Robert George Woodward v. Hardee's, etc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
ROBERT GEORGE WOODWARD
MEMORANDUM OPINION *
v. Record No. 0504-96-3 PER CURIAM
AUGUST 13, 1996
HARDEE'S/BODDIE NOELL ENTERPRISES, INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Susan D. Oglebay, on brief), for appellant.
(Linda Davis Frith; Monica L. Taylor; Gentry,
Locke, Rakes & Moore, on brief), for
appellee.
Robert George Woodward contends that the Workers'
Compensation Commission erred in finding that the accident in
which his wife, Joyce Woodward, died did not arise out of and in
the course of her employment. Woodward argues that the
decedent's accident arose out of and in the course of her
employment under the "special errand doctrine" or the "personal
comfort doctrine" or some other exception to the "coming and
going" rule. 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.
Background
The decedent worked as a breakfast manager at employer's
restaurant. On May 19, 1993, the decedent worked from 4:00 a.m.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to 11:59 a.m. She left her workplace and drove home. The drive
from her workplace to her home took approximately one-half hour.
She had to return to her workplace at 2:00 p.m. for a manager's
meeting. Returning to the meeting, the decedent fell asleep
while driving and died as a result of a single automobile
accident.
Shift managers were required to attend a manager's meeting
once per month. Employer allowed managers to wait in the
restaurant's main dining room after their work shift until the
meeting time if they wished to do so. Employer paid managers for
their time spent at the manager's meetings and required them to
clock in when the meeting started and to clock out when the
meeting ended. Employer did not pay managers for time spent
traveling to the meetings or waiting in the restaurant before the
meeting started.
Special Errand Doctrine
"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). Woodward bore the
burden of proving that the decedent's accident arose out of and
in the course of her employment. Id.
As a general rule, injury or death which occurs while an
employee is traveling to or from work is not compensable.
Sentara Leigh Hosp. v. Nichols, 13 Va. App. 630, 636, 414 S.E.2d
2426, 429 (1992) (en banc). This rule, the "coming and going"
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. at 190, 355 S.E.2d at 347.
The special errand doctrine, an exception to the "coming and
going" rule, provides:
"When an employee, having identifiable time
and space limits on his employment, makes an
off-premises journey which would normally not
be covered under the usual going and coming
rule, the journey may be brought within the
course of employment by the fact that the
trouble and time of making the journey, or
the special inconvenience, hazard, or urgency
of making it in the particular circumstances,
is itself sufficiently substantial to be
viewed as an integral part of the service
itself."
Harbin v. Jamestown Village Joint Venture, 16 Va. App. 190,
193-94, 428 S.E.2d 754, 756 (1993) (citation omitted). This
doctrine applies where "the employee is given 'a temporary,
special assignment . . . [which] was outside the normal
performance of [the employee's] duties, and it clearly
represented a special benefit to the [employer].'" Id. at 195-
96, 428 S.E.2d at 757 (citation omitted).
The decedent was not on a special errand for the benefit of
her employer while she traveled back to her usual place of
employment to attend the manager's meeting. The meeting was a
part of her regular employment duties and did not constitute an
additional task or special assignment. The decedent's travel to
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her employer's premises falls within the "going and coming rule"
because she had not embarked on an "off-premises" journey at the
direction of or for the benefit of her employer.
Harbin, relied upon by Woodward, is distinguishable from
this case. Unlike Harbin, the decedent was not required to be
away from her employer's place of employment while performing a
duty assigned by the employer. Accordingly, the commission did
not err in finding that the special errand doctrine did not apply
to the circumstances of this case.
Personal Comfort Doctrine
Under the personal comfort doctrine "occasional breaks and
excursions for food, drink, rest and restroom visitation are
deemed to be in the course of employment." Ablola v. Holland
Road Auto Center, Ltd., 11 Va. App. 181, 183, 397 S.E.2d 541, 542
(1990). The doctrine applies only if "'the employee uses the
facilities furnished to him by the employer, or does not depart
from the employer's premises, or go to some place thereon where
he has no right to be.'" Kraf Constr. Servs., Inc. v. Ingram, 17
Va. App. 295, 299, 437 S.E.2d 424, 427 (1993) (citation omitted).
Assuming the decedent sought personal comfort by travelling
home before the meeting, she did not do so at facilities
furnished by employer or on employer's premises. Accordingly,
the commission did not err in finding that the personal comfort
doctrine did not apply to the circumstances of this case.
Other Exception
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Woodward argues that, even if the special errand and the
personal comfort doctrines do not apply, the commission erred by
not creating a new exception to the "coming and going" rule
because of the peculiar demands of the decedent's employment. We
find no support in the Act or the case law for such a contention.
Because Woodward failed to prove that any exception to the
"coming and going" rule applied to the circumstances of this
case, the commission did not err in finding that Woodward's
evidence did not prove that the decedent's accident arose out of
and in the course of her employment.
For these reasons, we affirm the commission's decision.
Affirmed.
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