Sentara Leigh Hospital v. Nichols , 13 Va. App. 630 ( 1992 )

ON REHEARING EN BANC

Opinion

KOONTZ, C.J.

On July 1, 1991, a panel of this Court reversed a decision of the Virginia Workers’ Compensation Commission.^* 12 Va. App. 841, 407 S.E.2d 334 (1991). A dissenting opinion was filed in the panel decision. Pursuant to Code § 17-116.02(D), the Court convened en banc to reconsider the issue of whether the commission erred in finding that the injury sustained by Vernetta Nichols, claimant, was caused by an accident which arose out of and in the course of her employment with Sentara Leigh Hospital, employer.

The relevant facts are not in dispute. Claimant was employed by employer as a private duty and home care nurse. On March 7, 1988, at approximately 6:30 a.m. claimant was injured in an automobile accident while traveling from her home to a patient’s home in her personal car. She suffered major post-traumatic disc herniation as a result of this accident. Three days prior to the accident, employer directed claimant to report to this particular patient’s home. On other occasions, claimant received orders from employer by telephone which would advise her “how many hours [she] would have to be [at a patient’s home]” and she received the orders “on a daily or weekly basis because sometime (sic) it was just a straight case until the patient expired.”

Upon these facts, it is clear that claimant’s injury did not occur on employer’s premises or at claimant’s workplace. Thus, employer asserts on appeal, as it did before the commission, that claimant was “going to” her work place when she was injured and, consequently, her injury is not compensable. In response, claimant asserts that she was not “going to” her work place, but, rather, was “on the job” serving the interests of her employer in traveling to the patient’s home and was fulfilling one of the duties of her employment in doing so when her injury occurred. Consequently, she asserts her injury is compensable.

The commission rejected employer’s assertion and held: “The claimant was not going to her work when she was injured. Her job was to travel to the [patients’] homes and perform nursing services. The claimant was performing her work when she was injured.” Relying upon Dreyfus & Co. v. Meade, 142 Va. 567, 129 S.E. 336 (1925), and Norfolk & Washington Steamboat Co. v. Holladay, 174 Va. 152, 5 S.E.2d 486 (1939), the commission found that claimant was one of a class of employees whose duties to their employers require their presence upon the public streets and are covered from hazards incident to street travel by workers’ compensation.

We begin our analysis upon well established principles that guide our resolution of this appeal. Pursuant to former Code § 65.1-7 (now Code § 65.2-101 (B)(11)), in order for claimant to recover for her injuries, she must prove by a preponderance of the evidence an injury by accident “arising out of and in the course of’ her employment. See also Code § 65.2-300. Whether an accidental injury arose out of and in the course of employment is a mixed question of law and fact and is properly reviewable on appeal. See Classic Floors, Inc. v. Guy, 9 Va. App. 90, 383 S.E.2d 761 (1989); Park Oil Co. v. Parham, 1 Va. App. 166, 336 S.E.2d 531 (1985).

“The phrases arising ‘out of and arising ‘in the'course of are separate and distinct .... The phrase arising ‘in the course of refers to the time, place, and circumstances under which the accident occurred. The phrase arising ‘out of refers to the origin or cause of the injury.” County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). However, while these terms involve separate and distinct concepts, “the two are not totally independent; frequently proof of one will incidentally tend to establish the other.” V.P.I. & State Univ. v. Wood, 5 Va. App. 72, 75, 360 S.E.2d 376, 378-79 (1987). Similarly, these terms cannot be applied properly in a vacuum; the peculiar circumstances of each case are crucial to the proper application of these terms. This is particularly so when, as here, the injury to the claimant occurs at a place other than the employer’s premises or claimant’s workplace.

Thus, in the present case, if the commission properly found that at the time of her injury claimant was not going to work but, rather, was fulfilling her duties to her employer by traveling upon the public streets, then it necessarily follows that her injury arose “in the course of’ her employment. Moreover, because the risk of injury in an automobile accident is an accepted hazard or “actual risk” to such travel any injury suffered in the course of her employment while on the public streets thus also arose “out of’ her employment. However, if the commission erred in finding that claimant was within a class of employees protected from accidental injuries upon the public streets, then contrary to its finding, she was “going to” work and the compensability of her claim depends upon the applicability of the well established exceptions to the general rule that such injuries do not arise “in the course of’ the employment.

