Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Whiting, S.J.


VAUGHAN'S LANDSCAPING & MAINTENANCE,
ET AL.                                    OPINION BY
                                  SENIOR JUSTICE HENRY H. WHITING
v. Record No. 001740                     June 8, 2001

TIMOTHY JASON DODSON


              FROM THE COURT OF APPEALS OF VIRGINIA

     In this workers' compensation case, we consider whether the

worker's injuries arose out of and in the course of his

employment.

     The following evidence was presented by the worker and his

employer at a hearing before a deputy commissioner of the

Virginia Workers' Compensation Commission (the Commission).

Timothy Jason Dodson (Dodson), a manual laborer who was 19 years

old at the time of his injuries, worked for David Vaughan, the

owner of Vaughan's Landscaping & Maintenance (Vaughan).   Dodson,

a passenger in the employer's pickup truck, was injured on

Saturday, June 24, 1995, when the truck, driven by Vaughan,

sideswiped a tree.

     The two men mowed lawns on the morning of the accident.

When they completed the last job between 1:00 and 1:30 p.m.,

Vaughan drove his truck and trailer, loaded with lawn

maintenance equipment, to Bentonville where he purchased beer

and wine.
     While the two men proceeded toward Page County where both

lived, they began drinking Vaughan's beer and wine.    As they

were driving, they noticed friends pitching horseshoes in a yard

beside the road.   The two men stopped and spent some time there

pitching horseshoes and continuing to drink alcohol.   While

there, one of the owners of the property talked to Vaughan about

doing some yard work in the future.

     Vaughan testified that when they left this location, Dodson

was "[p]retty drunk."    Dodson admitted that he was drunk and

that probably drinking a little more alcohol would have caused

him to "pass out."   While Vaughan was driving toward Page County

on what he described as a one-lane gravel road, he "took [his]

eyes off the road" to glance back at a bottle that Dodson had

thrown out the window.   According to Vaughan, this "caused me to

get off the road . . . [j]ust enough that the truck skinned down

the side of the tree."   When the truck "skinned" the tree,

Dodson's arm was injured.

     Dodson filed a claim for workers' compensation benefits

with the Commission, which Vaughan and his insurance company

contested.   After a hearing, the deputy commissioner, citing

American Safety Razor Co. v. Hunter, 2 Va. App. 258, 261, 343

S.E.2d 461, 463 (1986), denied the claim on the ground that

Dodson had abandoned his employment by reaching an advanced




                                  2
stage of intoxication that rendered him incapable of engaging in

his work-related duties.

     On Dodson's appeal, the Commission reversed the deputy

commissioner's decision and awarded Dodson benefits.    The

Commission ruled that the principle set forth in American Safety

Razor Co. was inapplicable because Vaughan had obviously

encouraged and condoned Dodson's conduct by illegally providing

the alcohol and facilitating its consumption by the then under-

age claimant.   For those reasons, the Commission concluded that

Vaughan "will not now be heard to assert the claimant's

intoxication as a defense to his claim for benefits."

     On Vaughan's appeal, a panel of the Court of Appeals

reversed the decision of the Commission because the Court

concluded that Dodson's injury did not occur in the course of

his employment and was therefore not compensable.   The Court

reasoned that Dodson's self-induced, severe intoxication was

unrelated to any work-related duty or function, and that it

rendered him incapable of performing his job duties of operating

yard maintenance equipment and other strenuous activities.

Vaughan's Landscaping & Maintenance v. Dodson, 30 Va. App. 135,

141, 515 S.E.2d 800, 802 (1999).

     Upon a rehearing en banc, the decision of the Commission

was affirmed without an opinion by an evenly divided Court, the

panel's opinion was withdrawn, and its mandate was vacated.


                                   3
Dodson v. Vaughan's Landscaping & Maintenance, 32 Va. App. 667,

667-68, 529 S.E.2d 854, 854-55 (2000).    Because the case has

significant precedential value, see Code § 17.1-410, we granted

an appeal to Vaughan.

     Vaughan contends that Dodson's severe level of intoxication

rendered him incapable of performing his duties and, therefore,

removed him from the course of his employment under the

principle articulated in American Safety Razor, 2 Va. App. at

261, 343 S.E.2d at 463.   The evidence indicates, however, that

Vaughan did not expect Dodson to work any more that day after

finishing the job and starting back to Page County.    Under these

circumstances, we do not think the principle articulated in

American Safety Razor is applicable.     Hence, we reject this

contention.

     Here, the evidence was that Dodson's injuries were incurred

while Vaughan was taking him to Luray, which is in Page County,

at Dodson's request.    The evidence also showed that when Dodson

finished his work, Vaughan usually returned Dodson to Dodson's

home after work.   However, Vaughan sometimes took Dodson to

Luray when Dodson requested, as he had on the day of his

injuries.   If an employer furnishes an employee transportation

to and from work, injuries that occur during such transportation

are compensable as arising out of and in the course of




                                  4
employment.    Provident Life and Accident Insurance Company v.

Barnard, 236 Va. 41, 45, 372 S.E.2d 369, 371 (1988).

     Vaughan recognizes that this accident would normally be

considered to have occurred in the course of Dodson's

employment.    Nevertheless, Vaughan argues that the accident did

not arise out of and in the course of Dodson's employment for

two reasons.

     First, Vaughan contends that when he was driving Dodson to

Luray, he was not doing so as Dodson's employer but as his

friend after "they had opted to get drunk after work, an

activity that was in no way connected to the employment."    We

disagree.

     The Commission made a factual finding that Vaughan

discussed future business while they were pitching horseshoes

with his friends and that Dodson was under Vaughan's control

during the trip to Luray in Vaughan's truck.   The Commission's

conclusion that the accident occurred in the course and scope of

Dodson's employment implicitly incorporated a factual finding

that Vaughan was acting as Dodson's employer when he resumed the

trip to Luray.   We do not review the Commission's factual

findings unless they are unsupported by credible evidence.     See

Virginia Electric and Power Co. v. Kremposky, 227 Va. 265, 269,

315 S.E.2d 231, 233 (1984).   In this case, we cannot say that

this evidence was not credible or was insufficient to support


                                  5
the Commission's implied finding that Vaughan was taking Dodson

to Luray in his capacity as Dodson's employer.

     Vaughan's second reason why the accident did not occur in

the course of employment is that the period of drinking and

pitching horseshoes was such a deviation "from the business

purpose of the ride home, that it effectively broke the nexus to

the employment before the return trip home was resumed."      In

support of this argument, Vaughan cites cases stating that if an

employee so materially deviates from the employment–related

purposes of his trip as to constitute a "frolic of his own," any

accident occurring at that time is not considered to have

occurred in the course of employment.       See, e.g., Taylor v.

Robertson Chevrolet Co., 177 Va. 289, 295, 13 S.E.2d 326, 329

(1941).

     Here, however, we are not considering an employee's

deviation, but whether the employer's resumption of the trip to

transport Dodson to the location of his choice was a trip in the

course of his employment.   In taking Dodson to Luray, Vaughan

was fulfilling his agreement as Dodson's employer to provide

transportation to and from work.       Accordingly, we hold that

Dodson's injuries arose out of and in the course of his

employment and that the Commission's award of benefits should be

upheld.

     Therefore, the judgment of the Court of Appeals will be


                                   6
    Affirmed.




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