Cadmus Magazines & Royal Ins.Co.v Anthony Williams

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Baker
Argued at Richmond, Virginia
CADMUS MAGAZINES
and ROYAL INSURANCE COMPANY OF AMERICA
OPINION BY
v. Record No. 2182-98-2 JUDGE JOSEPH E. BAKER
JUNE 29, 1999
ANTHONY R. WILLIAMS
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
John M. Oakey, Jr. (McGuire, Woods, Battle &
Boothe, LLP, on brief), for appellants.
Louis D. Snesil (Louis D. Snesil, P.C., on
brief), for appellee.
Cadmus Magazines and Royal Insurance Company of America
(jointly referred to herein as employer) appeal from an award of
benefits by the Workers' Compensation Commission (commission) to
Anthony R. Williams (claimant) for injuries incurred on employer's
premises as claimant was returning to work at the end of his lunch
break after having smoked cigarettes during that break while
seated in a car parked on employer's parking lot. Although the
parties debate whether the personal comfort doctrine required such
award, we view the pivotal issue to be simply whether the
commission correctly ruled that claimant was injured in the course
of his employment. There are no significant disagreements with
the facts contained in the commission's opinion. For the
following reasons, we affirm the commission's award.
I.
Claimant worked for employer as an assistant mailing machine
operator. On November 21, 1997, he was working the 7:00 p.m. to
7:00 a.m. shift. When the machine operator called for a break,
claimant ate lunch in employer's cafeteria, located within
employer's building. The lunch break lasted thirty minutes, and
claimant ate quickly in order to have time to smoke cigarettes
before returning to work. Although employer prohibited smoking
inside the building, employer had no general prohibition against
smoking.
Claimant stated that he is addicted to smoking and that he
went outside every night to smoke after eating his lunch. Because
it was raining on November 21, 1997, claimant went to a friend's
car parked on the company parking lot to smoke inside the car.
The parking lot is part of employer's premises. The lot is
enclosed by a fence, and access is controlled by employer's
security guards. The general public has no right to use the lot.
At no time did claimant leave the company parking lot. At the
conclusion of the lunch break, after smoking two cigarettes,
claimant attempted to return to work. Because he was late
returning to work, or because it was raining, claimant ran back to
the main entrance. As he was hurrying up the wet and slippery
concrete steps on the way to his place of work, claimant slipped
and fell, injuring his knee.
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Employer places no restrictions on employees regarding where
they go or what they do during lunch breaks. Employees are
allowed to perform personal errands, and they are not prohibited
from going out into the parking lot during breaks. Employer does
not pay employees for the time spent on the lunch break.
The deputy commissioner held that claimant's injury arose out
of and in the course of his employment and awarded wage loss and
medical benefits. The commission agreed and, while finding that
claimant's need to smoke fell within the personal comfort
doctrine, the commission also specifically found that claimant's
habit was satisfied "in a manner and at a place reasonably
expected by his employer, without undertaking any unreasonable or
unnecessary risk or danger." (Emphasis added.)
II.
The personal comfort doctrine, as applied to workers'
compensation claims, in theory has general acceptance among the
authorities.
Employees who, within the time and space
limits of their employment, engage in acts
which minister to personal comfort do not
thereby leave the course of employment,
unless the extent of the departure is so
great that an intent to abandon the job
temporarily may be inferred, or unless, in
some jurisdictions, the method chosen is so
unusual and unreasonable that the conduct
cannot be considered an incident of the
employment.
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2 Larson, The Law of Workmen's Compensation ch. 21, p. 21-1
(1999). 1 The Virginia Supreme Court has approved the "personal
comfort and convenience" doctrine:
It is uniformly held that "[a]n injury
sustained by an employee while engaged in
the performance of an act essential to his
personal comfort and convenience, but
ultimately for the benefit of the employer,
is compensable as 'arising out of' and 'in
the course of' the employment."
Bradshaw v. Aronovitch, 170 Va. 329, 336, 196 S.E. 684, 686
(1938) (citation omitted). 2
We neither approve nor disapprove of the commission's finding
that smoking is included in the personal comfort doctrine.
Because we agree with that part of the commission's finding that
claimant's injury arose out of and in the course of his
employment, we need not decide the issue.
1
Professor Larson includes "smoking" as an incidental act of
employment, along with resting, washing, seeking fresh air,
coolness and warmth. See Larson, supra at § 21.04.