In Virginia we have long recognized the general principle upon which the commission found that claimant was one of a class of employees whose duties of employment require their presence or travel upon the public streets and are covered from hazards incident to that presence or travel by workers’ compensation. See Immer & Co. v. Brosnahan, 207 Va. 720, 152 S.E.2d 254 (1967); Norfolk & Washington Steamboat Co. v. Holladay, 174 Va. 152, 5 S.E.2d 486 (1939); Cohen v. Cohens Dep’t Store, Inc., 171 Va. 106, 198 S.E. 476 (1938); Dreyfus & Co. v. Meade, 142 Va. 567, 129 S.E. 336 (1925). In such cases, once commonly referred to as “street cases,” we employ the “actual risk” test to the determination of whether the injury arose “out of’ the employment. See, e.g., Hill City Trucking, Inc. v. Christian, 238 Va. 735, 739, 385 S.E.2d 377, 380 (1989).

A review of the factual circumstances in all of the “street cases” and an effort to distinguish and reconcile them is not warranted here. In our view, the Virginia cases have not departed from the requirement that a claimant must establish by a preponderance of the evidence (1) that his or her duties to the employer require his or her presence upon the public streets, and (2) that his or her injury arose from an actual risk of that presence upon the streets in order to come within the protection of the principle established by these cases. Although closely related, these are separate factors necessary to establish a compensable claim. The focus of the present appeal is on the first factor. A claimant can carry the burden of proof on this factor by establishing that he or she is within an acknowledged class of employees, such as traveling sales personnel, truck drivers, messengers and delivery personnel, who, by the very nature of their employment, are required to be present upon the public streets and, thus, are exposed to the hazards of the streets. Depending upon the particular facts relating to the duties and nature of the employment, the list of other protected employees is potentially, and rightfully so, without limit.

It may well be that many home care nurses, because of the duties of their employment, are required to travel upon the public streets and, thus, come within the protection of the “street case” principles. Nothing in the record, however, establishes that all home care nurses come within such a class of employees. Consequently, claimant had the burden of proving by a preponderance of the evidence that the duties of her employment required her to travel upon the public streets.¹ In our view, she failed to do so.

The record does not establish whether claimant was paid mileage expenses by her employer or whether her salary was adjusted in any way to compensate for her travel. Without such evidence, it cannot be assumed that her compensation began at any time other than when she began her nursing duties at a particular patient’s home. Similarly, although employer required claimant to arrive at a patient’s home at a specific time, the record does not establish that the particular manner in which claimant was dispatched to various job sites was actually furthering her employer’s business interests. Moreover, claimant’s testimony that she received telephone orders from employer which would advise her of “how many hours [she] would have to be [at a patient’s home]” and that she received her orders “on a daily or weekly basis,” does not establish that she was required to travel among various patient’s homes during a given day. This evidence is just as consistent with a requirement that claimant attend a single patient for a number of hours per day or for a number of days or weeks. In the absence of evidence establishing the duties of claimant’s employment, the record does not support the.commission’s conclusion that claimant proved that she was within the class of employees whose duties required their travel upon the public streets or that her particular employment duties required such travel. In short, the commission erred when it found that claimant was not “going to” work when the injury occurred.

We turn now to consider the compensability of claimant’s injury based upon the initial determination that she was going to work when the injury occurred. “As a general rule, ‘an employee going to or from the place where [her] work is to be performed is not engaged in performing any service growing out of and incidental to [her] employment.’ ” Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 190, 355 S.E.2d 347, 347 (1987)(quoting Boyd’s Roofing Co. v. Lewis, 1 Va. App. 93, 94, 335 S.E.2d 281, 282 (1985)). Thus, an injury sustained while traveling to or from work is generally not compensable. Id. at 190-91, 355 S.E.2d at 347. An accidental injury sustained when the employee is “going to” work does not arise “in the course of’ the employment simply ber cause the employee at that time and place is not yet “on the job.’’² There are, however, three exceptions to this rule: (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. Id. at 191, 355 S.E.2d at 347-48.

