                      COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Senior Judge Baker
Argued at Richmond, Virginia


CADMUS MAGAZINES
 and ROYAL INSURANCE COMPANY OF AMERICA
                                                 OPINION BY
v.   Record No. 2182-98-2                   JUDGE JOSEPH E. BAKER
                                                JUNE 29, 1999
ANTHONY R. WILLIAMS


        FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

          John M. Oakey, Jr. (McGuire, Woods, Battle &
          Boothe, LLP, on brief), for appellants.

          Louis D. Snesil (Louis D. Snesil, P.C., on
          brief), for appellee.


     Cadmus Magazines and Royal Insurance Company of America

(jointly referred to herein as employer) appeal from an award of

benefits by the Workers' Compensation Commission (commission) to

Anthony R. Williams (claimant) for injuries incurred on employer's

premises as claimant was returning to work at the end of his lunch

break after having smoked cigarettes during that break while

seated in a car parked on employer's parking lot.    Although the

parties debate whether the personal comfort doctrine required such

award, we view the pivotal issue to be simply whether the

commission correctly ruled that claimant was injured in the course

of his employment.    There are no significant disagreements with

the facts contained in the commission's opinion.     For the

following reasons, we affirm the commission's award.
                                 I.

     Claimant worked for employer as an assistant mailing machine

operator.   On November 21, 1997, he was working the 7:00 p.m. to

7:00 a.m. shift.   When the machine operator called for a break,

claimant ate lunch in employer's cafeteria, located within

employer's building.   The lunch break lasted thirty minutes, and

claimant ate quickly in order to have time to smoke cigarettes

before returning to work.   Although employer prohibited smoking

inside the building, employer had no general prohibition against

smoking.

     Claimant stated that he is addicted to smoking and that he

went outside every night to smoke after eating his lunch.     Because

it was raining on November 21, 1997, claimant went to a friend's

car parked on the company parking lot to smoke inside the car.

The parking lot is part of employer's premises.   The lot is

enclosed by a fence, and access is controlled by employer's

security guards.   The general public has no right to use the lot.

At no time did claimant leave the company parking lot.   At the

conclusion of the lunch break, after smoking two cigarettes,

claimant attempted to return to work.   Because he was late

returning to work, or because it was raining, claimant ran back to

the main entrance.   As he was hurrying up the wet and slippery

concrete steps on the way to his place of work, claimant slipped

and fell, injuring his knee.



                               - 2 -
     Employer places no restrictions on employees regarding where

they go or what they do during lunch breaks.   Employees are

allowed to perform personal errands, and they are not prohibited

from going out into the parking lot during breaks.   Employer does

not pay employees for the time spent on the lunch break.

     The deputy commissioner held that claimant's injury arose out

of and in the course of his employment and awarded wage loss and

medical benefits.   The commission agreed and, while finding that

claimant's need to smoke fell within the personal comfort

doctrine, the commission also specifically found that claimant's

habit was satisfied "in a manner and at a place reasonably

expected by his employer, without undertaking any unreasonable or

unnecessary risk or danger."   (Emphasis added.)

                                II.

     The personal comfort doctrine, as applied to workers'

compensation claims, in theory has general acceptance among the

authorities.

          Employees who, within the time and space
          limits of their employment, engage in acts
          which minister to personal comfort do not
          thereby leave the course of employment,
          unless the extent of the departure is so
          great that an intent to abandon the job
          temporarily may be inferred, or unless, in
          some jurisdictions, the method chosen is so
          unusual and unreasonable that the conduct
          cannot be considered an incident of the
          employment.




                               - 3 -
2 Larson, The Law of Workmen's Compensation ch. 21, p. 21-1

(1999). 1   The Virginia Supreme Court has approved the "personal

comfort and convenience" doctrine:

            It is uniformly held that "[a]n injury
            sustained by an employee while engaged in
            the performance of an act essential to his
            personal comfort and convenience, but
            ultimately for the benefit of the employer,
            is compensable as 'arising out of' and 'in
            the course of' the employment."

Bradshaw v. Aronovitch, 170 Va. 329, 336, 196 S.E. 684, 686

(1938) (citation omitted). 2

     We neither approve nor disapprove of the commission's finding

that smoking is included in the personal comfort doctrine.

Because we agree with that part of the commission's finding that

claimant's injury arose out of and in the course of his

employment, we need not decide the issue.




