Opinion
Record No. 1909-94-1
Decided: April 18, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Herman M. Sawyer, Jr., on brief), for appellant.
(Stephen W. Robinson; Arlene Paul; McGuire, Woods, Battle Boothe, on brief), for appellee.
Present: Judges Benton, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Gail Delores Young contends (1) that the evidence proved she sustained an injury by accident arising out of and in the course of her employment and, (2) that the commission's findings are not supported by credible evidence. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the commission. Rule 5A:27.
Young was employed as a security guard for Potomac Electric Power Company ("PEPCO").
When she completed her work shift on May 31, 1993, she changed out of her uniform, turned in her equipment to the relief guard, left PEPCO's property, and walked toward her car. She and several other guards had recently begun to park their vehicles on property immediately outside and adjacent to PEPCO's fenced property.
As she approached her parked car, an automobile that was being followed by a police car on the city streets sped toward her and went out of control. As the automobile crossed the railroad tracks, it flipped over and landed upside down near Young. She was then standing outside the fence that surrounded PEPCO's property. Young reacted to avoid the automobile and returned to PEPCO's premises where she fainted. She sought compensation for injuries that she sustained and post-traumatic stress syndrome.
Young had the burden of proving that her injury arose out of and in the course of her employment. Kendrick v. Nationwide Homes, 4 Va. App. 189, 190, 355 S.E.2d 347, 347 (1987). However, a finding of the commission that an injury did or did not arise out of and in the course of employment is a mixed finding of law and fact and is properly reviewable on appeal. City of Richmond v. Braxton, 230 Va. 161, 163-64, 335 S.E.2d 259, 261 (1985).
"As a general rule, 'an employee going to or from the place where his work is to be performed is not engaged in performing any service growing out of and incidental to his employment.' Therefore, any injury received while going to or from work generally is not compensable." Kendrick, 4 Va. App. at 190-91, 355 S.E.2d at 347 (citations omitted). The rule has three exceptions:
"First: Where going to and from work the means of transportation is provided by the employer or the time consumed is paid for or included in the wages.
Second: Where the way used is the sole and exclusive way of ingress and egress with no other way, or where the way of ingress or egress is constructed by the employer.
Third: Where the employee on his way to or from work is still charged with some duty or task in connection with his employment."
Kendrick, 4 Va. App. at 191, 355 S.E.2d at 348 (citation omitted).
In addition, injuries sustained on the property and parking lots of employers are deemed to be within the course of employment. See Brown v. Reed, 209 Va. 562, 165 S.E.2d 394 (1969). This principle has been expanded to bring within the course of employment both public and private areas "in such proximity and relation as to be in practical effect a part of the employer's premises." Prince v. Pan American Airways, 6 Va. App. 268, 272, 368 S.E.2d 96, 97 (1988).
The commission found that Young failed to prove that she fell within one of these exceptions to the general rule. In support of that finding, the commission found that Young did not prove that her supervisors directed her to park in the area outside the security gate. This finding is supported by testimony the commission found to be credible. Although Young testified at the hearing that her supervisor told her that she could park in the area outside the security gate, she testified in her deposition that she parked there primarily for convenience. Young's co-worker, Daniel Tompkins, testified that the guards were not directed to park outside the gate, only that it was permitted. In view of the deposition testimony, the commission was entitled to discount Young's hearing testimony. Furthermore, Tompkins's testimony supports the commission's finding.
The commission also concluded that PEPCO could not be held liable merely because Young chose to park in an area near her work station. Young failed to prove that PEPCO exercised or could have exercised control over this area. No evidence proved that PEPCO owned, maintained, or controlled the area where Young stood when the automobile approached her. PEPCO's property was enclosed by a fence and it provided a parking lot for its employees that Young chose not to use. As the commission correctly found, "[c]overage beyond the property of the employer [is] not extended on these grounds."
Finally, the commission held that Young's argument that this was the sole ingress and egress to her work had no merit. Once Young was outside the gate, her travel was not restricted in any manner. She was on unrestricted property and she was not carrying out any work-related duty. No evidence established that no other means of ingress and egress were available to employer's property or that PEPCO required or expected Young to park her car in this area. Therefore, her injury did not arise out of and in the course of her employment.
Accordingly, we hold that the commission did not err in finding that Young's evidence failed to sustain her burden of proving that her injury arose out of and in the course of her employment. We also hold that credible evidence supports the commission's findings.
For the reasons stated, we affirm the commission's decision.
Affirmed.