Janine N. Carlson v. Dept.Mililtary Aff./CW ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
JANINE NANNETTE CARLSON, ET AL.
OPINION BY
v. Record No. 1626-97-2 JUDGE JAMES W. BENTON, JR.
FEBRUARY 17, 1998
DEPARTMENT OF MILITARY AFFAIRS/
COMMONWEALTH OF VIRGINIA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Benjamin H. Woodbridge, Jr. (Woodbridge &
Reamy, on brief), for appellants.
Ingrid E. Olson, Assistant Attorney General
(Richard Cullen, Attorney General; Gregory
Lucyk, Senior Assistant Attorney General, on
brief), for appellee.
Timothy Eric Carlson, a member of the Virginia National
Guard, was killed in a car accident while en route to his base
for training. His widow, Janine Carlson, appeals from a Workers'
Compensation Commission decision denying an award of death
benefits and funeral expenses. The commission ruled that
Carlson's death did not arise out of, or in the course of, his
employment because Carlson's death occurred while he was going to
work and did not fall within any of the well recognized
exceptions to the "coming and going" rule. We affirm the
decision.
I.
On the weekend of December 4 and 5, 1993, Carlson was on
"inactive duty training" with the Virginia National Guard at Fort
A.P. Hill in Bowling Green, Virginia. Carlson's widow testified
that Carlson reported for duty on Saturday morning, December 4,
and that she met him later that afternoon at Fort A.P. Hill to
attend a Christmas dinner sponsored by the National Guard. When
the dinner ended at 8:00 p.m., the Carlsons left together and
returned to their home in Fredericksburg.
Carlson left home to return to Fort A.P. Hill at 7:00 a.m.
Sunday morning with Randall Lincoln, who was also a member of the
National Guard. Lincoln was driving southbound on Route 2 in
Caroline County and was traveling at a high rate of speed in
rainy weather when he lost control of the car and collided with
another vehicle. Carlson died in the accident.
Lieutenant Colonel Jeffrey Allen testified that "according
to the training schedule, . . . [Carlson] was to report at 7:30
in the morning on Saturday, be dismissed later that afternoon at
approximately 4:30, and to return home, and he was to come back
on Sunday at 7:30 in the morning, and be released at about 4:30
in the afternoon on Sunday." Allen also testified that the
weekend drill was made up of four four-hour blocks of time called
unit training activity periods. Carlson completed two unit
training activity periods on Saturday. According to a Statement
of Medical Examination and Duty Status, which was stipulated as
evidence, Carlson's inactive duty training began at 8:00 a.m. on
Saturday, December 4 and was to end at 3:30 p.m. on Sunday,
December 5.
Allen further testified that the National Guard neither
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reimbursed Carlson for mileage between his home and Fort A.P.
Hill, nor provided Carlson with transportation between his home
and Fort A.P. Hill. Allen testified that Carlson was not tasked
with any work assignment when he travelled between his home and
Fort A.P. Hill and that Carlson "was simply coming to work" on
Sunday when the accident occurred. Allen also testified that
members of the National Guard generally would not spend the night
at Fort A.P. Hill. They would be released by the commanding
officer to return home and would report for duty the next
morning.
Denying an award, the commission ruled that Globe Indemnity
Co. v. Forrest, 165 Va. 267, 182 S.E. 215 (1935), did not control
this fact situation and made the following findings:
[Carlson] was attending a weekend drill which
consisted of four, four-hour training
periods. He was free to leave the post after
the completion of the second four-hour
training period on Saturday, December 4,
1993, as noted above. It was not necessary
that [Carlson] obtain a pass to leave the
post, as was the case with [the guardsman in
Forrest]. While his employment status as a
guardsman may have been of a continuing
nature, as would have been the situation with
normal civilian work, his dependents must
still show that he was charged with some duty
of his employment at the time of his injury,
or that this case falls within one of the
exceptions to the "going and coming" rule, as
noted by the Deputy Commissioner.
II.
Carlson's widow argues that Forrest supports her entitlement
to an award. Although the Department of Military Affairs
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concedes that Carlson was an employee of the National Guard at
the time of his death, see Code § 65.2-101, it argues that
Carlson's widow did not meet her burden of proving that Carlson's
death arose out of and in the course of his employment with the
National Guard.
A claimant for death benefits under Code § 65.2-512 must
prove that the employee's death arose out of and in the course of
the employment. See Baggett Transportation Co. v. Dillon, 219
Va. 633, 636-37, 248 S.E.2d 819, 821 (1978).
The expressions "arising out of" and "in
the course of" are used conjunctively and are
not synonymous. Both conditions must be
present before compensation can be awarded.
The words "arising out of" have been
construed . . . to refer to the origin or
cause of the injury, and the words "in the
course of" refer to the time, place and
circumstances under which the accident
occurred.
