Blaustein v. Mitre Corp.

• Decision Date: 07 August 2001
• Docket Number: Record No. 2860-00-4.
• Citation: 36 Va. App. 344,550 S.E.2d 336
• Parties: Barbara T. BLAUSTEIN v. MITRE CORPORATION and Travelers Indemnity Company.
• Court: Virginia Court of Appeals

550 S.E.2d 336

36 Va. App. 344

Barbara T. BLAUSTEIN v. MITRE CORPORATION and Travelers Indemnity Company.

Record No. 2860-00-4.

Court of Appeals of Virginia, Alexandria.

August 7, 2001.

William S. Sands, Jr. (Duncan and Hopkins, P.C., on brief), Alexandria, for appellant.

Francis G. Marrin, Fairfax (Law Office of Roger S. Mackey, on brief), for appellees.

Present: FITZPATRICK, C.J., and ANNUNZIATA and AGEE, JJ.

ANNUNZIATA, Judge.

The appellant, Barbara T. Blaustein, appeals the denial of benefits by the Workers' Compensation Commission for an injury she suffered on February 5, 1997, while on her way to work. Blaustein contends the commission erred in finding that her injury did not arise out of her employment under an exception to the "coming and going" rule. For the following reasons, we affirm.

I. BACKGROUND

The Mitre Corporation, a federally funded research and development center, hired Blaustein as a scientist in March 1992. At the time of the accident on February 5, 1997, she resided in Silver Spring, Maryland. From 1992 to 1995, she commuted by car to Mitre's office in Tysons Corner, Virginia.

In 1995, in accordance with an inter-governmental Personnel Assignment Agreement (IPA), she began working at the National Science Foundation (NSF), an agency of the federal government located in Arlington, Virginia. The IPA Agreement for Blaustein originally was to run from November 1995 through November 1996, but was extended for one year through November 1997.

Before the IPA assignment, Blaustein parked her car free of charge at Mitre's facility in Tysons Corner in a parking lot adjacent to the company's building. Parking at NSF was either on the street, if available, or for a fee in a public garage under the NSF building. When Blaustein accepted the assignment at NSF, Mitre agreed to reimburse her for either the cost of garage parking at NSF or the cost of Metro subway transportation.

The manner, mode, and route of travel to NSF were solely within the discretion of Blaustein. In making the daily commute to NSF over the fifteen-month period prior to her accident, Blaustein frequently drove from Silver Spring to Arlington and parked her vehicle in the basement of the NSF building. On the days she did not drive to NSF, she drove to the Wheaton Metro station, parked her car in the Metro parking lot or on the public street, and took the subway to NSF. She was reimbursed for the parking fee at the NSF garage for the days she drove, and for the Metro fare on the days she took the subway. She received neither mileage nor gasoline costs.

After taking the NSF assignment, Blaustein maintained her office at the Mitre building. She only spent one or two days per month at the Mitre facility, but maintained daily contact with her Mitre colleagues both over the telephone and by email. Blaustein typically worked on some Mitre-related tasks while working at NSF, in addition to attending her NSF related responsibilities.

On the morning of February 5, 1997, Blaustein left her home in Silver Spring to travel to work at NSF. She drove approximately one mile to the Wheaton Metro station and parked her car on a residential street. While crossing at a public intersection on her way to the subway station, she was struck by an automobile. She was taken to the hospital where she began treatment for her injuries. The extent of her injuries is not at issue in this case.

Blaustein filed a workers' compensation claim against Mitre Corporation and their workers' compensation carrier, Travelers Indemnity Company, seeking benefits for the injury. An evidentiary hearing was held before a deputy commissioner on September 13, 1999, and he issued an opinion on December 1, 1999. The deputy commissioner found the "special errand" exception to the "coming and going" rule applied and awarded disability and medical benefits to Blaustein.

Mitre and Travelers requested review before the full commission on three issues: (1) whether Blaustein was an employee of Mitre at the time of her accident; (2) whether Blaustein's accident arose out of and in the course of her employment under an exception to the "coming and going" rule; and (3) whether Blaustein was entitled to temporary total disability benefits. In its opinion dated November 15, 2000, the full commission found Blaustein to be an employee of Mitre; however, it ruled the accident did not fall within an exception to the "coming and going" rule and, therefore, denied benefits.

Blaustein appealed to this Court on the sole issue of whether her accident fell within an exception to the "coming and going" rule.

