                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Annunziata
Argued at Alexandria, Virginia


TEMPLETON OLDSMOBILE DODGE AND
 VADA GROUP SELF-INSURANCE ASSOCIATION
                                     MEMORANDUM OPINION * BY
v.   Record No. 0446-99-4          JUDGE ROSEMARIE ANNUNZIATA
                                         APRIL 18, 2000
CHARLES DYER


       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Charles F. Midkiff (Joshua M. Wulf;
          Midkiff & Hiner, P.C., on brief), for
          appellants.

          Craig A. Brown (Ashcraft & Gerel, on brief),
          for appellee.


     Appellants, a car dealership and its insurer, appeal the

decision of the Workers’ Compensation Commission affirming the

deputy commissioner’s award of total temporary disability

benefits to Charles Dyer.   Appellants contend that the award to

Dyer is erroneous under the "going and coming" rule barring

employer liability for car crashes involving employees driving

vehicles owned by the employer.   Dyer argues on cross-appeal

that the commission erred in affirming the deputy commissioner’s

decision to terminate Dyer’s benefits after December 30, 1997.

We find no error and affirm.


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                              BACKGROUND

        Under familiar principles, we state the evidence in the

light most favorable to Dyer, the party prevailing below.        See

Smithfield Packing Co., Inc. v. Carlton, 29 Va. App. 176, 179,

510 S.E.2d 740, 741 (1999).

        Dyer suffered injuries in a car accident on December 2,

1997.    At the time, he was employed as a car salesman by

appellant Templeton, and he was on his way to work when the

crash occurred.    The car he was driving was a demonstrator

vehicle owned by Templeton.    A demonstrator, or "demo" vehicle,

is a new vehicle owned by a car dealership that its employees

are permitted to drive for a limited amount of time.      The

vehicle bore an emblem bearing Templeton’s name, and stickers

were affixed to its windows advertising the vehicle’s features

and its selling price.    Demos bear such stickers so that

potential buyers who see the vehicle off the premises of the

dealership are afforded purchase information.      Templeton’s

practice is to allow employees to drive demo vehicles until they

attain the 5,500 mile mark.    Templeton maintained the insurance

on the vehicle driven by Dyer and provided it with routine

maintenance and service.    Employees are required to show demos

to prospective buyers at any time, whether on or off Templeton’s

premises, even after business hours.       Furthermore, employees are

not permitted to let family members drive demos, and they are


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required to keep the vehicles clean at all times.   The

restrictions on employees’ use of demos include prohibitions

against driving the demo on vacations and on long distance

trips.    Employees are further prohibited from driving the

vehicles more than fifty miles per month for purposes other than

commuting to and from work and showing the vehicle to potential

buyers.

     Templeton deducted $344 per month from Dyer's paycheck to

help cover expenses associated with his use of the demo,

including the cost of insuring the vehicle and its maintenance.

Dyer also provided fuel for the demo he was assigned.

     Dyer filed a petition for workers’ compensation benefits on

January 21, 1998, alleging compensable injury and seeking

temporary total disability benefits from December 2, 1997

through February 9, 1998, as well as medical benefits.

Appellants defended the claim by arguing that the "going and

coming" rule barred any such recovery.   On July 6, 1998, the

deputy commissioner awarded benefits to Dyer on the ground that

his injury arose from his employment, and occurred in the course

of that employment.   Appellants appealed to the full commission,

and on February 9, 1999, the commission affirmed the award to

Dyer, but declined to award benefits after December 30, 1997,

finding that Dyer's physical restrictions following that date

did not prohibit him from performing his pre-injury duties.


                                - 3 -
Appellants noted their appeal of the commission's decision to

this Court.

