Shivers v. Navy Exchange, 96-2578

Decision Date18 May 1998
Docket NumberNo. 96-2578,96-2578
Citation144 F.3d 322
PartiesEarnestine SHIVERS, Petitioner, v. NAVY EXCHANGE; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Robert Elliott Walsh, Rutter & Montagna, L.L.P., Norfolk, VA, for Petitioner. Randall Bruce Pennington, Navy Exchange Service Command, Virginia Beach, VA, for Respondent. ON BRIEF: Matthew H. Kraft, Rutter & Montagna, L.L.P., Norfolk, VA, for Petitioner. John J. Short, Navy Exchange Service Command, Virginia Beach, VA, for Respondent.

Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge, and CHAMBERS, United States District Judge for the Southern District of West Virginia, sitting by designation.

Reversed and remanded by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge NIEMEYER and Judge CHAMBERS joined.


WILKINSON, Chief Judge:

Earnestine Shivers appeals from a final order of the Benefits Review Board denying her claim for benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-950. Shivers' claim was found barred by the "coming and going" rule because her injury was deemed to have occurred on the way to work rather than on the premises of her employer, Navy Exchange. Because we find that the parking lot in which Shivers suffered her injury is part of her employer's premises, we reverse the Board's order denying Shivers benefits under LHWCA.


Shivers worked at Navy Exchange, a nonappropriated fund instrumentality. The Exchange is a retail store located in a mall on the Norfolk Naval Base. Shivers worked as a sales clerk in the men's department of the store. On March 5, 1993, she drove to work and parked, as she normally did, in the employee parking lot opposite the store's employee entrance. When Shivers went to step onto a median strip of grass in the parking lot, she slipped and fell. As a result of her injuries, Shivers underwent surgery on her leg and was still under the care of an orthopedic surgeon over one year later. The parties stipulated that Shivers suffers a temporary total disability as a result of her 1993 injury.

Navy Exchange maintains the parking lot for the exclusive use of its employees. The lot contains approximately 100 parking places and is located on the side of the store, about 100 feet from the employee entrance. Two signs posted in the lot read "Employee Parking By Permit Only" and "Employee Parking By Permit Only; Violators Will Be Towed At Owner's Expense." To enforce these parking restrictions, Navy Exchange issues parking decals to its employees. The Exchange also patrols the employee lot and maintains its own towing service to remove cars found in the lot without the required parking decal. Employees are permitted to park in the customer parking lot only if the employee lot is full, and then only in the last two rows.

Navy Exchange does not actually own the property on which its employee lot is located. Although the Department of the Navy owns that property, the Exchange directs its own employees to perform certain work on the lot for the sake of appearance. For example, store employees mow the grass around the building, including on the median strip where Shivers slipped and fell. Additionally, Navy Exchange employees remove trash from the employee lot and operate a street sweeper to clean both the employee and customer lots. Finally, when it snows, store employees are directed to salt the sidewalks that lead to the employee parking lot. The Exchange is not equipped, however, to perform major structural repairs to the lot and therefore relies upon the Navy for such maintenance work.

Shivers filed a claim for benefits under LHWCA in June 1993. After conducting a hearing, the Administrative Law Judge concluded that Shivers was not injured in the course of employment because the employee parking lot was not part of Navy Exchange's premises. The ALJ further held that Shivers' claim did not fall within an exception to the "coming and going" rule. Shivers appealed to the Benefits Review Board. Because her appeal had been pending for over one year as of September 12, 1996, the ALJ's decision was affirmed and is considered to be the final order of the Board. 33 U.S.C. § 921 note. Shivers now appeals that order.


LHWCA represents a congressional judgment that certain employees should be compensated for workplace injuries without regard to fault. An employee may recover benefits under the Act, however, only for accidental injuries "arising out of and in the course of employment." 33 U.S.C. § 902(2). This language, which is contained in most workers' compensation statutes, has been read to exclude coverage for injuries sustained by employees while coming to or going from work. Voehl v. Indemnity Ins. Co., 288 U.S. 162, 169, 53 S.Ct. 380, 382, 77 L.Ed. 676 (1933); Perkins v. Marine Terminals Corp., 673 F.2d 1097, 1102 (9th Cir.1982). Once an employee arrives on her employer's premises, however, the coming and going rule no longer precludes recovery of workers' compensation benefits. "As to employees having fixed hours and place of work, injuries occurring on the premises while they are going to and from work before or after working hours ... are compensable." 1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 15.00 (1997); see Durrah v. Washington Metro. Area Transit Auth., 760 F.2d 322, 324 (D.C.Cir.1985).

The ALJ denied Shivers' claim under LHWCA because he found that Navy Exchange's employee parking lot was not part of its premises. He concluded that, because the Navy owned the property on which the employee lot was located, it could not be...

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