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“My Employee was Injured Off Premises… Is This Compensable?”

For an injury to be compensable under the Virginia Workers’ Compensation Act, a claimant must prove that the injury arose out of and in the course and scope of his employment. An injury occurs “in the course of employment” when it takes place within the period of employment, at a place where the employee may be reasonably expected to be, and while he is reasonably fulfilling the duties of his employment or is doing something which is reasonably incidental thereto.” However, Virginia has adopted three doctrines which expands the “course of employment” prong of a compensable injury. These doctrines include (1) Extended Premise Doctrine; (2) Going and Coming Rule; and (3) Personal Comfort Doctrine.

  1. Extended Premise Rule
    The extended premise rule permits compensation when an injury occurs in a location that, even though it is not owned or maintained by claimant’s employer, was in such proximity in relationship to the space of the employer, that it is for all practical effect the employer’s premise. The Court of Appeals recently affirmed the finding of the Commission finding that the Extended Premise Rule applied when a United Airlines customer service representative slipped on water on a covered walkway between the parking garage and terminal. United Continental Holdings, Inc. v. Molly Sullivan, Record No.: 0164-23-4 (January 23, 2024). In United Continental, the employer did not own or maintain the walkway at issue, the walkway was not directly connected to the building where the claimant was to perform work and the employees were not required to park in the garage to which the walkway connected. Id. Nonetheless, the Court of Appeals held that claimant’s presence on the walkway was required and reasonably expected by virtue of her employment with United. Id. Therefore, the claimant effectively entered United’s workplace under the extended premise rule. Id.
  2. Going and Coming Rule
    An accidental injury sustained when the employee is “going to” work does not arise “in the course of” the employment simply because the employee at that time and place is not yet “on the job.” There are, however, three exceptions to this rule: (1) where the means of transportation used to go to and from work is provided by the employer or the employee’s travel time is paid for or included in wages; (2) where the way used is the sole means of ingress and egress or is constructed by the employer; and (3) where the employee is charged with some duty or task connected to his employment while on his way to or from work. Recently, the Full Commission reversed a Deputy Commissioner’s finding that the claimant’s injuries from a motor vehicle accident on the way to work did not meet the transportation exception of the going and coming rule. Moncho v. Hercules Remodeling, Jurisdiction Claim No. VA00002006950 (February 22, 2024). In Moncho, the employer testified that the claimant was not paid for travel time and was aware the claimant did not have transportation available when he was hired. Id. Instead of requiring the claimant to secure his own transportation, the employer arranged for him to be driven to work by another employee. Id. The Full Commission found that the practice of this employer to provide the employee transportation both to and from work is of such a nature to border on an implied contract and therefore the transportation exception applied. Id. The Full Commission further noted that even if this was not an implied contract, this is a situation which has arisen from a continuing practice in the course of the employer’s business which is beneficial to both the employer and the employee. Id.
  3. Personal Comfort Doctrine
    The personal comfort doctrine recognizes that certain acts “are necessary to the life, comfort, and convenience of an employee while at work.” Therefore, occasional breaks and excursions for food, drink, rest and restroom visitation can be deemed in the course of the employment, as the personal comfort of the employee benefits the employer by enhancing feasibility and desirability of employment, good physical and mental conditioning of his employees, and the cultivation of good employment relationships. If the employer provides the employee a satisfactory place to satisfy his personal comfort, the employee must use that place or risk the loss of compensation.” Kraf Constr. Servs., Inc. v. Ingram, 17 Va. App. 295, 299 (1993). However, where a place to satisfy the employee’s personal comfort is not provided by employer, the question becomes whether the activity satisfying the employee’s personal comfort is incidental to the employment or a ‘frolic’ of one’s own. In Howard Jenkins v. CVS Health Corporation, a claimant was involved in a motor vehicle accident when he traveled off-premise to a nearby Wendy’s, in his own vehicle, to get food for himself and a co-worker, paid by the employer, as a reward for their good work. Jurisdiction Claim No. VA02000039571 (April 11, 2024) (holding that the claimant’s injury was compensable on other grounds). The Full Commission found that the personal comfort doctrine was inapplicable to the circumstances of this case as the claimant was not on a personal errand and was instead completing a task that benefited the employer. Id.

Compensability pursuant to the extended premise doctrine, going and coming rule, and personal comfort doctrine are extremely fact-based analysis. It does appear that the Commission is trending towards expansion of these doctrines, as seen in the United and Moncho cases. Due the complexity of these cases, we recommend that adjusters reach out to defense counsel early when faced with an off premise accident. As always, our highly skilled team of professionals are available and happy to answer any questions you may have.


Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.

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