II. ANALYSIS

Whether an injury arises out of and in the course of employment involves a mixed question of law and fact, which we review de novo on appeal. Norfolk Community Hosp. v. Smith, 33 Va.App. 1, 4, 531 S.E.2d 576, 578 (2000).

An employee may recover workers' compensation benefits when the injuries result from an event "arising out of and "in the course of employment. Generally, an injury sustained by an employee while "coming and going" to work does not arise out of or in the course of the claimant's employment and is not compensable. Sentara Leigh Hosp. v. Nichols, 13 Va.App. 630, 636, 414 S.E.2d 426, 429 (1992) (en banc); see also Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 13.01 (2000) ("going to and from work is covered only on the employer's premises)". This general rule, also known as the "premises" rule, has three exceptions: (1) where the means of transportation are provided by the employer or the time consumed by travel is paid for and is included in the employee's wages; (2) where the way used to and from employment is the sole and exclusive means of ingress and egress; and (3) where the employee is engaged in some duty or task in connection with his or her employment, i.e., when the employee is on a special errand. Sentara, 13 Va.App. at 636, 414 S.E.2d at 429.

Blaustein contends the first and third exceptions apply to her accident. We disagree and find that her injury did not arise out of or in the course of her employment.

A. The Transportation Exception

Blaustein contends that because Mitre reimbursed her for her subway fare on the days she took the Metro to NSF, her accident, which occurred while she was traveling from her home to a Metro station on her way to NSF, is compensable under the "transportation" exception to the "coming and going" rule. We disagree and find Blaustein's injury does not fall under the "transportation" exception.¹

The issue raised in this case is one of first impression in Virginia. Earlier cases addressed the right to compensation as a result of an injury sustained by an employee being transported to and from a place of employment in a vehicle furnished or driven by the employer. In Scott v. Willis, 150 Va. 260, 142 S.E. 400 (1928), for example, the employer was required by the employment contract with the employee to provide transportation for the employee to and from his home each day. The employee had exited the employer's truck and began to cross the highway to his home, which was two blocks away. An oncoming car struck the employee as he crossed the road. The employer contended that benefits should not be awarded because the employee had left the truck. The Virginia Supreme Court disagreed and held the accident arose out of and in the course of the claimant's employment based on the employment agreement between the parties. See also Bristow v. Cross, 210 Va. 718, 173 S.E.2d 815 (1970)

(employee injured while being transported in employer's truck); Hann v. Times-Dispatch Pub. Co., 166 Va. 102, 184 S.E. 183 (1936) (same); Boyd's Roofing Co. v. Lewis, 1 Va.App. 93, 335 S.E.2d 281 (1985) (same).

In Provident Life & Accident Ins. Co. v. Barnard, 236 Va. 41, 372 S.E.2d 369 (1988), the Virginia Supreme Court extended compensation to situations where the employer "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. See also Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 482-83, 67 S.Ct. 801, 809-10, 91 L.Ed. 1028 (1947)

("Where there is that obligation [to provide transportation], it becomes irrelevant in this setting whether the employer performs the obligation by supplying its own vehicle, hiring the vehicle of an independent contractor, making arrangements with a common carrier, reimbursing employees for the use of their own vehicles, or reimbursing employees for the costs of transportation by any means they desire to use.").

The principles to be derived from Scott are based primarily on contract principles. In Scott, the "contract of employment provided that [Scott] was to receive free transportation to and from his home ... and the place where he was required to work." Scott, 150 Va. at 263, 142 S.E. at 400. Based on the contract, the Virginia Supreme Court found the right to compensation well established, stating, "in view of the contract of the employer to transport the claimant back to his home, if the injury occurred during the transportation, it arose out of and in the course of his employment, and is, therefore, compensable." Id. at 265, 142 S.E. at 401; see also Cardillo, 330 U.S. 469,

67 S.Ct. 801,

91 L.Ed. 1028 (through a union contract, employer had agreed to pay claimant's full transportation expenses to and from work); Katz v. Katz, 137 Conn. 134, 75 A.2d 57, 58 (1950) (employer agreed to transport claimant home each night); Sihler v. Lincoln-Alliance Bank & Trust Co., 280 N.Y. 173, 19 N.E.2d 1008, 1008 (1939) (employer agreed to ensure that claimant "got home safe" if claimant would agree to stay and work overtime).

In rejecting the employer's contention in Scott that the contract to provide transportation did...