                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia


GLORIA B. JENKINS
                                         MEMORANDUM OPINION * BY
v.   Record No. 2064-01-4       CHIEF JUDGE JOHANNA L. FITZPATRICK
                                               MAY 7, 2002
NATIONAL FRUIT PRODUCT COMPANY, INC.
 AND FIRST LIBERTY INSURANCE COMPANY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Nikolas E. Parthemos (Parthemos & Bryant,
          P.C., on brief), for appellant.

          J. David Griffin (Fowler, Griffin, Coyne,
          Coyne & Patton, P.C., on brief), for
          appellees.


     Gloria B. Jenkins (claimant) contends the Workers'

Compensation Commission (commission) erred in finding that her

accident of January 4, 2000 did not arise out of her employment

with National Fruit Product Company, Inc. (employer).    Finding

no error, we affirm the commission's decision.

                            I.   FACTS

     We view the evidence in the light most favorable to the

employer, who prevailed below.   See Westmoreland Coal v.

Russell, 31 Va. App. 16, 20, 520 S.E.2d 839, 841 (1999).     The

commission's factual findings are conclusive and binding on this


     * Pursuant to Code § 17.1-413 this opinion is not
designated for publication.
Court when those findings are based on credible evidence.     See

James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382

S.E.2d 487, 488 (1989); Code § 65.2-706.   "The fact that there

is contrary evidence in the record is of no consequence."

Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d

32, 35 (1991).

     On January 4, 2000, claimant, a label machine operator for

employer, began work at 5:00 p.m. and she expected to work until

3:30 or 4:30 a.m.   During each shift, employer allowed employees

two fifteen minute breaks and a dinner break.   Employees did not

"clock out" for breaks.   During claimant's 6:30 p.m. break, she

left her work area to put a ceramic dog she purchased from a

co-worker in her car which was located in a parking lot across a

public highway, Route 522.    The ceramic dog had no relationship

to her job or her employer.   Claimant was crossing Route 522

when she was struck by a car.   The extent of her injuries and

her period of disability are not at issue in this case.

     Claimant's car was parked in a gravel lot owned by the

railroad.    Employees of National Fruit were allowed to park in

the railroad's gravel lot, a lot owned by employer also located

across Route 522 and on the streets near the plant.   The

employer stated, "[I]f [the employees] park in the gravel lot,

that's always at their own risk because that's owned by the

railroad."   Employer did not direct its workers where to park.

Employer provided a parking decal for those workers who chose to

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park in the gravel lot as a method of identification, but most

employees did not use the permit.

     The deputy commissioner found that the "personal comfort"

doctrine applied to the instant case and held that "[i]t would

be unsafe and inconvenient for an employer to have employees

keeping personal items around the work area."   The commission

reversed finding that neither the public street nor the adjacent

parking lot met the "extended premises" requirement.

          [W]e held that injuries suffered while on a
          personal comfort break are compensable only
          if such break is taken on the premises or
          extended premises of the employer, or at a
          place or facility designated by the
          employer, or at a place and facility
          designated by the employer for such a
          purpose, or incidental to required travel
          outside the employer's premises to perform
          such duties.

          The "extended premises" rule has been
          analyzed by the Commission and the courts
          extensively relative to the "going and
          coming" rule."

           *      *      *      *      *        *      *

          [T]he evidence does not establish that the
          parking lot was reserved for the exclusive
          use of the employer's workers. The record
          reflects that the lot is owned by the
          railroad and is used by the employer's
          workers, but does not reflect that such use
          is exclusive . . .[nor] that this parking
          lot is maintained and controlled by
          employer. No evidence was presented as to
          whether the employer leased this parking
          lot . . . and [contrary to the deputy
          commissioner's finding] nothing prevent[ed]
          employees from parking on streets adjacent
          to the premises. . . .


                              - 3 -
          [W]e find the evidence insufficient to
          establish that the employer controlled or
          maintained the public street on which the
          claimant was injured. Therefore, we find
          that the public street is not an extension
          of the employer's premises. Further, the
          evidence does not establish that either the
          public street or the parking lot is
          analogous to the sole means of ingress or
          egress referred to in Barnes[v. Stokes, 233
          Va. 249, 355 S.E.2d 330 (1987),] and
          Painter[v. Simmons, 238 Va. 196, 380 S.E.2d
          663 (1989)].

