                     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:

                                - 3 -
          "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


                                - 4 -
           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

. . . ."


                               - 5 -
     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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