                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Beales and Alston
UNPUBLISHED


              Argued at Richmond, Virginia


              JUANITA M. WASHINGTON
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0467-17-2                                   JUDGE RANDOLPH A. BEALES
                                                                                OCTOBER 24, 2017
              HONEYWELL INTERNATIONAL, INC. AND
               XL INSURANCE AMERICA, INC.


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               Suzette L. Hutchens (Hutchens & Hutchens, P.C., on brief), for
                               appellant.

                               Kathryn Spruill Lingle (Midkiff, Muncie & Ross, P.C., on brief), for
                               appellees.


                     Juanita M. Washington (“claimant”) appeals from a decision of the Workers’

              Compensation Commission (“the Commission”) denying her benefits for injuries received while

              crossing a public street that separates her employer’s plant from a parking lot maintained by her

              employer. Appellant contends that the Commission erred (1) “in finding that the public street

              was not a part of the employer’s ‘extended premises’” and (2) “in finding that the exception of

              the ‘coming and going’ rule, where the way used is the sole and exclusive way of ingress and

              egress with no other way, does not apply in this case.” For the reasons that follow, we affirm the

              Commission’s decision.

                                                        I. BACKGROUND

                     Claimant worked as a Chemical-A Operator at Honeywell International, Inc.

              (“Honeywell”). At approximately 7:00 p.m. on November 1, 2014, claimant left Honeywell’s


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
powerhouse building on the North Side of Honeywell’s premises. On the way to the North

Parking Lot, claimant was struck by a motor vehicle as she crossed Industrial Street, a two-way

public street in the City of Hopewell.

        Claimant parked in the North Parking Lot because it was the parking lot closest to the

powerhouse. Honeywell maintained the North Parking Lot, and provided it exclusively for its

employees. However, Honeywell’s employees were not issued decals or assigned spaces to park.

They were only instructed not to park in spaces reserved for visitors.

        Honeywell also maintained several additional lots where claimant was permitted to park.

Although the other parking lots were farther from claimant’s work area, claimant would not have

needed to cross Industrial Street if she parked in one of those lots. While Michael Hanes,

manager for Honeywell’s powerhouse and sulfuric acid plant, testified that most employees who

worked on the North Side of the premises typically parked in the North Parking Lot, he also

testified, however, that they did not need to do so as they had other Honeywell-provided parking

options.

        Industrial Street is a public street in the City of Hopewell. Honeywell played no role in

the maintenance or control of the street. In addition to Honeywell, other companies have

premises along Industrial Street, and their employees also used the street to travel to and from

work.

        In his May 23, 2016 opinion, Deputy Commissioner Roach found that claimant’s injuries

were not compensable because (1) none of the three exceptions of the “coming and going” rule

applied and (2) the public street could not be considered a part of the employer’s extended

premises. Claimant requested review of the deputy commissioner’s decision, and the full

Commission affirmed that decision in a 2-1 holding, with Commissioner Marshall dissenting.

This appeal followed.

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                                          II. ANALYSIS

                                    A. STANDARD OF REVIEW

       A finding by the Commission that an injury arose out of and in the course of employment

is a mixed question of law and fact, which this Court reviews de novo. Blaustein v. Mitre Corp.,

36 Va. App. 344, 348, 550 S.E.2d 336, 338 (2001). “[T]his Court is bound by the commission’s

factual findings so long as they are supported by credible evidence, even if ‘contrary evidence

may be found in the record.’” Va. Emp’t Comm’n v. Hale, 43 Va. App. 379, 385, 598 S.E.2d

327, 330 (2004) (quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d

824, 826 (1991)). The claimant has the burden of proving that his injury arose out of and in the

course of his employment. Wetzel’s Painting & Wallpapering v. Price, 19 Va. App. 158, 160,

449 S.E.2d 500, 501 (1994).

                                     B. EXTENDED PREMISES

       Claimant contends that her injury is compensable because Industrial Street was part of

Honeywell’s “extended premises.”

       Under the “extended premises” doctrine, the law recognizes that “[e]mployment . . .

cannot be rigidly limited by the walls of the specific space that constitute the workplace.” Prince

v. Pan American World Airways, 6 Va. App. 268, 271, 368 S.E.2d 96, 97 (1998).

               [E]mployment includes not only the actual performance of the
               work, but also “a reasonable margin of time and space necessary to
               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)). Thus, for the extended premises doctrine to apply, this Court would have to conclude
                                               -3-
that the public street claimant was crossing at the time of her injury was in practical effect a part

of Honeywell’s premises. However, credible evidence supports the Commission’s finding that

the public street was not part of the employer’s “extended premises.”

       The extended premises doctrine has been primarily utilized in two categories of cases –

cases involving walkways and cases involving parking lots. In the walkway cases, for the area to

be considered the employer’s extended premises, the employer must generally have “some kind

of right of passage, as in the case of common stairs, elevators, lobbies, vestibules, concourses,

hallways, walkways, ramps, footbridges, driveways, or passageways through which the employer

has something equivalent to an easement.” Id. at 273-74, 368 S.E.2d at 98 (quoting 1 A. Larson,

Workmen’s Compensation Law § 15.43 (1985)). See id. at 274, 368 S.E.2d at 98 (holding

employee’s injury from slip on walkway five feet from building where employer’s offices were

located was compensable because “the walkway was a common avenue of passage over the

grounds and an essential means of ingress and egress from the public right-of-way to [the

employer’s] place of business”); see also Painter v. Simmons, 238 Va. 196, 199, 380 S.E.2d 663,

665 (1989) (private road was employer’s extended premises where it was “an acknowledged

route of egress and ingress to and between the employer’s facilities”); Wetzel’s, 19 Va. App. at

161, 449 S.E.2d at 502 (holding concrete apron where claimant was injured was employer’s

extended premises because it was “a common means of passage over the grounds to the house

and an essential means of ingress and egress from the public street to the house where the work

was to be performed”).