                               ANALYSIS

     Whether an accident arose out of and in the course of

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

reviewable on appeal.     See Carlson v. Dept. of Military Affairs,

26 Va. App. 600, 607, 496 S.E.2d 107, 110 (1998).    Appellants

base their appeal on the general principle that employers are

not liable for injuries sustained by employees while travelling

to or from work, citing in support the Supreme Court of

Virginia’s decision in Ramey v. Bobbitt, 250 Va. 474, 478, 463

S.E.2d 437, 438 (1995).    They acknowledge, however, that the

Supreme Court has established three exceptions to the "going and

coming" rule:

     [1.]     "Where 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[;]

     [2.]     Where the way used is the sole and
              exclusive way of ingress and egress with no
              other way, or where the way of ingress and
              egress is constructed by the employer[; or]

     [3.]     Where the employee on his way to or from
              work is charged with some duty or task in
              connection with his employment."

GATX Tank Erection Co. v. Gnewuch, 221 Va. 600, 603-04, 272

S.E.2d 200, 203 (1980) (quoting Kent v. Virginia-Carolina

Chemical Co., 143 Va. 62, 66, 129 S.E. 330, 331-32 (1925)).


                                 - 4 -
Dyer bears the burden of proving by a preponderance of the

evidence that one of the above exceptions applies to his case.

See Sentara Leigh Hospital v. Nichols, 13 Va. App. 630, 636, 414

S.E.2d 426, 430 (1992).    The commission found that Dyer met this

burden by proving that two exceptions to the "going and coming"

rule –- the first and the third -- applied to the facts of his

case.

        We find that the commission properly found that Dyer proved

the third exception to the "going and coming" rule. 1   In support

of their contention that the third exception to the rule does

not apply to Dyer's use of the demo, appellants cite Carlson.

Their reliance on Carlson is misplaced.     Carlson involved a

soldier in the National Guard who died while travelling to his

duty station at Fort A.P. Hill.     See 26 Va. App. at 604, 496

S.E.2d at 108.    His dependents sued the Commonwealth's

Department of Military Affairs under the Workers' Compensation

Act, claiming that Carlson's travel and ensuing death arose out

of and in the course of his employment with the National Guard.

This Court held that none of the exceptions to the "going and

coming" rule was applicable.    The Court specifically addressed

the third exception, noting that no evidence suggested that


        1
       Because we find that Dyer met the third exception to the
"going and coming" rule, we do not address the first exception.
It is conceded that the second exception is inapplicable to the
facts of this case, and we will not address the issue.


                                 - 5 -
Carlson was engaged in any duty or task connected with his

employment while en route to his post.     See id. at 608, 496

S.E.2d at 111.

     The evidence in this case establishes that Dyer, unlike the

decedent in Carlson, was charged with at least three tasks by

his employer in his travel to work:     1) he was required to get

the car to Templeton’s premises each work day, because his use

agreement with Templeton expressly required him to have the demo

available to show to customers during business hours; 2) he was

required to display the dealer emblem and sales stickers on the

car; and 3) he was required to show the car to any potential

buyers, even off Templeton’s premises.    We thus find that Dyer

was engaged in the performance of duties which benefited his

employer as he drove the demo to work on the day of the

accident.   The third exception to the "going and coming" rule

therefore applies.

     Dyer contends on cross-appeal that the commission erred in

determining that he was able to work after December 30, 1997.

"[T]he findings of fact made by the Workers' Compensation

Commission will be upheld when supported by credible evidence."

Commonwealth/Department of State Police v. Haga, 18 Va. App.

162, 166, 442 S.E.2d 424, 426 (1994) (citing James v. Capitol

Steel Construction Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488

(1989)).    The commission agreed with the finding of the deputy


                                - 6 -
commissioner that Dyer was able to perform his pre-injury work

beginning on December 31, 1997.   The commission noted that

Dyer's physician prohibited him from engaging in excessive

bending and lifting at that time and that the evidence showed

Dyer’s employment required him to do only a modicum of bending

and lifting.   The commission therefore found that the degree of

bending and lifting described in the evidence did not exceed

Dyer's restrictions.   Because we cannot say that the evidence

upon which the commission relied lacked credibility, we affirm

the commission’s finding that Dyer was able to work beginning on

December 31, 1997.

     For the foregoing reasons, we affirm the decision of the

commission.

                                                   Affirmed.




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