2.5 “In the Course Of” Employment

• Library: Workers' Compensation Practice in Virginia (Virginia CLE) (2020 Ed.)

2.5 "IN THE COURSE OF" EMPLOYMENT

2.501 In General.

A. Definition. The term "in the course of" refers to the time, place, and circumstances under which the accident occurred. An accident occurs in the course of the employment when it takes place within the period of employment at a place where, from the nature of the work, the employee may be reasonably fulfilling the duties of his or her employment or is doing something that is reasonably incidental to the employment. ¹⁹²

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B. Examples. In Hunton & Williams v. Gilmer, ¹⁹³ the Court of Appeals of Virginia denied benefits to an employee who fell in a parking deck located across the street from her employer's building. The employer neither owned the parking deck, nor required employees to park there; claimant paid for a parking space from her own earnings via payroll deductions. Even though claimant was injured in the morning while walking from her car to work, the employer exercised no control or authority over garage operations or the claimant herself at the time of the accident. Accordingly, the court held that the accident did not arise out of and in the course of the employment.

In Thore v. Chesterfield County Board of Supervisors, ¹⁹⁴ the Virginia Court of Appeals extended the "in the course of" analysis to include as a compensable accident a police officer's injuries sustained while she was at the courthouse to testify in a case where she was the arresting officer but had recently resigned from the police force. The court ruled that there was "a reasonable winding up of affairs" and an "obligation to follow through with the process that has been set in motion" from which the employer benefited, such that there was an unbroken course between the work and the injury. The officer's obligation to testify originated when she made the initial arrest and her post-resignation testimony was a reasonable part of the winding up of her duties. The court also emphasized that, by testifying, the officer was following the directions of her former supervisor. ¹⁹⁵

In Grand Union Co. v. Bynum, ¹⁹⁶ which on its face appeared analogous to the facts presented in Graybeal v. Board of Supervisors, ¹⁹⁷ the Virginia Supreme Court reversed the Commission's finding of compensability. In Grand Union, the assailants, who planned a supermarket robbery, stalked

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the store manager after closing hours, accosted him at the home of a social acquaintance, shot him, and took the store keys. The court held that the injuries arose out of the employment but not in the course of employment, and therefore, no compensation was payable. The court reasoned that the workday was completed, and no business purpose was associated with the manager's evening travels.

In Jackson v. Ratcliff Concrete Co., ¹⁹⁸ the Virginia Court of Appeals affirmed a Commission decision that a claimant's injuries were not compensable because they did not occur in the course of his employment. The claimant was told by the owner that he was "off the clock" and would not be getting paid, although the owner wanted another employee to stay and finish some work. The claimant stayed at the work site so that he could get a ride home with the co-employee. After everyone left, the claimant began assisting the co-employee to expedite their leaving the business premises. While assisting the co-employee, the claimant fell 17 feet to the ground, sustaining a severe injury. The court held that when the employee supplies labor gratuitously, with no promise of pay or compensation of any kind, the employee is not covered by the Act.

In Virginia Polytechnic Institute & State University v. Wood, ¹⁹⁹ the Virginia Court of Appeals concluded that severe injuries sustained by a claimant while attending an out-of-state conference did not occur in the course of her employment. Wood chose to spend her evenings at a campsite many miles from the place of the conference. On the day in question, the claimant was injured while traveling from the conference site to the campsite via bicycle. An avid cyclist, the claimant was 28 miles into her bike journey at the time she was injured. The court held that her injuries were not sustained in the course of her employment and that the claimant was not reasonably fulfilling the duties of her employment or performing functions reasonably incidental to her employment. Extended bicycle journeys, the court indicated, could not be considered travel incidental to attending the conference.

