Opinion
Record No. 0211-94-2
Decided: August 2, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(Michelle P. Wiltshire; Lynne Jones Blain; Morris and Morris, on briefs), for appellants.
(Patricia M. Brady, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Independent Life Accident Insurance Company (hereinafter referred to as "Independent Life" or "employer") and its insurer contend that the Workers' Compensation Commission erred in finding that Edward Brooke Johnson sustained an injury by accident arising out of and in the course of his employment on January 31, 1992. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.
On appellate review, we construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Factual findings of the commission will be upheld on appeal if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In ruling that Johnson's injury arose out of and in the course of his employment, the commission made the following factual findings:
Upon review of the evidence in this record we find that the employee [a debit insurance agent/salesman] maintained a base of operations in his home from which he operated, using his automobile Monday through Thursday to service his accounts, collect premiums, and sell new policies of insurance. On Friday, it was his duty to deliver the premiums collected during the week, together with executed company forms to Fredericksburg where he attended a sales meeting and also obtained information and materials for the next week's work.
We find specifically that the employee's travel to Fredericksburg on Friday from his home base in Crozet was as much a part of his duty as an outside salesman as was his 250-mile weekly travel between his home base and the homes of his current and potential policyholders. The statement by the manager that travel to Fredericksburg was not included in his expense reimbursement does not eliminate that travel from status as a work activity necessary to his employment responsibilities.
The commission also held that the "going and coming rule" was not applicable to this case, and that Johnson encountered an actual risk of his employment on Friday, January 31, 1992, at the time of the automobile accident, as he pursued his employment duties. Credible evidence supports the commission's findings.
Johnson's testimony and that of his supervisor established that, at the time of the accident, Johnson was traveling to Fredericksburg for the employer's sales meeting where he was expected to turn in the premium money he had collected that week. This meeting and the duties attached to it were integral parts of his employment. He was injured on a highway that was the most direct route between his home base and the employer's office in Fredericksburg, the place where he was to perform his assigned duties. At the time of the accident, he was on his employer's mission. Thus, credible evidence proved that Johnson's injury occurred in the course of his employment.
"To satisfy the 'arising out of' prong of the compensability test, [Johnson] had to prove that '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.' " Marketing Profiles, Inc. v. Hill, 17 Va. App. ___, ___, 437 S.E.2d 727, 729 (1993) (reh'g en banc) (citation omitted). "It is not necessary . . . that the employee show that his presence on the street or highway . . . exposes him to an increased hazard peculiar to the work and not common to the public generally." Immer Company v. Brosnahan, 207 Va. 720, 725, 152 S.E.2d 254, 257 (1967). An "actual risk test" has developed in street cases. Id. Injury under these circumstances is deemed to arise "in the course of the employment," provided the employee's "duties . . . require . . . [a] presence upon the public streets," and the "injury arose from an actual risk of that presence upon the streets." Sentara Leigh Hosp. v. Nichols, 13 Va. App. 630, 634, 414 S.E.2d 426, 428 (1992) (en banc).
Credible evidence proved that Johnson's employment duties required his presence on the highway. The accident occurred while Johnson was on a mission for his employer that required his presence on the road where he was subject to risks associated with the highway. He was traveling to the Fredericksburg office by the most direct route, and there was no deviation from his mission. Moreover, Johnson's description of the accident provides credible evidence to support the commission's conclusion that Johnson's injuries were caused by a risk of the street occasioned by his employment. Johnson's testimony established that an oncoming vehicle veered into his lane of travel, causing him to lose control of his vehicle.
We also agree with the commission that this case does not fall within the parameters of the "going and coming" rule. Under this rule, "an injury sustained while traveling to or from work is generally not compensable." Sentara, 13 Va. App. at 636, 414 S.E.2d at 429. The rationale for this rule is that the employee is not engaged in performing any service growing out of and incidental to his employment. Id. In this case, Johnson was traveling a direct route from his home base of business to another business site. He was not merely leaving his home to travel to a regular workplace. By traveling to Fredericksburg on Fridays to deliver the premium money to employer and to attend the sales meeting, Johnson was engaged in performing a service incidental to his employment.
Accordingly, we find that the commission did not err in finding that Johnson sustained his burden of proving an injury by accident arising out of and in the course of his employment.
For the reasons stated, we affirm the commission's decision.
Affirmed.