                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, McCullough and Senior Judge Clements
UNPUBLISHED


              Argued at Alexandria, Virginia


              TRACY LANE
                                                                             MEMORANDUM OPINION * BY
              v.      Record No. 2073-12-4                                 JUDGE STEPHEN R. McCULLOUGH
                                                                                   APRIL 23, 2013
              EMERGENCY VETERINARY CLINIC AND
               SELECTIVE WAY INSURANCE COMPANY


                             FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                                Alaina M. Dartt (Ashcraft & Gerel, LLP, on brief), for appellant.

                                Wirt P. Marks, IV (Robert Harrington & Associates, on brief), for
                                appellees.


                      Tracy Lane appeals from a decision of the Workers’ Compensation Commission concluding

              that injuries she sustained when she slipped and fell in the parking lot of her employer, after her

              shift was over, did not occur in the course of her employment. We affirm the decision of the

              commission.

                                                         BACKGROUND

                      Appellant worked as an overnight receptionist in the emergency department at a veterinary

              clinic. The emergency department never closes, and employees are expected to report to work

              irrespective of weather conditions. December 27, 2009, was a cold day. Snow had melted and then

              refrozen, leaving icy patches in the parking lot. At the end of her shift, around 4:30 a.m., appellant

              clocked out, “said [her] goodbyes,” and walked outside. App. at 8, 11, 32. She chose the most

              direct route to her car and exited from the back door of the clinic. Appellant walked onto a

              walkway that is located above the underground parking. The walkway leads to the parking lot

                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
where her car was parked. As she was walking on the parking lot, she slipped on some black ice

and fell, injuring her right leg.

          The veterinary clinic is the only occupant of the building. The clinic does not assign parking

spaces to employees. In addition, the clinic does not have any policy with regard to where

overnight employees must park. Customers for a nearby grocery store use this parking lot, as do

patients for a nearby building housing a cardiology practice. A more distant parking lot surrounding

the cardiology practice is also available for employees of the veterinary clinic and members of the

public.

          Employees of the veterinary clinic are free to park in the parking lot, a parking garage or

on the street. On the day in question, the underground parking garage was inaccessible because

the access ramp was covered by a sheet of ice. The building occupied by the clinic has three

doors that lead to the outside: one in the front, one in the back, and one in the parking garage.

Three doors from the veterinary clinic provide access to the parking lot. The veterinary clinic

took care of keeping the surrounding sidewalks clear, but it was not responsible for the parking

lot or the nearby streets.

          Appellant submitted a claim for benefits for her injuries. After a deputy commissioner

denied her claim, appellant sought review by the commission. The commission likewise denied

benefits, with Commissioner Marshall filing a dissenting opinion. This appeal followed.

                                              ANALYSIS

          “On appeal, ‘we view the evidence in the light most favorable to the prevailing party’

before the commission.” Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72, 577 S.E.2d 538, 539

(2003) (citation omitted). The “Act has always required the claimant to carry the burden of

proving, by a preponderance of the evidence, (1) an ‘injury by accident’ or occupational disease,

(2) arising out of, and (3) in the course of, the employment.” Morris v. Morris, 238 Va. 578,


                                                  -2-
584, 385 S.E.2d 858, 862 (1989) (citations omitted). “An accident occurs during the course of

the employment if it takes place within the period of employment, at a place where the employee

may reasonably be expected to be, and while the employee is reasonably fulfilling the duties of

the employment or is doing something reasonably incidental to it.” Briley v. Farm Fresh, Inc.,

240 Va. 194, 197, 396 S.E.2d 835, 837 (1990). This Court reviews de novo the question of

whether a work-related injury arose out of or in the course of a claimant’s employment.

Blaustein v. Mitre Corp., 36 Va. App. 344, 348, 550 S.E.2d 336, 338 (2001).

       A number of principles guide our resolution of this case. First, as a general proposition,

“an employee going to and from work is not engaged in any service growing out of and

incidental to his employment unless one of [several] exceptions applies.” GATX Tank Erection

Co. v. Gnewuch, 221 Va. 600, 603, 272 S.E.2d 200, 203 (1980). One of those exceptions occurs

“‘[w]here 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.’” Id. (quoting Kent v. Virginia-Carolina

Chemical Co., 143 Va. 62, 66, 129 S.E. 330, 331-32 (1925)). Another exception is “[w]here 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.” Id. at 603-04, 272 S.E.2d at 203. A

third exception involves a situation “[w]here the employee on his way to or from work is still

charged with some duty or task in connection with his employment.” Id. at 604, 272 S.E.2d at