In Kraf Construction Services v. Ingram, ²⁰⁰ the Virginia Court of Appeals held that a claimant's injuries were compensable and did occur in

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the course of his employment. The claimant had been struck by a car as he and several co-workers crossed a highway from a job site to reach a convenience store to buy soft drinks before being driven back to the company parking lot. The employees reported to the company parking lot in the morning, were transported to various job sites in company trucks, and were then taken back to the company parking lot at the end of the workday. Employees were paid from the time they arrived at the company parking lot until they left the job site at the end of the day. The Commission heard conflicting testimony as to whether the claimant had actually finished work for the day before the accident occurred. The Commission, without resolving the conflict, found that in either event Ingram was entitled to compensation. The Court of Appeals affirmed and held that, regardless of whether the work had been completed for the day, the accident occurred during the course of employment as the claimant was seeking to satisfy his personal comfort at a place known to and constructively approved by his employer.

In Vaughan's Landscaping & Maintenance v. Dodson, ²⁰¹ the Virginia Supreme Court held that the injuries sustained by an employee of a landscaping business arose out of and in the course of his employment when the owner of the business sideswiped a tree while driving the employee to a location specified by the employee upon the completion of the workday. The employee recovered benefits, even though the accident occurred after the owner and the employee had stopped to drink alcohol and pitch horseshoes with friends and the employee was admittedly intoxicated at time of accident. The court ruled that the employee's intoxication did not bar his recovery, since the owner did not expect him to do any more work that day, and the owner had discussed possible future business with friends while pitching horseshoes. Further, the accident occurred while the employer was fulfilling his obligation to provide transportation to and from work.

In Boys & Girls Club of Virginia v. Marshall, ²⁰² the Virginia Court of Appeals found that a lifeguard's drowning death while at work arose in the course of his employment where the lifeguard's swim in a pool occurred during his normal working hours and a lull in his schedule. The court decided that the employee's swim did not interfere with his other duties. The employer's executive director was aware of the lifeguard's swimming activity,

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and no evidence indicated that he disapproved. The court also ruled that the lifeguard's swimming skill above and below water were integral to his employment responsibilities.

C. Statutory Exceptions. Police officers and firefighters are considered to be in the course of their employment for purposes of any claim for workers' compensation benefits even when off duty or outside an assigned shift or work location when undertaking any law enforcement or rescue activity. ²⁰³

Any member of the Virginia National Guard or the Virginia Defense Force who travels by the most expeditious route in response to a direct order to report received while outside an assigned shift or work location is considered to be in the course of employment for purposes of a workers' compensation claim. ²⁰⁴ Likewise, any first responder who, in response to a lawful order issued pursuant to a state of emergency, travels by the most expeditious route to or from home or another location outside an assigned shift or work location is considered to be in the course of employment for purposes of a claim for workers' compensation benefits. ²⁰⁵

2.502 Deviation from Employment.

A. Extent of Deviation. In cases involving deviation from employment, the primary question is whether the deviation was so substantial that it can be said that the activity in which the employee was engaged at the time of the injury was personal or forbidden by the employer and removed the employee from the course of employment.

B. Temporary Deviation. In many cases, the deviation is only temporary. When the employment has been suspended for a purpose wholly unrelated to the employment or for a purely personal reason, the injury generally is not compensable. There are exceptions, however, when a deviation is not intentional and was not made to fulfill any personal desire of the claimant. ²⁰⁶ However, where the work has been suspended for a purpose

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wholly unrelated to the employment, the claimant has taken himself out of the course of his employment and must suffer the consequences. ²⁰⁷ As illustrated in Taylor v. Robertson Chevrolet Co. ²⁰⁸ and Railway Express Agency v. Lewis, ²⁰⁹ the deviation must be more than trivial or insignificant, or it will not take the claimant out of the course of employment. ²¹⁰

C. Dual Purpose. Where a dual purpose is being served, such as when the employee is attending to a personal interest but the employer's interest is still being served to some extent, the employee is not taken out of the course of his employment. ²¹¹ In Henry v. R.S. Burruss Lumber Co., ²¹² the Commission ruled that if performance of the employment creates the necessity for travel, the employee is still in the course of employment even if serving some personal purpose at the same time. However, if the purpose of the trip is primarily personal to the employee, he or she...