       Here, the evidence in the record supports the Commission’s finding that the public road

where claimant was injured was not part of the employer’s premises because Honeywell did not

have a “right of passage” across Industrial Street, nor was Industrial Street an essential means of

ingress and egress for Honeywell’s employees. Honeywell did not require its employees to park

                                                -4-
in the North Parking Lot, and it provided several other parking areas where employees could

park. If claimant had parked in one of the other lots, she would not have needed to cross

Industrial Street.

        Claimant also relies on several parking lot cases to support her contention that the public

street was part of Honeywell’s extended premises. However, claimant’s injury did not occur in

the parking lot, and applying the principles articulated in those cases would not support

claimant’s position. Those cases require the employer to own, maintain, control, or otherwise

exercise responsibility over the location where the accident occurred. Where the parking lot is

not owned or maintained by the employer, an employer creates control over the lot by requiring

or directing employees to park there. Cleveland v. Food Lion, L.L.C. # 0578, 43 Va. App. 514,

520, 600 S.E.2d 138, 141 (2004) (“By specifically designating an area ‘employee parking’ and

requiring its employees to park there, an employer is making that area part of its ‘extended

premises’ through its control of the use of that area by its employees.” (citing Barnes, 233 Va. at

253, 355 S.E.2d at 332)); see Hunton & Williams v. Gilmer, 20 Va. App. 603, 608, 460 S.E.2d

235, 237 (1995) (holding claimant’s injuries not compensable because Hunton & Williams did

not control or have any authority over the area of the parking garage where employee was

allowed to park – but not required to park).

        It is undisputed that Honeywell did not own or maintain the public street where claimant

was injured. In addition, Honeywell did not exercise control over the street by requiring or

directing its employees to cross the street to use the North Parking Lot. Therefore, Honeywell

did not own, maintain, or control the situs of the injury, and it is not part of Honeywell’s

extended premises.

        In concluding that claimant’s injuries were not compensable, the Commission found

Ramey v. Bobbitt, 250 Va. 474, 463 S.E.2d 437 (1995), controlling. We agree. In Ramey, the

                                                -5-
claimant, a Pepsi employee, was killed when he was struck by a vehicle while crossing a public

street adjacent to his employer’s premises. Id. at 476-77, 463 S.E.2d at 439. Claimant’s

employer did not provide parking lots for its employees. Id. at 476, 463 S.E.2d at 439. Instead,

employees generally parked on one of three nearby public streets. Id. On the day of the

accident, claimant had parked his vehicle on one of these streets and was walking to work when

he was struck by the vehicle. Id. at 476-77, 463 S.E.2d at 439.

       In holding that claimant’s injuries were not covered by the Workers’ Compensation Act

(“Act”), the Supreme Court explained that:

               [t]he fact that Ramey was killed on a public street places the
               present case beyond the scope of Barnes[, 233 Va. 249, 355 S.E.2d
               330] and Painter[, 238 Va. 196, 380 S.E.2d 663]. The public street
               was not in such relation to Pepsi’s plant that it was in practical
               effect part of Pepsi’s premises. Nor was it a place where Pepsi
               expected Ramey to be for employment purposes.

Id. at 479, 463 S.E.2d at 440.

       Similarly, here, claimant’s injury occurred on a public street as she crossed to the parking

lot. As in Ramey, there were several places where claimant could have parked. Claimant was

not required to park in the North Parking Lot nor was she required to cross Industrial Street.

Therefore, as in Ramey, claimant was not in a place where she was expected to be for

employment purposes when she was stuck by the motor vehicle. Furthermore, neither this Court

nor the Supreme Court of Virginia has ever held that a public street, separating an

employer-maintained parking lot and an employer’s premises, is part of the employer’s extended

premises. For all of these reasons, we affirm the Commission’s conclusion that Industrial Street

was not part of Honeywell’s extended premises.

                                 C. THE “COMING AND GOING” RULE

       Generally, an employee “going to or from the place where his work is to be performed is

not engaged in performing any service growing out of and incidental to his employment.”
                                               -6-
Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 190, 355 S.E.2d 347, 347 (1987) (quoting

Boyd’s Roofing Co. v. Lewis, 1 Va. App. 93, 94, 335 S.E.2d 281, 282 (1985)). There are three

recognized exceptions to this rule:

               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. Claimant argues that her injury was compensable because her trip

to the parking lot falls within the second exception to the “coming and going” rule.

       As noted supra, Industrial Street was not the “sole and exclusive way of ingress and

egress with no other way,” for claimant to reach her place of work. Claimant was permitted to

park in any of the several parking lots made available by Honeywell. If claimant had parked in

another Honeywell parking lot, she would not have needed to cross Industrial Street. Thus,

claimant’s route was not the sole and exclusive way of ingress and egress, and claimant’s

situation does not fit within the exception.

                                         III. CONCLUSION

       In short, the public street that claimant was crossing when she was struck was not an

extension of the employer’s premises, and claimant did not meet the second exception of the

“coming and going” rule. Consequently, we affirm the decision of the Commission.

                                                                                         Affirmed.




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