2
In Bradshaw, Justice Eggleston (later Chief Justice
Eggleston) cited, with apparent approval, a case that included
tobacco use as acts of comfort and convenience: M'Lauchlan v.
Anderson, 48 Scot. L.R. 349, 4 B.W.C.C. 376 (1911) (a Scottish
workers' compensation case where an employee was injured while
attempting to retrieve his smoking pipe)). See Bradshaw, 170 Va.
at 337, 196 S.E. at 687. See also Jones v. Colonial Williamsburg
Foundation, 8 Va. App. 432, 382 S.E.2d 300 (1989), aff'd on reh'g
en banc, 10 Va. App. 521, 392 S.E.2d 848 (1990) (although not a
case involving smoking, listing smoking among other personal
conveniences); Whiting-Mead Commercial Co. v. Industrial Accident
Comm'n, 173 P. 1105, 1106 (1918) (describing use of tobacco as a
"solace" in approving award where claimant injured while lighting
cigarette).
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III.
In Jones v. Colonial Williamsburg Foundation, 10 Va. App.
521, 392 S.E.2d 848 (1990)(en banc), we affirmed the principle
that once an employee is on the employer's premises with the
intent to begin his or her services for the employer, injuries
occurring thereon may be compensable. See id. at 523-24, 392
S.E.2d at 850.
"[E]mployment includes not only the actual
doing of the work, but a reasonable margin
of time and space necessary to be used in
passing to and from the place where the work
is to be done. If the employee be injured
while passing, with the express or implied
consent of the employer, to or from his work
by a way over the employer's premises, or
over those of another in such proximity and
relation as to be in practical effect a part
of the employer's premises, the injury is
one arising out of and in the course of the
employment as much as though it had happened
while the employee was engaged in his work
at the place of its performance. In other
words, the employment may begin in point of
time before the work is entered upon and in
point of space before the place where the
work is to be done is reached."
Brown v. Reed, 209 Va. 562, 565, 165 S.E.2d 394, 397 (1969)
(quoting Bountiful Brick Co. v. Giles, 276 U.S. 154, 158
(1928)). See 1 Larson, The Law of Workmen's Compensation
§ 13.01. This principle applies equally to injuries sustained
by an employee on the employer's premises when returning to work
from a designated meal break. See Prince v. Pan American World
Airways, 6 Va. App. 268, 272, 368 S.E.2d 96, 97-98 (1988)
(finding a compensable injury where the claimant was injured
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when she slipped on the walkway leading to the building where
she worked as she was returning to work from her lunch break).
During his entire lunch period, claimant remained on
employer's premises and was injured on those premises as he
attempted to return to perform defined services for employer.
There is no evidence in this record from which we could conclude
that employer disapproved of claimant using his free time to
smoke while remaining on employer's premises, so long as it did
not occur within the building where claimant performed his
services for employer. Virginia has not declared smoking to be
illegal, and claimant was not injured while committing a
dangerous or unreasonable act.
For employer to prevail in this appeal, it had to prove
that claimant's actions were so unreasonable and dangerous that
it could reasonably be inferred that claimant intended to
abandon his job when he elected to smoke inside a car parked on
employer's private parking lot. See Wyle v. Professional Servs.
Indus., Inc., 12 Va. App. 684, 688, 406 S.E.2d 410, 412 (1991)
(holding that an employer has the burden of proving an
affirmative defense). See, e.g., American Safety Razor Co. v.
Hunter, 2 Va. App. 258, 262, 343 S.E.2d 461, 463 (1986) ("An
employee may abandon his employment by reaching an advanced
state of intoxication which renders the employee incapable of
engaging in his duties."). Employer did not meet this burden.
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Employer concedes that if claimant had gone to his car only
to eat lunch, he would be entitled to the benefits awarded by
the commission. Thus, employer would necessarily urge us to
hold that if two employees at the same time went to the same
place, and one ate lunch while the other smoked, and then, upon
their respective returns to the actual work place, each fell on
the same slippery steps, the diner would recover for his injury
while the smoker would be barred. We rejected a similar analogy
in Jones, and we respectfully decline to make such a distinction
here.
For the reasons stated, we affirm that portion of the
commission's opinion holding that claimant's injury arose out of
and in the course of his employment and entitling him to the
award made.
Affirmed.
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