                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia

GORDON RAY TRICE (DECEASED),
 TERESA TRICE,
 BENJAMIN CODY TRICE (A MINOR) AND
 CHRISTOPHER GAIGE TRICE (A MINOR)
                                          MEMORANDUM OPINION* BY
v.   Record No. 2230-01-2               JUDGE JAMES W. BENTON, JR.
                                              MARCH 26, 2002
JAMES A. THOMAS t/a JAMES A. THOMAS
 CO. 1 AND UNINSURED EMPLOYER'S FUND


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Leila H. Kilgore (Benjamin M. Smith, Jr.;
           Kilgore & Smith, on brief), for appellants.

           Wesley G. Marshall for appellee James A.
           Thomas, t/a James A. Thomas Co.

           No brief or argument for appellee Uninsured
           Employer's Fund.

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       This proceeding began as a claim by Gordon Ray Trice
against his employer "James A. Thomas Co." The employer's first
report of accident designates the employer as "James Thomas
d/b/a James A. Thomas Co." The commission's file denotes the
employer as "James A. Thomas T/A James A. Thomas Company." At
the evidentiary hearing, Thomas testified, however, that the
business was incorporated "six or seven years ago." The deputy
commissioner then remarked "we've got the wrong style of the
case if that's the case" and inquired of Thomas's attorney about
the status of the business entity. Thomas's attorney responded,
"We have it, Deputy Commissioner, as James A. Thomas Co., Inc.,"
and agreed to amend the style of the case. Throughout the
ensuing proceedings, however, and in this Court, the parties
have continued to designate the employer "James A. Thomas t/a
James A. Thomas Co." Because the record does not indicate that
the commission changed the employer's designation, we will refer
to the entity as "employer."
     The sole issue raised by this appeal is whether the

Workers' Compensation Commission erred in ruling that Gordon Ray

Trice was not in the course of his employment when he was

involved in a fatal accident while driving his employer's truck.

                                I.

     The record shows that Trice worked for the employer as a

carpenter.   On the early morning of May 26, 2000, Trice drove

from his home in Spotsylvania County to the home of James A.

Thomas, where he left his vehicle and obtained a truck

registered to his employer.   Trice drove the truck to the City

of Charlottesville where he performed work for the employer.

That afternoon, while driving from Charlottesville to the

employer's shop in Spotsylvania, Trice was involved in an

accident.    Trice died three days later.

     At the evidentiary hearing, Trice's wife testified that

Trice generally drove himself to work.      She also testified that

Trice had worked in Charlottesville on another occasion within

the two weeks prior to the accident and that her husband had not

driven their vehicle.   She did not know who drove on that day.

She testified that "If they were going to like Charlottesville,

I know that they would meet and they would all drive together

rather than ride their own separate vehicles."     She further

testified as follows:




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            There was a time when they all rode
            together. Mr. Thomas had a van then and I
            know he used to meet and ride with him, but
            that hasn't been for quite a few years, so
            just recently when he was working for him,
            I'm assuming he drove himself.

     Larry Bishop worked nine months, "off and on," for the

employer as a carpenter.   In May 2000, he was working for the

employer in Fairfax County.   He testified that during his

employment he worked at "remote job sites, places other than

where Mr. Thomas lived or had his business."   On those

occasions, he drove himself to work or "rode with somebody

else."   The employer did not pay for his travel time or

expenses.

     Chester Didion, who had worked three years for the employer

as a carpenter, testified that he worked with Trice the day of

Trice's accident and that, two weeks before the accident, he had

also worked with Trice in Charlottesville.   On that previous

occasion, Didion had driven the employer's truck to

Charlottesville.   Didion testified that when they worked at a

job site away from the employer's office, "[e]very once and

awhile [the employer would] offer to let us use his [vehicle] so

we didn't have to drive ours."    He indicated that he used the

employer's truck only to get to job sites that were "a hundred

and some miles one way."   According to Didion, however, if they

"worked in [Washington] D.C. or Alexandria, or [locally, the

employees] . . . used [their] own vehicles."

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        Didion further testified that the employer's "business was

basically off and on" and that he had driven the employer's

truck only two or three times.    In response, however, to a

question about the frequency of use of employer's vehicle,

Didion testified that it was "probably about fifty/fifty."

Didion also testified that the employer did not reimburse any

employees for travel time or mileage.

        Thomas testified that he is the only officer of the

corporation and that he hired carpenters to do specific jobs for

a specified period.    He testified that the business was

sporadic, averaging jobs two or three months a year.    When asked

how his employees "usually" got to remote job sites, Thomas

testified:    "Most of them drove.   If it was convenient we met

and rode together.    It depends on if they wanted to get out of

bed."    He also testified that he did not pay the employees for

travel time or reimburse for travel expenses and that Trice was

not being paid for his travel time.    He further testified that

Trice had no duties to perform at the employer's shop after

leaving Charlottesville.

        The deputy commissioner found that "[t]he evidence suggests

that the . . . employer occasionally accommodated its employees

by allowing them to travel to a remote work site in a company

vehicle" and that "no persuasive evidence [proved] . . . that

this was done on a routine basis or that the furnishing of such

transportation was made a part of any employment contract."
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Thus, the deputy commissioner ruled that the evidence failed to

prove an exception to the general rule that an injury sustained

while going from work did not occur in the course of employment.

