                     COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Agee
Argued at Chesapeake, Virginia


MICHAEL RAY TUTOR
                                              MEMORANDUM OPINION * BY
v.   Record No. 1258-01-1                      JUDGE G. STEVEN AGEE
                                                  DECEMBER 4, 2001
CITY OF NORFOLK POLICE DEPARTMENT


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             Karen M. Rye (Kenneth J. Coughlan; Law Office
             of Karen M. Rye, on brief), for appellant.

             Rebecca McFerren King, Assistant City
             Attorney (Norfolk City Attorney's Office, on
             brief), for appellee.


     Michael R. Tutor (the claimant) appeals from a decision of

the Workers' Compensation Commission denying his claim for

benefits against the City of Norfolk Police Department (the

employer).     The claimant contends the commission erred in

finding the injury claimed did not arise out of and in the

course of his employment.     Finding no error, we affirm the

commission's decision.

                            I.   BACKGROUND

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, only those facts necessary to a disposition of this

appeal are recited.

       On April 21, 1999, the claimant, a Norfolk police officer,

attended a seminar conducted by the employer at his normal place

of work.   The seminar began at 1:00 p.m. and lasted until 9:30

p.m., though it was scheduled to end at 10:00 p.m.   An hour

dinner break began at 5:00 p.m. with the reconvening of the

seminar scheduled for 6:00 p.m.   The seminar schedule clearly

showed eight hours of compensable seminar time and one

uncompensated hour for a dinner break -- a total span of nine

hours.

       The employer paid each attendee for working an eight-hour

day.   Meals were not provided, and the attendees were not paid

for the hour dinner break.

       During the dinner break, the claimant chose to drive his

personal vehicle off the employer's premises to a restaurant for

dinner.    At 5:35 p.m., on the return trip to the seminar, the

claimant's vehicle was struck from behind by another car and the

claimant was injured.    It is for injuries sustained in this

motor vehicle accident that the claimant sought benefits.

       The commission found that the injuries sustained by the

claimant did not arise out of or in the course of his

employment, and benefits under the Workers' Compensation Act

were therefore denied.   The claimant now challenges that

determination.

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                                II. ANALYSIS

                          A.   Standard of Review

     On appeal, we view the evidence in the light most favorable

to the prevailing party below, in this case the employer.          See

R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390

S.E.2d 788, 788 (1990).        Injuries sustained in an accident are

compensable only if the claimant establishes the injuries arose

out of and in the course of the employment.         Code § 65.2-101;

see also Mullins v. Westmoreland Coal Co., 10 Va. App. 304, 306,

391 S.E.2d 609, 611 (1990).       "Whether an injury arises out of

the employment is a mixed question of law and fact and is

reviewable [de novo] by the appellate court."         Plumb Rite

Plumbing Serv. v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305,

305 (1990).    However, unless we conclude that the claimant

proved, as a matter of law, that his injury arose out of and in

the course of his employment, the commission's finding is

binding and conclusive upon us.        See Tomko v. Michael's

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

              B.    The Applicable Rule and its Exceptions

     The claimant was injured as he was driving back to work

after traveling to a restaurant and having dinner.        Injuries

sustained by an employee going to or from work are generally not

compensable.       Provident Life & Acc. Ins. Co. v. Barnard, 236 Va.

41, 45, 372 S.E.2d 369, 371 (1988).         However, there are three

recognized exceptions to this "going and coming" rule:          (1) the

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employer provides the means of transportation or pays for the

travel time, (2) the way used is the sole means of ingress and

egress, and (3) the employee is charged with a task while on his

way to or from work.       Sentara Leigh Hosp. v. Nichols, 13 Va.

App. 630, 636, 414 S.E.2d 426, 429 (1992) (en banc).       The

claimant has the burden of proving an exception applies.          Id. at

636, 414 S.E.2d at 430.       The commission found that none of the

exceptions applied in this case.

        The claimant contends the commission failed to recognize

that the first and third exceptions are applicable to his claim. 1

For the following reasons, we disagree with the claimant's

contentions and affirm the commission's decision.

                     1.   The Transportation Exception

        On appeal, the claimant argues the commission failed to

recognize the applicability of the first exception (commonly

called the "transportation exception") to the going and coming

rule.       He contends the exception should apply because the

employer, in effect, paid him for the time he spent on his

dinner break on April 21, 1999.       He reaches this conclusion

because he was paid for an eight-hour day on April 21, 1999,

even though the seminar ended 30 minutes early after only 7.5

hours of instruction.       The claimant's position is directly




        1
            He does not argue the second exception could apply.


                                   - 4 -
contrary to the employer's testimony that it is standard policy

not to include meal break time in a seminar attendee's pay.

     We disagree with the claimant's conclusion and find his

injury is not covered by the "transportation exception."    First,

the employer did not reimburse the claimant for his travel

expenses en route to the seminar or reimburse him for mileage.

Second, the employer did not provide the transportation in which

the claimant traveled.   Finally, the claimant was not paid for

his dinner break on this particular day because he was attending

a seminar instead of performing any law enforcement duty.