[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.
. . . [A]n 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
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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."
Thus it clearly appears that in order
for an injury to be compensable on the ground
that it arose out of and in the course of
employment it is not enough to show merely
that the accident occurred during the period
of the employment and while the employee was
about his master's business. It must also be
shown that the accident occurred at a place
where, from the nature of the work, the
employee was reasonably expected to be.
Conner v. Bragg, 203 Va. 204, 208-09, 123 S.E.2d 393, 396-97
(1962). "Whether an accident arose out of and in the course of
employment is a mixed question of law and fact and is properly
reviewable on appeal." Kendrick v. Nationwide Homes, Inc., 4 Va.
App. 189, 190, 355 S.E.2d 347, 347 (1987).
As a general rule, an injury or death is not compensable if
it occurs while an employee is traveling to or from work. See
Harbin v. Jamestown Village Joint Venture, 16 Va. App. 190, 193,
428 S.E.2d 754, 756 (1993); Sentara Leigh Hosp. v. Nichols, 13
Va. App. 630, 636, 414 S.E.2d 426, 429 (1992). This rule is
premised upon the principle that an employee traveling to or from
his workplace "is not engaged in performing any service growing
out of and incidental to his employment." Kendrick, 4 Va. App.
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at 190, 355 S.E.2d at 347. However, several exceptions exist to
the "coming and going" rule. Id. The following three exceptions
are generally recognized: "(1) where the means of transportation
used to go to and from work is provided by the employer or the
employee's travel time is paid for or included in wages; (2)
where the way used is the sole means of ingress and egress or is
constructed by the employer; and (3) where the employee is
charged with some duty or task connected to his employment while
on his way to or from work." Sentara, 13 Va. App. at 636, 414
S.E.2d at 429. The burden of proof is upon the dependents of the
deceased employee to establish by a preponderance of the evidence
that one of these exceptions applies. See id. at 636, 414 S.E.2d
at 430.
The evidence proved that Carlson was traveling from his home
to his duty station at Fort A.P. Hill when he was killed. The
evidence in this case readily eliminates the first and second
exceptions to the "coming and going" rule. First, the
uncontradicted evidence proved that Carlson was not reimbursed by
the Department for travel en route to training. Allen testified
that Carlson was not reimbursed by the Department for mileage and
that transportation was not provided by the National Guard.
Second, Lincoln and Carlson were traveling on Route 2 in Caroline
County at the time of the accident. That route is a public
highway, was not constructed by the Department, and was not the
sole means of ingress and egress to Fort A.P. Hill.
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As to the third exception, the record contains testimony of
Lieutenant Colonel Allen that Carlson was not engaged in any duty
or task connected with his employment while en route to Fort A.P.
Hill. After Carlson completed his two unit training activity
periods on Saturday, he was released to go home and was at
liberty to do as he pleased until he reported to base on Sunday
morning. Carlson's only responsibility was to return to Fort
A.P. Hill on Sunday at 7:30 a.m. His obligation to report to his
duty station does not equate to having a responsibility to the
National Guard while he was en route to Fort A.P. Hill.
Nonetheless, Carlson's widow argues that this case is
governed by Forrest and that Carlson's duty status is the
dispositive factor. We disagree. The commission correctly ruled
that the holding in Forrest is not dispositive of the issue in
this case.
Forrest was an enlisted member of the Virginia National
Guard attending an annual two week encampment at Virginia Beach
in August 1933. 165 Va. at 268, 182 S.E. at 215. Forrest left
the military camp at 7:30 p.m. on a pass and visited places of
amusement in the town of Virginia Beach. At 10:00 p.m., a
lieutenant in the military police ordered Forrest to take two
intoxicated National Guard soldiers back to the military camp.
While Forrest was returning to the military camp with the
intoxicated National Guard soldiers, Forrest and one of the
soldiers sat on a railroad track. When a train approached,
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Forrest attempted to move the intoxicated soldier from the tracks
and was injured by the train. Id. at 269, 182 S.E. at 216. The
commission awarded Forrest benefits under the Workmen's
Compensation Act, and the employer and its insurer appealed.
The Supreme Court stated the issue in Forrest as follows:
The contention of the appellant, who is the
insurance carrier is that the accident did
not arise out of and in the course of
[Forrest's] employment, but that it was the
result of misconduct on the part of [Forrest]
which bars him from the allowance of
compensation. . . .
As to the first contention, the carrier
urges that, when [Forrest] was given a pass
to leave the military reservation for
Virginia Beach and proceeded to avail himself
of its privileges, there was a cessation of
the relation of master and servant between
himself and the State of Virginia, his
employer.