Claimant appealed that decision.

                                II.

     Appellant contends the commission erred in finding her

accident did not arise out of her employment.   She argues that

the personal comfort doctrine controls the outcome and that the

public street she had to cross to get to the parking lot was an

extension of the employer's premises.

     Assuming without deciding that the facts of this case

establish a basis for the personal comfort doctrine, credible

evidence supports the commission's finding that neither the

parking lot nor the public highway were part of the employer's

"extended premises."

     The question of "[w]hether an accident arises out of the

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

by the appellate court."   Plumb Rite Plumbing Service v.

Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305, 305 (1989).     An

injury arises out of the employment where "[t]here is apparent

to the rational mind upon consideration of all the

                               - 4 -
circumstances, a causal connection between the conditions under

which the work is required to be performed and resulting

injury."   Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E.

684, 686 (1938).    "'The mere happening of an accident at the

workplace, not caused by any work related risk . . . is not

compensable.'"     Ogden Allied Aviation v. Shuck, 17 Va. App. 53,

54, 434 S.E.2d 921, 922 (1993) (quoting Barbour, 8 Va. App. at

484, 382 S.E.2d at 306), aff'd on reh'g en banc, 18 Va. App.

756, 446 S.E.2d 898 (1994).

     In Stone v. Keister's Market, 34 Va. App. 174, 538 S.E.2d

364 (2000), a factually similar case, the claimant was crossing

a public highway to reach the lot where her car was parked when

she was struck by a car.    We held:

           [i]n the present case, the parking lot was
           neither owned nor maintained by employer,
           and claimant was not required to park there.
           While employees could not park on the
           employer's premises, they could park any
           other place they chose. Employer did not
           pay for employees' parking, did not
           designate parking spaces for the employees,
           and the lot was not used exclusively by
           employees. [T]he parking lot was neither
           owned or [sic] maintained by employer and
           its use was not an incident of employment.

Id. at 182, 538 S.E.2d at 368.    While claimant in the instant

case was on a work break, rather than leaving the workplace,

this distinction is of no moment.

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

Ramey was struck and killed by a motor vehicle on a public


                                 - 5 -
street adjacent to his employer's premises.   The Supreme Court

held "[t]he public street was not in such relation to

[employer's] plant that it was in practical effect part of

[employer's] premises.    Nor was it a place where [employer]

expected Ramey to be for employment purposes."    Id. at 479, 463

S.E.2d at 441.

     In Hunton & Williams v. Gilmer, 20 Va. App. 603, 460 S.E.2d

235 (1995), Gilmer slipped and fell in a parking garage across

the street from her office.   Her employer arranged with the

lot's owner to reserve a certain number of spaces for its

workers and deducted the cost of the parking spaces from the

employees' pay.   We held that "no evidence showed that

[employer's] employees were required to park in the [bank]

parking garage or that Gilmer sustained her injury in an area of

the parking lot reserved for [employer's] employees only.     Thus,

. . . no evidence disclosed any control or authority by

[employer] over the area in which Gilmer parked." 1

     The instant case is controlled by the analysis of Gilmer

and Stone.   The parking lot at issue was neither owned nor

controlled by employer.   Employees were allowed, but not

required, to park in the lot.   Public parking was allowed on

Route 522.   The public highway was neither controlled nor


     1
       Claimant contends that the Ramey and Gilmer "extended
premises" analysis should be limited to the initial arrival and
departure from work, and not to an employee excursion during
normal work hours. We find no support for that limitation.

                                - 6 -
maintained by employer and was not the sole means of ingress and

egress to the workplace. 2   Thus, credible evidence supports the

commission's finding that claimant's injury did not arise out of

her employment.   The decision of the commission is affirmed.

                                                    Affirmed.




     2
       We note that Stone also makes clear that the situs of the
accident as a public highway is not dispositive. "If claimant
would have met the criteria of Barnes and its progeny, the fact
that she was injured on a public road leaving work and going
directly to her car would not have defeated her claim." Stone,
34 Va. App. at 183 n.1, 538 S.E.2d at 369 n.1.

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