     The claimant was attending a seminar that consisted of two,

four-hour training periods, with a one-hour meal break between

sessions.   To participate, the claimant, who asked to attend the

seminar, was required to be available for eight hours of

instruction, and attendance was monitored.   For attending and

being available for the full eight hours, the employer deemed

the claimant to have fulfilled an eight-hour day and paid him

accordingly.   The fact that the seminar ended 30 minutes early

did not change the requirement that the claimant be available

for the period of time for which he was paid.

     If the employer had also paid the claimant for the time in

which he went to dinner, despite its policy against this

practice, the claimant would have been entitled to at least 30

minutes of overtime pay (4 hours of instruction, 1 hour for a

dinner break and another 3.5 hours of instruction totaling 8.5

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hours).    The claimant did not receive overtime pay on April 21,

1999.    The seminar schedule, the testimony of Lt. Galligan

regarding seminar pay, and the foregoing calculation are

credible evidence supporting the commission's decision that the

transportation exception is not applicable in this case.

                      2.    The Special Errand Rule

        In the alternative, the claimant contends the commission

erred in not applying the third exception (the "special errand

rule") to the going and coming rule to his claim.       We disagree.

        In Harbin v. Jamestown Village Joint Venture, 16 Va. App.

190, 428 S.E.2d 754 (1993), we explained the "special errand

rule."

             The special errand rule may be stated as
             follows: when an employee, having
             identifiable time and space limits on his
             employment, makes an off-premises journey
             which would normally not be covered under
             the usual going and coming rule, the journey
             may be brought within the course of
             employment by the fact that the trouble and
             time of making the journey, or the special
             inconvenience, hazard, or urgency of making
             it in the particular circumstances, is
             itself sufficiently substantial to be viewed
             as an integral part of the service itself.

Id. at 193-94, 428 S.E.2d at 756 (citation omitted).       This

exception allows for a claim for injuries where the injuries

occur when an employee is traveling off of the employer's

premises, "charged with some duty or task in connection with his

or her employment."        Blaustein v. Mitre Corp., 36 Va. App. 344,



                                    - 6 -
355, 550 S.E.2d 336, 341 (2001) (citing Kendrick v. Nationwide

Homes, Inc., 4 Va. App. 189, 191, 355 S.E.2d 347, 348 (1987)).

     In the case at bar, the claimant was not on a special

errand for the benefit of the employer while he traveled back to

his usual place of employment to attend the last portion of the

seminar.   The claimant conceded that he was assigned no specific

task by his employer during the meal break.   Credible evidence

in the record supports the commission's finding that the

claimant was not engaged in an activity that arose out of his

employment at the time of his traffic accident.   The claimant

was not tasked with any duty while on his meal break.    He was

free to do whatever he wished during the one-hour period when

the automobile accident occurred.

     In Harbin, we applied the rule where the employee sustained

injuries while en route to a business meeting held away from the

employer's premises.   We held that the injuries were compensable

because the employee's supervisor directed him to attend the

off-premises meeting, putting the employee on a special errand

entitling him to benefits.   In the case at bar, unlike the

employee in Harbin, the claimant was not required to be away

from his employer's place of employment while performing a duty

assigned by the employer.    The evidence supports the

commission's finding that the claimant was not performing any

task of his employment when he was travelling off the employer's

premises for dinner.   Accordingly, the commission did not err in

                                - 7 -
finding that the special errand exception did not apply to the

circumstances of this case.    Credible evidence supports the

commission's decision, which we affirm.

         3.     A Public Officer Modification to the Rules

     The claimant also contends the commission failed to

recognize that "the traditional rules of 'in the course of'

employment do not apply to him" due to the nature of his

position as a police officer.    He cites Graybeal v. Bd. of

Supervisors of Montgomery County, 216 Va. 77, 216 S.E.2d 52

(1975), as authority for that position.

     We must again disagree with the claimant.       Graybeal does

not stand for the proposition that any injury suffered at any

time by an individual serving as a public employee is

compensable under the Workers' Compensation Act.      In Graybeal, a

bomb planted on a family car at the home of a Commonwealth's

Attorney exploded and injured him.       The Commonwealth's Attorney

had previously prosecuted the bomber who sought revenge for the

successful murder prosecution.    The Court held the employee was

in the course of employment because the injury originated from

his employment as a prosecutor.    "The course from prosecution to

desire-for-revenge to injury was unbroken."      216 Va. at 80, 216

S.E.2d at 54.

     In the matter at bar, the injuries suffered by the claimant

have no direct nexus to his employment.      He was injured, while

on a break from work, when his personal car was struck by

                                 - 8 -
another motorist, an incident any individual is susceptible to

experiencing on our public highways.   "'The risk of going to

lunch [or dinner] is not a risk incident to the employment, but

is rather an incident of life generally.'"   Dreyfus & Company,

Inc. v. Meade, 142 Va. 567, 572, 129 S.E. 336, 337 (1925)

(citation omitted).

     Accordingly, we affirm the decision of the commission.

                                                         Affirmed.




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