 123 S.E.2d 393, 396-97 (1962); Bradshaw, 170 Va. at 335, 196 S.E. at 686. In Virginia, we apply an "actual risk test," meaning that the employment must expose the employee to the particular danger causing the injury, notwithstanding the public's exposure generally to similar risks. Lucas, 212 Va. at 563, 186 S.E.2d at 64. Thus, if there is a causal connection between Combs' injury and the conditions of her employment, then her injury arose out of her employment. See United Parcel Serv. of Am. v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 893 (1985) ("An accident arises out of the employment when there is a causal connection between the claimant's injury and the conditions under which the employer requires the work to be performed."). The risk of employment was the alleged negligent emergency medical treatment by EHS personnel, which aggravated her pre-existing aneurysm. Claimant was exposed to this risk or condition of employment solely because she was an employee. The public generally would not have been exposed to the same risk because only employees could utilize EHS. This caser is distinguishable from Taylor v. Mobil Corp., 248 Va. 101, 444 S.E.2d 705 (1994). In Taylor, an employee visited a doctor at his employer's clinic for treatment of a heart condition. The employee ultimately suffered a fatal heart attack at home although the doctor had advised him that he was not suffering from heart disease. Id. at 103-04, 444 S.E.2d at 706-07. This Court concluded that the employee's risk of exposure to negligent treatment by the doctor was not an actual risk of employment because the employee voluntarily opted to use the doctor at the employer's clinic. He was not required to do so by his employer, nor was he treated by that doctor because he became ill at work. Id. at 107, 444 S.E.2d at 708. In contrast, claimant suffered her severe headache while participating in the aerobics class at employer's office. While taking part in that class was not required by employer, EHS personnel treated claimant because of her status as an employee. In fact, the aerobics instructor called EHS when claimant became ill because the EHS coordinator had directed the instructor to do so. Thus, the risk that led to claimant's injury was part of her work environment. See Briley, 240 Va. at 198, 396 S.E.2d at 837. Additionally, "When an injury sustained in an industrial accident accelerates or aggravates a pre-existing condition, death or disability resulting therefrom is compensable under the Workers' Compensation Act." Ohio Valley Const. Co. v. Jackson, 230 Va. 56, 58, 223 S.E.2d 554, 555 (1985). (3) Course of  employment. Claimant's pre-existing aneurysm united with an actual risk of her employment to produce her injury. "The phrase arising `in the course of' [employment] refers to the time, place, and circumstances under which the accident occurred." Johnson, 237 Va. at 183, 376 S.E.2d at 74. "An accident occurs `in the course of the employment' when it takes place within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling duties of his employment or engaged in doing something incidental thereto." Bradshaw, 170 Va. at 335, 196 S.E. at 686; accord Lucas, 212 Va. at 563, 186 S.E.2d at 64; Conner, 203 Va. at 208, 123 S.E.2d at 396. The aggravation of the aneurysm occurred after EHS personnel responded to the call for assistance from the aerobics instructor, during claimant's' period of employment, and at a place where she could reasonably be if she became ill at work, i.e., the "quiet room." The only reason that EHS responded to that call was because claimant was an employee. Thus, claimant "was injured at a place where she was reasonably expected to be while engaged in an activity reasonably incidental to her employment." Briley, 240 Va. at 198, 396 S.E.2d at 837. Her injury therefore occurred "in the course of" her employment. Claimant's injury was an "injury by accident arising out of and in the course of [her] employment." Code Sec. 65.2-101, and is therefore compensable under the Act. Her action in the circuit court is thus barred by Code Sec. 65.2-307 ("The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee . . . on account of such injury . . . ."). Combs v. Virginia Power, Record No. 990534 (March 2, 2000). WP Version.

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