Gloria B. Jenkins v. Nat'l Fruit Product Co. ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia
GLORIA B. JENKINS
MEMORANDUM OPINION * BY
v. Record No. 2064-01-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 7, 2002
NATIONAL FRUIT PRODUCT COMPANY, INC.
AND FIRST LIBERTY INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Nikolas E. Parthemos (Parthemos & Bryant,
P.C., on brief), for appellant.
J. David Griffin (Fowler, Griffin, Coyne,
Coyne & Patton, P.C., on brief), for
appellees.
Gloria B. Jenkins (claimant) contends the Workers'
Compensation Commission (commission) erred in finding that her
accident of January 4, 2000 did not arise out of her employment
with National Fruit Product Company, Inc. (employer). Finding
no error, we affirm the commission's decision.
I. FACTS
We view the evidence in the light most favorable to the
employer, who prevailed below. See Westmoreland Coal v.
Russell, 31 Va. App. 16, 20, 520 S.E.2d 839, 841 (1999). The
commission's factual findings are conclusive and binding on this
* Pursuant to Code § 17.1-413 this opinion is not
designated for publication.
Court when those findings are based on credible evidence. See
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989); Code § 65.2-706. "The fact that there
is contrary evidence in the record is of no consequence."
Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d
32, 35 (1991).
On January 4, 2000, claimant, a label machine operator for
employer, began work at 5:00 p.m. and she expected to work until
3:30 or 4:30 a.m. During each shift, employer allowed employees
two fifteen minute breaks and a dinner break. Employees did not
"clock out" for breaks. During claimant's 6:30 p.m. break, she
left her work area to put a ceramic dog she purchased from a
co-worker in her car which was located in a parking lot across a
public highway, Route 522. The ceramic dog had no relationship
to her job or her employer. Claimant was crossing Route 522
when she was struck by a car. The extent of her injuries and
her period of disability are not at issue in this case.
Claimant's car was parked in a gravel lot owned by the
railroad. Employees of National Fruit were allowed to park in
the railroad's gravel lot, a lot owned by employer also located
across Route 522 and on the streets near the plant. The
employer stated, "[I]f [the employees] park in the gravel lot,
that's always at their own risk because that's owned by the
railroad." Employer did not direct its workers where to park.
Employer provided a parking decal for those workers who chose to
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park in the gravel lot as a method of identification, but most
employees did not use the permit.
The deputy commissioner found that the "personal comfort"
doctrine applied to the instant case and held that "[i]t would
be unsafe and inconvenient for an employer to have employees
keeping personal items around the work area." The commission
reversed finding that neither the public street nor the adjacent
parking lot met the "extended premises" requirement.
[W]e held that injuries suffered while on a
personal comfort break are compensable only
if such break is taken on the premises or
extended premises of the employer, or at a
place or facility designated by the
employer, or at a place and facility
designated by the employer for such a
purpose, or incidental to required travel
outside the employer's premises to perform
such duties.
The "extended premises" rule has been
analyzed by the Commission and the courts
extensively relative to the "going and
coming" rule."
* * * * * * *
[T]he evidence does not establish that the
parking lot was reserved for the exclusive
use of the employer's workers. The record
reflects that the lot is owned by the
railroad and is used by the employer's
workers, but does not reflect that such use
is exclusive . . .[nor] that this parking
lot is maintained and controlled by
employer. No evidence was presented as to
whether the employer leased this parking
lot . . . and [contrary to the deputy
commissioner's finding] nothing prevent[ed]
employees from parking on streets adjacent
to the premises. . . .
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[W]e find the evidence insufficient to
establish that the employer controlled or
maintained the public street on which the
claimant was injured. Therefore, we find
that the public street is not an extension
of the employer's premises. Further, the
evidence does not establish that either the
public street or the parking lot is
analogous to the sole means of ingress or
egress referred to in Barnes[v. Stokes, 233
Va. 249, 355 S.E.2d 330 (1987),] and
Painter[v. Simmons, 238 Va. 196, 380 S.E.2d
663 (1989)].
