CW, UEF v. Timothy J. Bauman and Leon Lovings/etc ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
COMMONWEALTH OF VIRGINIA,
UNINSURED EMPLOYER'S FUND
MEMORANDUM OPINION*
v. Record No. 1744-01-1 PER CURIAM
NOVEMBER 6, 2001
TIMOTHY J. BAUMAN AND
LEON M. LOVINGS/
LOVINGS VINYL & SIDING
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Randolph A. Beales, Attorney General;
John J. Beall, Jr., Senior Assistant Attorney
General; Christopher D. Eib, Assistant
Attorney General; Cheryl A. Wilkerson,
Assistant Attorney General, on briefs), for
appellant.
(Craig B. Davis; Geoffrey R. McDonald &
Associates, on brief), for appellee
Timothy J. Bauman.
No brief for appellee Leon M. Lovings/
Lovings Vinyl & Siding.
Commonwealth of Virginia, Uninsured Employer's Fund ("the
Fund") contends that the Workers' Compensation Commission erred
in finding that Timothy J. Bauman (claimant) proved that his
March 7, 1999 injury by accident occurred in the course of his
employment with Leon M. Lovings/Lovings Vinyl & Siding
(employer). Upon reviewing the record and the briefs of the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Fund and claimant, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the commission's
decision. See Rule 5A:27.
Whether an injury arose out of and in the course of
employment is a mixed question of law and fact, properly
reviewable on appeal. Dublin Garment Co. v. Jones, 2 Va. App.
165, 167, 342 S.E.2d 638, 638 (1986). Factual findings made by
the commission will be upheld on appeal if supported by credible
evidence. See James v. Capitol Steel Constr. Co., 8 Va. App.
512, 515, 382 S.E.2d 487, 488 (1989).
On March 7, 1999, claimant was injured in a motor vehicle
accident which occurred while he was driving his employer's
truck. Immediately before the accident, claimant had picked up
a co-worker, Ishom "Buck" Harris. At the time of the accident,
claimant and Harris were on their way to pick up Leon M.
Lovings, Jr., claimant's employer, at his home, and then they
planned to drive to the work site. Claimant had been working
for employer for approximately two months at the time of the
accident. Employer's business involved residential renovation.
Claimant was the only worker employed by Lovings, including
Lovings, who possessed a driver's license. Claimant and Lovings
agreed that claimant would keep employer's company truck at his
home and use it to pick up Lovings and other workers to travel
to and from work sites. The truck was also used to carry tools
owned by various workers and employer. Claimant maintained the
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truck, but Lovings reimbursed claimant for repair costs.
Lovings also paid for most gasoline expenses.
Claimant regularly picked up Lovings from his home and
drove him to the work sites. In addition, Lovings allowed
claimant to transport Harris to and from the work sites in the
truck. Claimant was permitted to use the truck after work hours
for other purposes for his convenience.
Harris testified that on a routine work day, claimant would
pick him up in the morning and they would travel to Lovings'
house. Once there, they would pick up the tools and Lovings and
then go to the job site. Harris testified that at the end of
the work day, he and claimant would drop off the tools, claimant
would take Harris home, and then claimant would go home. Harris
paid claimant ten dollars per week for his share of the gasoline
expenses.
Lovings agreed that claimant was "basically the designated
driver" and that providing the truck to him was a kind of
"perk." Lovings testified that it was up to claimant whether he
wanted to pick up Harris and that claimant was supposed to work
out arrangements with Harris with regard to gasoline expenses.
The "coming and going" rule provides that an injury
incurred while travelling to and from the workplace is generally
not compensable. See Kendrick v. Nationwide Homes, Inc., 4 Va.
App. 189, 190-91, 355 S.E.2d 347, 347 (1987). However, there
are three exceptions to the general rule:
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"First: Where in going to and from work the
means of transportation is provided by the
employer or the time consumed is paid for or
included in the wages.
Second: Where the way used is the sole and
exclusive way of ingress and egress with no
other way, or where the way of ingress and
egress is constructed by the employer.
Third: Where the employee on his way to or
from work is still charged with some duty or
task in connection with his employment."
Id. at 191, 355 S.E.2d at 348 (quoting Kent v. Virginia-Carolina
Chem. Co., 143 Va. 62, 66, 129 S.E. 330, 332 (1925)).
With respect to the first exception, the Supreme Court has
stated that
an injury sustained by a workman who is
provided with transportation when going to
and from his work, is considered as arising
out of his employment when such
transportation is the result of an express
or implied agreement between the employer
and his employee; or where the
transportation is furnished by custom to the
extent that it is incidental to and part of
the contract of employment; or when it is
the result of a continued practice in the
course of the employer's business which is
beneficial to both the employer and the
employee.
Bristow v. Cross, 210 Va. 718, 720-21, 173 S.E.2d 815, 816
(1970).
In ruling that claimant's evidence proved that the first
exception to the general rule applied to his claim, the
commission found as follows:
Although the claimant drove his wife's
car to work "a couple of times," this became
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inconvenient, and the employer and claimant
worked out an arrangement whereby the
claimant could drive the [truck] to and from
his home to work. The employer was aware
that the claimant would drive the truck to
work on the morning of the accident. The
employer paid for maintenance on the vehicle
and for gas. Harris, a co-worker, also
helped to provide gas money.
The claimant was the only worker,
including the employer, with a driver's
license. Therefore, the claimant was the
only means of transportation for any of the
workers to the work sites. Every morning,
the claimant would pick up Harris and the
employer and drive them to the work site.
This arrangement was mutually beneficial to
both the employer and the claimant. It was
convenient for the claimant in that he did
not have to use his wife's car or have her
drop him off every morning and it eliminated
his expenses in going to and from Lovings'
home. It facilitated the business interests
of the employer, ensuring that the vehicle,
which carrying [sic] supplies, would be
present at the work site, and ensuring that
the workers, including the employer, who did
not have driver's [sic] licenses, would be
present at work.
The commission's factual findings are supported by credible
evidence, including the testimony of claimant, Harris, and
Lovings. Based upon these findings, the commission could
reasonably infer that "the provision of transportation to the
[claimant] was the result of an agreement or custom which
benefited both the employer and employee. The employer provided
transportation under circumstances which would meet the
requirements of the first exception to the going and coming rule
. . . ."
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Because claimant's evidence met his burden of proving that
the first exception to the coming and going rule applied to his
claim, the commission did not err in finding that claimant met
his burden of proving that his injury by accident arose out of
and in the course of his employment. Accordingly, we affirm the
commission's decision.
Affirmed.
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