Michael Ray Tutor v. City of Norfolk Police Dep't

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Agee
Argued at Chesapeake, Virginia
MICHAEL RAY TUTOR
MEMORANDUM OPINION * BY
v. Record No. 1258-01-1 JUDGE G. STEVEN AGEE
DECEMBER 4, 2001
CITY OF NORFOLK POLICE DEPARTMENT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Karen M. Rye (Kenneth J. Coughlan; Law Office
of Karen M. Rye, on brief), for appellant.
Rebecca McFerren King, Assistant City
Attorney (Norfolk City Attorney's Office, on
brief), for appellee.
Michael R. Tutor (the claimant) appeals from a decision of
the Workers' Compensation Commission denying his claim for
benefits against the City of Norfolk Police Department (the
employer). The claimant contends the commission erred in
finding the injury claimed did not arise out of and in the
course of his employment. Finding no error, we affirm the
commission's decision.
I. BACKGROUND
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, only those facts necessary to a disposition of this
appeal are recited.
On April 21, 1999, the claimant, a Norfolk police officer,
attended a seminar conducted by the employer at his normal place
of work. The seminar began at 1:00 p.m. and lasted until 9:30
p.m., though it was scheduled to end at 10:00 p.m. An hour
dinner break began at 5:00 p.m. with the reconvening of the
seminar scheduled for 6:00 p.m. The seminar schedule clearly
showed eight hours of compensable seminar time and one
uncompensated hour for a dinner break -- a total span of nine
hours.
The employer paid each attendee for working an eight-hour
day. Meals were not provided, and the attendees were not paid
for the hour dinner break.
During the dinner break, the claimant chose to drive his
personal vehicle off the employer's premises to a restaurant for
dinner. At 5:35 p.m., on the return trip to the seminar, the
claimant's vehicle was struck from behind by another car and the
claimant was injured. It is for injuries sustained in this
motor vehicle accident that the claimant sought benefits.
The commission found that the injuries sustained by the
claimant did not arise out of or in the course of his
employment, and benefits under the Workers' Compensation Act
were therefore denied. The claimant now challenges that
determination.
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II. ANALYSIS
A. Standard of Review
On appeal, we view the evidence in the light most favorable
to the prevailing party below, in this case the employer. See
R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390
S.E.2d 788, 788 (1990). Injuries sustained in an accident are
compensable only if the claimant establishes the injuries arose
out of and in the course of the employment. Code § 65.2-101;
see also Mullins v. Westmoreland Coal Co., 10 Va. App. 304, 306,
391 S.E.2d 609, 611 (1990). "Whether an injury arises out of
the employment is a mixed question of law and fact and is
reviewable [de novo] by the appellate court." Plumb Rite
Plumbing Serv. v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305,
305 (1990). However, unless we conclude that the claimant
proved, as a matter of law, that his injury arose out of and in
the course of his employment, the commission's finding is
binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
B. The Applicable Rule and its Exceptions
The claimant was injured as he was driving back to work
after traveling to a restaurant and having dinner. Injuries
sustained by an employee going to or from work are generally not
compensable. Provident Life & Acc. Ins. Co. v. Barnard, 236 Va.
41, 45, 372 S.E.2d 369, 371 (1988). However, there are three
recognized exceptions to this "going and coming" rule: (1) the
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employer provides the means of transportation or pays for the
travel time, (2) the way used is the sole means of ingress and
egress, and (3) the employee is charged with a task while on his
way to or from work. Sentara Leigh Hosp. v. Nichols, 13 Va.
App. 630, 636, 414 S.E.2d 426, 429 (1992) (en banc). The
claimant has the burden of proving an exception applies. Id. at
636, 414 S.E.2d at 430. The commission found that none of the
exceptions applied in this case.
The claimant contends the commission failed to recognize
that the first and third exceptions are applicable to his claim. 1
For the following reasons, we disagree with the claimant's
contentions and affirm the commission's decision.
1. The Transportation Exception
On appeal, the claimant argues the commission failed to
recognize the applicability of the first exception (commonly
called the "transportation exception") to the going and coming
rule. He contends the exception should apply because the
employer, in effect, paid him for the time he spent on his
dinner break on April 21, 1999. He reaches this conclusion
because he was paid for an eight-hour day on April 21, 1999,
even though the seminar ended 30 minutes early after only 7.5
hours of instruction. The claimant's position is directly
1
He does not argue the second exception could apply.
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contrary to the employer's testimony that it is standard policy
not to include meal break time in a seminar attendee's pay.
We disagree with the claimant's conclusion and find his
injury is not covered by the "transportation exception." First,
the employer did not reimburse the claimant for his travel
expenses en route to the seminar or reimburse him for mileage.