Claimant appealed that decision.
II.
Appellant contends the commission erred in finding her
accident did not arise out of her employment. She argues that
the personal comfort doctrine controls the outcome and that the
public street she had to cross to get to the parking lot was an
extension of the employer's premises.
Assuming without deciding that the facts of this case
establish a basis for the personal comfort doctrine, credible
evidence supports the commission's finding that neither the
parking lot nor the public highway were part of the employer's
"extended premises."
The question of "[w]hether an accident arises out of the
employment is a mixed question of law and fact and is reviewable
by the appellate court." Plumb Rite Plumbing Service v.
Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305, 305 (1989). An
injury arises out of the employment where "[t]here is apparent
to the rational mind upon consideration of all the
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circumstances, a causal connection between the conditions under
which the work is required to be performed and resulting
injury." Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E.
684, 686 (1938). "'The mere happening of an accident at the
workplace, not caused by any work related risk . . . is not
compensable.'" Ogden Allied Aviation v. Shuck, 17 Va. App. 53,
54, 434 S.E.2d 921, 922 (1993) (quoting Barbour, 8 Va. App. at
484, 382 S.E.2d at 306), aff'd on reh'g en banc, 18 Va. App.
756, 446 S.E.2d 898 (1994).
In Stone v. Keister's Market, 34 Va. App. 174, 538 S.E.2d
364 (2000), a factually similar case, the claimant was crossing
a public highway to reach the lot where her car was parked when
she was struck by a car. We held:
[i]n the present case, the parking lot was
neither owned nor maintained by employer,
and claimant was not required to park there.
While employees could not park on the
employer's premises, they could park any
other place they chose. Employer did not
pay for employees' parking, did not
designate parking spaces for the employees,
and the lot was not used exclusively by
employees. [T]he parking lot was neither
owned or [sic] maintained by employer and
its use was not an incident of employment.
Id. at 182, 538 S.E.2d at 368. While claimant in the instant
case was on a work break, rather than leaving the workplace,
this distinction is of no moment.
In Ramey v. Bobbitt, 250 Va. 474, 463 S.E.2d 437 (1995),
Ramey was struck and killed by a motor vehicle on a public
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street adjacent to his employer's premises. The Supreme Court
held "[t]he public street was not in such relation to
[employer's] plant that it was in practical effect part of
[employer's] premises. Nor was it a place where [employer]
expected Ramey to be for employment purposes." Id. at 479, 463
S.E.2d at 441.
In Hunton & Williams v. Gilmer, 20 Va. App. 603, 460 S.E.2d
235 (1995), Gilmer slipped and fell in a parking garage across
the street from her office. Her employer arranged with the
lot's owner to reserve a certain number of spaces for its
workers and deducted the cost of the parking spaces from the
employees' pay. We held that "no evidence showed that
[employer's] employees were required to park in the [bank]
parking garage or that Gilmer sustained her injury in an area of
the parking lot reserved for [employer's] employees only. Thus,
. . . no evidence disclosed any control or authority by
[employer] over the area in which Gilmer parked." 1
The instant case is controlled by the analysis of Gilmer
and Stone. The parking lot at issue was neither owned nor
controlled by employer. Employees were allowed, but not
required, to park in the lot. Public parking was allowed on
Route 522. The public highway was neither controlled nor
1
Claimant contends that the Ramey and Gilmer "extended
premises" analysis should be limited to the initial arrival and
departure from work, and not to an employee excursion during
normal work hours. We find no support for that limitation.
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maintained by employer and was not the sole means of ingress and
egress to the workplace. 2 Thus, credible evidence supports the
commission's finding that claimant's injury did not arise out of
her employment. The decision of the commission is affirmed.
Affirmed.
2
We note that Stone also makes clear that the situs of the
accident as a public highway is not dispositive. "If claimant
would have met the criteria of Barnes and its progeny, the fact
that she was injured on a public road leaving work and going
directly to her car would not have defeated her claim." Stone,
34 Va. App. at 183 n.1, 538 S.E.2d at 369 n.1.
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