     On review, the commission's findings included the

following:

                There can be no doubt that [Trice]
             benefited from using the employer's truck -–
             it saved him from the expenses associated
             with using his own car. . . . [W]hile the
             employer occasionally accommodated employees
             by allowing them to drive to a remote work
             site in a company vehicle, this was not done
             on a routine basis nor did it arise out of a
             contract of employment. . . . There is no
             persuasive evidence that the employer
             benefited from allowing employees to take
             the company truck to remote sites.

The commission, therefore, affirmed the deputy commissioner's

ruling that Trice was not in the course of his employment when

the accident occurred, and the commission denied the request for

benefits.

                                 II.

     "As a general rule 'an employee going to or from the place

where [the employee's] work is to be performed is not engaged in

performing any service growing out of and incidental to [the]

employment.'"     Kendrick v. Nationwide Homes, Inc., 4 Va. App.

189, 190, 355 S.E.2d 347, 347 (1987) (citation omitted).      The

Supreme Court has "recognized three exceptions to the general

rule."   LeWhite Constr. Co. v. Dunn, 211 Va. 279, 282, 176

S.E.2d 809, 812 (1970).    The first exception, which Trice

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contends is the dispositive issue in this case, applies "[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.

     In Bristow v. Cross, 210 Va. 718, 173 S.E.2d 815 (1970),

the Supreme Court specifically addressed this exception as

follows:

           [A]n injury sustained by [an employee] who
           is provided with transportation when going
           to and from his [or her] work, is considered
           as arising out of [the] employment when such
           transportation is the result of an express
           or implied agreement between the employer
           and [the] 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.

Id. at 720-21, 173 S.E.2d at 817 (emphasis added).   See also

Dunn, 211 Va. at 282, 176 S.E.2d at 812 (noting that "[m]ost of

the decisions applying the first exception have been based upon

agreements, express or implied, that the employer will furnish

the [employee] free transportation to and from his work").

     Relying on Didion's testimony, the appellants contend that

"[t]here [was] credible evidence to show that it was the custom

of the Employer to furnish transportation to remote job sites."

On appeal, our task is not to determine whether credible

evidence exists which is contrary to the commission's decision,

                                - 6 -
but rather to determine whether there is credible evidence which

supports the commission's ruling.   C.D.S. Services v. Petrock,

218 Va. 1064, 1070, 243 S.E.2d 236, 240 (1978); Rusty's Welding

Service, Inc. v. Gibson, 29 Va. App. 119, 131, 510 S.E.2d 255,

261 (1999) (en banc).   "According to well established

principles, '[f]actual findings of the commission that are

supported by credible evidence are conclusive and binding upon

this Court on appeal.'"   Boys and Girls Club of Va. v. Marshall,

37 Va. App. 83, 90, 554 S.E.2d 104, 107 (2001) (citation

omitted).   A ruling by the commission, "however, that an injury

arose . . . in the course of employment is a mixed finding of

law and fact and is properly reviewable by this Court."    City of

Richmond v. Braxton, 230 Va. 161, 163-64, 335 S.E.2d 259, 261

(1985).

     The evidence is undisputed that the employees routinely

drove their own vehicles when the employer required them to

perform work in the cities of Alexandria and Washington.

Appellants contend, however, that the employer customarily

furnished transportation when the employees were required to

work "at a remote job site," such as Charlottesville.    Although

appellants note that Didion testified the employer's truck was

used fifty percent of the time when going to "remote" locations,

Thomas testified that most employees drove their own cars to

"remote" locations.   Bishop, who also worked for the employer,

testified that when they worked in "remote" job sites "sometimes
                              - 7 -
[the employees] drove ourselves" and "sometimes [an employee]

rode with somebody else."   Trice's wife also testified that when

Trice worked at remote job sites, he "generally drove himself."

     No testimony established that Thomas and Bishop did not

include Charlottesville when they spoke of "remote" locations.

Trice's wife testified that "[i]f they were going to like

Charlottesville, . . . they would meet and . . . would all drive

together rather than ride in their own separate vehicles."    Her

testimony also does not establish that the employer was

regularly providing transportation to Charlottesville.

Moreover, even if Didion and other employees used the employer's

vehicle fifty percent of the time to go to Charlottesville, the

finder of fact could infer, based on the testimony, that "most"

employees drove themselves to such places.   Indeed, no evidence

proved how Didion got to Charlottesville on the day of Trice's

accident or that he was in the truck during the accident.    Thus,

the record contains credible evidence to support the

commission's factual findings that the employer did not provide

a vehicle to the employees as a custom or regular practice and

that the provision of a vehicle was not either expressly or

impliedly part of any employment contract.

     The Supreme Court has held "that an employee furnished

transportation by his employer, absent express or implied

agreement or custom incidental to the employment contract, is

not covered by the Act unless such transportation is beneficial
                              - 8 -
to the employer."    Dunn, 211 Va. at 283, 176 S.E.2d at 812-13.

In view of the evidence that the employees regularly traveled to

distant locales without their time or expenses being reimbursed,

the commission could reasonably find that the employer received

no benefit as a result of Trice driving its vehicle.     The

commission's finding that "no persuasive evidence [established]

that the employer benefited from allowing [Trice] to take the

company truck to remote sites" supports an inference that "the

free transportation for [Trice] was merely a favor to him which

provided no benefit to his employer."      Id. at 283, 176 S.E.2d at

813.   Indeed, Didion testified that Thomas allowed him to use

the truck on those "special occasions . . . so [Didion] didn't

have to put miles on his vehicle."      We hold that credible

evidence supports the commission's rulings.

       For these reasons, we affirm the commission's decision.

                                                           Affirmed.




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