165 Va. at 270, 182 S.E. at 216 (emphasis added).
We believe the Supreme Court's description of the issue and
argument of the insurance carrier manifestly established that the
Forrest decision primarily decided whether Forrest was an
employee of the National Guard when he was injured. Even though
in 1935, when Forrest was decided, the Act stated that "the term
'employee' shall include the officers and members of the national
guard," Code § 1887(2)(a) (1930), that provision of the Act
merely brought the National Guard within the purview of the Act
and did not further delimit when the period of employment began
and ended.
The Forrest decision clearly held that although Forest was
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on a pass for recreational leave, the employment relationship
still existed because Forrest was on active duty. 165 Va. at
270, 182 S.E. at 216. The Court rejected the argument that
Forrest's release on a pass "constituted a severance of the
relation of master and servant" between the National Guard and
Forrest. Id. The Court emphasized the continuing nature of
Forrest's employment and held that "'the relationship of master
and servant was continuous from the moment when Forrest
reported . . . in compliance with the orders from his employer,
the State of Virginia, until he was released from active
employment by the termination of said orders.'" Id. at 271, 182
S.E. at 216 (citation omitted). This and other pertinent
discussions in Forrest are germane solely to the insurer's
argument concerning Forrest's employment relationship.
We concede, as we must, that one reading of Forrest suggests
that because the Court affirmed the award of benefits, the Court
also necessarily decided that the event that injured Forrest also
arose out of Forrest's employment. Although the Forrest opinion
notes that "it is unnecessary to discuss the effect of the
[lieutenant's] order" that Forrest was implementing when Forrest
was injured, the opinion points out "Forrest's immediate
obedience to the command of his superior officer but emphasizes
the continuity of the relationship of master and servant." 165
Va. at 273, 182 S.E. at 217. Indeed, in a later decision, see
Norfolk & Washington Steamboat Co. v. Holladay, 174 Va. 152, 5
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S.E.2d 486 (1939), the Supreme Court observed "that [Forrest]
turned upon whether there had been a temporary cessation of the
relationship of master and servant." Holladay, 174 Va. at 161, 5
S.E.2d at 490. Significantly, however, the Court in Holladay
reiterated the evidence that the Forrest opinion declared
unnecessary, viz. that Forrest "had been instructed by his
superior officer to assist in returning to camp" the intoxicated
soldier. Holladay, 174 Va. at 161, 5 S.E.2d at 490. We
conclude, therefore, that the Supreme Court tacitly recognized in
Holladay that the evidence in Forrest proved that Forrest was
acting under orders and, thus, was engaged in an activity that
arose out of his employment. In any event, we do not read
Forrest to hold that every injurious event suffered by a member
of the National Guard arises out of and in the course of
employment whenever the member is "on duty."
Credible evidence in the record supports the commission's
finding that Carlson was not engaged in an activity that arose
out of his employment. First, the evidence proved that Carlson
was on "inactive" duty training and not on "active" duty
training. See Code § 44-41; Code § 44-83. Lieutenant Colonel
Allen testified that "according to the training schedule . . .
[Carlson] was to report at 7:30 in the morning on Saturday, be
dismissed . . . at approximately 4:30, and to return home,
and . . . come back on Sunday at approximately 7:30 in the
morning, and be released at about 4:30 in the afternoon on
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Sunday." He also testified as follows:
Q. [B]ut the records reveal that he was
activated for duty that weekend -- I mean,
this was a weekend drill that required his
presence at A.P. Hill?
A. That's correct. And . . . a weekend
drill typically is made up of what we call
four, four hour blocks of time which we refer
to as unit training activity periods, or
U.T.A.'s. So there would have been two
U.T.A.'s on Saturday performed, or four --
two four hour blocks of, of training, . . . .
Thus, Carlson was not in uninterrupted, continuous service for
the two-day period of "inactive" duty training.
Second, Allen testified that Carlson was not reimbursed for
mileage to and from his home and Fort A.P. Hill, that the
National Guard did not provide for Carlson's transportation
between his home and Fort A.P. Hill, and that Carlson was not
tasked with any National Guard duty while going from his home to
Fort A.P. Hill.
Carlson's duty orders clearly establish that he was an
employee of the National Guard, a prerequisite for coverage under
the Act. See Code § 65.2-101; Forrest, 165 Va. at 271, 182 S.E.
at 216; Cotman v. Green, 4 Va. App. 256, 258, 356 S.E.2d 447, 448
(1987). However, the evidence supports the commission's finding
that Carlson was not performing any task of his employment when
he was travelling from his home to Fort A.P. Hill. Accordingly,
we hold that Carlson's widow has not carried her burden of
proving that her husband's death arose out of and in the course
of his employment with the National Guard. For the reasons
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stated, the decision of the commission denying benefits is
affirmed.
Affirmed.
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