Second, the employer did not provide the transportation in which
the claimant traveled. Finally, the claimant was not paid for
his dinner break on this particular day because he was attending
a seminar instead of performing any law enforcement duty.
The claimant was attending a seminar that consisted of two,
four-hour training periods, with a one-hour meal break between
sessions. To participate, the claimant, who asked to attend the
seminar, was required to be available for eight hours of
instruction, and attendance was monitored. For attending and
being available for the full eight hours, the employer deemed
the claimant to have fulfilled an eight-hour day and paid him
accordingly. The fact that the seminar ended 30 minutes early
did not change the requirement that the claimant be available
for the period of time for which he was paid.
If the employer had also paid the claimant for the time in
which he went to dinner, despite its policy against this
practice, the claimant would have been entitled to at least 30
minutes of overtime pay (4 hours of instruction, 1 hour for a
dinner break and another 3.5 hours of instruction totaling 8.5
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hours). The claimant did not receive overtime pay on April 21,
1999. The seminar schedule, the testimony of Lt. Galligan
regarding seminar pay, and the foregoing calculation are
credible evidence supporting the commission's decision that the
transportation exception is not applicable in this case.
2. The Special Errand Rule
In the alternative, the claimant contends the commission
erred in not applying the third exception (the "special errand
rule") to the going and coming rule to his claim. We disagree.
In Harbin v. Jamestown Village Joint Venture, 16 Va. App.
190, 428 S.E.2d 754 (1993), we explained the "special errand
rule."
The special errand rule may be stated as
follows: 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.
Id. at 193-94, 428 S.E.2d at 756 (citation omitted). This
exception allows for a claim for injuries where the injuries
occur when an employee is traveling off of the employer's
premises, "charged with some duty or task in connection with his
or her employment." Blaustein v. Mitre Corp., 36 Va. App. 344,
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355, 550 S.E.2d 336, 341 (2001) (citing Kendrick v. Nationwide
Homes, Inc., 4 Va. App. 189, 191, 355 S.E.2d 347, 348 (1987)).
In the case at bar, the claimant was not on a special
errand for the benefit of the employer while he traveled back to
his usual place of employment to attend the last portion of the
seminar. The claimant conceded that he was assigned no specific
task by his employer during the meal break. Credible evidence
in the record supports the commission's finding that the
claimant was not engaged in an activity that arose out of his
employment at the time of his traffic accident. The claimant
was not tasked with any duty while on his meal break. He was
free to do whatever he wished during the one-hour period when
the automobile accident occurred.
In Harbin, we applied the rule where the employee sustained
injuries while en route to a business meeting held away from the
employer's premises. We held that the injuries were compensable
because the employee's supervisor directed him to attend the
off-premises meeting, putting the employee on a special errand
entitling him to benefits. In the case at bar, unlike the
employee in Harbin, the claimant was not required to be away
from his employer's place of employment while performing a duty
assigned by the employer. The evidence supports the
commission's finding that the claimant was not performing any
task of his employment when he was travelling off the employer's
premises for dinner. Accordingly, the commission did not err in
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finding that the special errand exception did not apply to the
circumstances of this case. Credible evidence supports the
commission's decision, which we affirm.
3. A Public Officer Modification to the Rules
The claimant also contends the commission failed to
recognize that "the traditional rules of 'in the course of'
employment do not apply to him" due to the nature of his
position as a police officer. He cites Graybeal v. Bd. of
Supervisors of Montgomery County, 216 Va. 77, 216 S.E.2d 52(1975), as authority for that position.
We must again disagree with the claimant. Graybeal does
not stand for the proposition that any injury suffered at any
time by an individual serving as a public employee is
compensable under the Workers' Compensation Act. In Graybeal, a
bomb planted on a family car at the home of a Commonwealth's
Attorney exploded and injured him. The Commonwealth's Attorney
had previously prosecuted the bomber who sought revenge for the
successful murder prosecution. The Court held the employee was
in the course of employment because the injury originated from
his employment as a prosecutor. "The course from prosecution to
desire-for-revenge to injury was unbroken." 216 Va. at 80, 216
S.E.2d at 54.
In the matter at bar, the injuries suffered by the claimant
have no direct nexus to his employment. He was injured, while
on a break from work, when his personal car was struck by
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another motorist, an incident any individual is susceptible to
experiencing on our public highways. "'The risk of going to
lunch [or dinner] is not a risk incident to the employment, but
is rather an incident of life generally.'" Dreyfus & Company,
Inc. v. Meade, 142 Va. 567, 572, 129 S.E. 336, 337 (1925)
(citation omitted).
Accordingly, we affirm the decision of the commission.
Affirmed.
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