     1
       Professor Larson includes "smoking" as an incidental act of
employment, along with resting, washing, seeking fresh air,
coolness and warmth. See Larson, supra at § 21.04.
     2
       In Bradshaw, Justice Eggleston (later Chief Justice
Eggleston) cited, with apparent approval, a case that included
tobacco use as acts of comfort and convenience: M'Lauchlan v.
Anderson, 48 Scot. L.R. 349, 4 B.W.C.C. 376 (1911) (a Scottish
workers' compensation case where an employee was injured while
attempting to retrieve his smoking pipe)). See Bradshaw, 170 Va.
at 337, 196 S.E. at 687. See also Jones v. Colonial Williamsburg
Foundation, 8 Va. App. 432, 382 S.E.2d 300 (1989), aff'd on reh'g
en banc, 10 Va. App. 521, 392 S.E.2d 848 (1990) (although not a
case involving smoking, listing smoking among other personal
conveniences); Whiting-Mead Commercial Co. v. Industrial Accident
Comm'n, 173 P. 1105, 1106 (1918) (describing use of tobacco as a
"solace" in approving award where claimant injured while lighting
cigarette).


                                - 4 -
                                III.

     In Jones v. Colonial Williamsburg Foundation, 10 Va. App.

521, 392 S.E.2d 848 (1990)(en banc), we affirmed the principle

that once an employee is on the employer's premises with the

intent to begin his or her services for the employer, injuries

occurring thereon may be compensable.    See id. at 523-24, 392

S.E.2d at 850.

           "[E]mployment includes not only the actual
           doing of the work, but 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. If the employee be injured
           while passing, with the express or implied
           consent of the employer, to or from his 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
           one arising out of and in the course of the
           employment as much as though it had happened
           while the employee was engaged in his work
           at the place of its performance. In other
           words, the employment may begin in point of
           time before the work is entered upon and in
           point of space before the place where the
           work is to be done is reached."

Brown v. Reed, 209 Va. 562, 565, 165 S.E.2d 394, 397 (1969)

(quoting Bountiful Brick Co. v. Giles, 276 U.S. 154, 158

(1928)).   See 1 Larson, The Law of Workmen's Compensation

§ 13.01.   This principle applies equally to injuries sustained

by an employee on the employer's premises when returning to work

from a designated meal break.    See Prince v. Pan American World

Airways, 6 Va. App. 268, 272, 368 S.E.2d 96, 97-98 (1988)

(finding a compensable injury where the claimant was injured

                                - 5 -
when she slipped on the walkway leading to the building where

she worked as she was returning to work from her lunch break).

     During his entire lunch period, claimant remained on

employer's premises and was injured on those premises as he

attempted to return to perform defined services for employer.

There is no evidence in this record from which we could conclude

that employer disapproved of claimant using his free time to

smoke while remaining on employer's premises, so long as it did

not occur within the building where claimant performed his

services for employer.   Virginia has not declared smoking to be

illegal, and claimant was not injured while committing a

dangerous or unreasonable act.

     For employer to prevail in this appeal, it had to prove

that claimant's actions were so unreasonable and dangerous that

it could reasonably be inferred that claimant intended to

abandon his job when he elected to smoke inside a car parked on

employer's private parking lot.     See Wyle v. Professional Servs.

Indus., Inc., 12 Va. App. 684, 688, 406 S.E.2d 410, 412 (1991)

(holding that an employer has the burden of proving an

affirmative defense).    See, e.g., American Safety Razor Co. v.

Hunter, 2 Va. App. 258, 262, 343 S.E.2d 461, 463 (1986) ("An

employee may abandon his employment by reaching an advanced

state of intoxication which renders the employee incapable of

engaging in his duties.").   Employer did not meet this burden.



                                 - 6 -
        Employer concedes that if claimant had gone to his car only

to eat lunch, he would be entitled to the benefits awarded by

the commission.    Thus, employer would necessarily urge us to

hold that if two employees at the same time went to the same

place, and one ate lunch while the other smoked, and then, upon

their respective returns to the actual work place, each fell on

the same slippery steps, the diner would recover for his injury

while the smoker would be barred.    We rejected a similar analogy

in Jones, and we respectfully decline to make such a distinction

here.

        For the reasons stated, we affirm that portion of the

commission's opinion holding that claimant's injury arose out of

and in the course of his employment and entitling him to the

award made.

                                                          Affirmed.




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