203. None of these exceptions apply here.

       In some situations, although an accident may occur in a location that is outside of the

employer’s actual premises, the injuries resulting from the accident may be compensable if the

location of the accident is considered an extension of the claimant’s premises. This Court noted

in Prince v. Pan American World Airways, 6 Va. App. 268, 368 S.E.2d 96 (1988), that

               [E]mployment includes not only the actual performance of the
               work, but also “a reasonable margin of time and space necessary to
                                               -3-
               be used in passing to and from the place where the work is to be
               done.” . . . [I]f an employee sustains an injury while passing, with
               the express or implied consent of the employer, to or from his or
               her 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 as causally related to
               the employment as if it had been sustained while the employee was
               engaged in work at the place of its performance.”

Id. at 271-72, 368 S.E.2d at 97 (quoting Barnes v. Stokes, 233 Va. 249, 252, 355 S.E.2d 330, 331

(1987)).

       In Prince, the employee was injured when she slipped on an icy walkway located

approximately five feet from an entrance to the office building leased by her employer. Id. at

270, 368 S.E.2d at 96-97. This Court held that the employee’s injuries were compensable under

the Act because the walkway was situated “‘in such proximity and relation as to be in practical

effect a part of the employer’s premises.’” Id. at 274, 368 S.E.2d at 98 (quoting Barnes, 233 Va.

at 252, 355 S.E.2d at 331). See also Wetzel’s Painting & Wallpapering v. Price, 19 Va. App.

158, 449 S.E.2d 500 (1994) (injuries compensable under the Act where the employee fell on an

icy concrete apron connecting a public street to a gravel driveway outside the jobsite because the

claimant was required to traverse the concrete apron leading from the public street into the

driveway in order to enter the house to paint).

       With regard to parking lots, the Supreme Court of Virginia has recognized that “[m]erely

being in a parking lot utilized by employees is not enough to impose coverage of the Virginia

Workers’ Compensation Act.” Painter v. Simmons, 238 Va. 196, 198, 380 S.E.2d 663, 664

(1989). This Court also has addressed situations involving injuries which, as here, occurred in a

parking lot. See Cleveland v. Food Lion, LLC, 43 Va. App. 514, 520, 600 S.E.2d 138, 141

(2004) (holding that the parking lot was not part of the employer’s extended premises because

the employer controlled neither the use of the parking lot nor where its employees parked);

Hunton & Williams v. Gilmer, 20 Va. App. 603, 607-08, 460 S.E.2d 235, 237 (1995)
                                                  -4-
(employee’s injury was not compensable because she was allowed, but not required, to park in a

parking garage across the street from her employer, and there was no evidence that she was

injured in an area of the parking lot reserved for employees only). See also Stone v. Keister’s

Mkt. & Grill, 34 Va. App. 174, 182, 538 S.E.2d 364, 368 (2000) (injury sustained while crossing

the street to reach the parking lot was not compensable because the parking lot was neither

owned nor maintained by the employer, the claimant was not required to park there, the

employer did not pay for the employee’s parking, did not designate parking spaces for

employees, and the lot was not used exclusively by employees; the lot was neither owned nor

maintained by employer and its use was not an incident of employment). But see Barnes v.

Stokes, 233 Va. 249, 252-53, 355 S.E.2d 330, 332 (1987) (injury was compensable under the Act

because it “occurred in the area [of the parking lot] specifically allocated to the employer and at

the place where the employees were required to park their vehicles”).

       We conclude that the factual scenario here is controlled by our decisions in Cleveland

and Gilmer. The injury occurred in a parking lot. The employee was free to park where she

pleased, whether in this parking lot, a different nearby parking lot, or on the street. She did not

have a reserved parking space. Members of the public used this parking lot. The parking lot did

not constitute “‘in practical effect a part of the employer’s premises.’” Prince, 6 Va. App. at 272,

368 S.E.2d at 98. The employer did not exercise any “control or authority” over where appellant

parked. Gilmer, 20 Va. App. at 608, 460 S.E.2d at 237. Therefore, the injury she sustained did

not occur in the course of her employment.1




       1
          Appellant further contends that the conditions which caused her accident are a risk of
her employment. The commission did not address this claim. Rule 5A:18 bars our consideration
of that assignment of error because appellant did not provide the commission with the
opportunity to correct any perceived error. See Williams v. Gloucester Sheriff’s Dep’t, 266 Va.
409, 411, 587 S.E.2d 546, 548 (2003).
                                                -5-
                                CONCLUSION

The decision of the commission is affirmed.

                                              Affirmed.




                                      -6-