As previously noted, the burden is on claimant to establish by a preponderance of the evidence the compensability of her claim. Thus, she has the burden to prove by a preponderance of the evidence that one of these exceptions to the “going to and from work” rule applies to her claim.

The applicability of the second and third exceptions may be readily eliminated. Claimant was injured on a public street. She does not assert that this street was the sole means of ingress and egress to her work site or was constructed by her employer. Moreover, claimant offered no evidence that employer requested her to perform any duty or task connected to her employment while on her way to work. Accordingly, neither of these exceptions is applicable to her claim.

With regard to the first exception, which is frequently referred to as “the transportation exception” to the going to and from work rule, it is clear that the claimant’s means of transportation for going to or from work was not provided by employer. Claimant concedes that her means of transportation was her “personal car.” The dispute then centers on whether claimant established by a preponderance of the evidence that the second portion of the transportation exception is applicable to her claim. That is, whether her travel time was paid for or included in her compensation.

In Provident Life & Accident Ins. Co. v. Barnard, 236 Va. 41, 372 S.E.2d 369 (1988), our Supreme Court concluded:

[IJnjuries sustained during the course of travel are compensable under the Workers’ Compensation Act whenever the employer, for his own convenience or because of the location of the work place or places, agrees to provide the employee transportation by company vehicle or public conveyance; or to pay the employee wages or salary for the time spent in travel required by the work; or to reimburse the employee expenses incurred in the operation of his own vehicle in the performance of his duties.

Id. at 47, 372 S.E.2d at 372-73 (emphasis added).

The present case is not a case involving an employee injured while traveling from one job site to another. It is undisputed that claimant was injured while on her way from home to the job site. As we have previously noted, the record does not establish that on the day of her injury, claimant was required to travel to any other patient’s home other than the particular patient’s home to which she was traveling. Moreover, the record does not establish that on any other day, her duties required that she travel to the home of more than one patient rather than attending to one patient on a daily or weekly basis. Accordingly, we need not, as we did in our prior panel decision, draw a distinction, if valid, between the compensability of an injury sustained in travel to the first place of assignment and one sustained during additional travel between the homes of patients later in the same day. See Thomas v. Staff Builders Health Care, 168 Mich. App. 127, 424 N.W.2d 13 (1988). We leave that issue to be resolved at another time. Here, unlike the traveling employee in Provident Life & Accident Ins. Co. v. Barnard, who was paid a salary to compensate for the time spent in travel as well as for the time spent at his several job sites and received a mileage allowance for the use of his personal automobile, claimant has not established by a preponderance of the evidence any such compensation. The commission is not entitled to make such an assumption. Accordingly, we find this exception is not applicable to this case.

In summary, we find that claimant has not carried her burden of proof to establish the compensability of her claim and, for the reasons stated, the decision of the commission awarding compensation benefits to claimant is reversed and her claim is dismissed.

Reversed and dismissed.

Báker, J., Duff, J., Moon, J., Willis, J., Elder, J., and Bray, J., concurred.

* Formerly the Industrial Commission of Virginia.

1 We do not hold, as the dissent suggests, that an employee must prove that he or she is within an acknowledged class of employees whose duties require their presence or travel upon the public streets to be entitled to compensation for injuries from an automobile accident. Rather, we hold that if the employee does not prove that he or she is within such a class of employees, then he or she must prove that the duties of the particular employment in question required the employee’s travel or presence upon the public streets and, thus, exposed the employee to the actual risk of that presence or travel. We agree that a single venture onto the street if proven to be on a mission of the employment gives rise to compensation when the employee is injured in an automobile accident.

2 We recognize that the “going to and from work” rule is generally applicable to employees having fixed hours and place of work. For the reasons expressed throughout this opinion, we hold that claimant here established no more than that on the day of her injury her place of work was at the home of the particular patient’s home to which she was traveling.