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MARSHALL v. CRAFT FORKLIFT, INC., et al.




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MARSHALL

v.

CRAFT FORKLIFT, INC., et al.


COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Frank

Argued at Chesapeake, Virginia

Record No. 0893-03-1

RANDY WAYNE MARSHALL

v.

CRAFT FORKLIFT, INC. AND

LIBERTY MUTUAL INSURANCE COMPANY

 

OPINION BY JUDGE RUDOLPH BUMGARDNER, III

DECEMBER 9, 2003

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Stephen L. Grobel (Stephen L. Grobel, Ltd., on briefs), for
appellant.

Robert A. Rapaport (Jennifer G. Tatum; Clark, Dolph, Rapaport,

Hardy & Hull, P.L.C., on brief), for appellees.

Randy Wayne Marshall appeals the Workers’ Compensation
Commission’s finding that

he did not suffer a compensable injury while driving to work in
a company van. Finding no

error, we affirm.

The worker drove his employer’s van to work on January 8,
2002, and injured his neck,

back, and left hip in a traffic accident. The deputy
commissioner concluded his injuries did not

arise out of and in the course of the employment. The commission
affirmed the deputy by a split

decision. The commission found that the employer gratuitously
provided the van, received no

benefit from doing so, did not pay for travel time, and did not
expose the worker to a risk he

would not have faced in his personal vehicle.

"Decisions of the commission as to questions of fact, if
supported by credible evidence,

are conclusive and binding on this Court." Manassas Ice
& Fuel Co. v. Farrar, 13 Va. App. 227,

229, 409 S.E.2d 824, 826 (1991). Craft Forklift hired the worker
in September 2001 as an

equipment mechanic and issued him a van in December 2001. The
employer did not compensate

workers for time spent commuting to or from work. Workers always
reported to the employer’s

shop to clock in before reporting to a customer’s location and
returned at the end of the day to

clock out. Only the supervisor took a company van home because
the employer did not want

company vans on the road and needed only one service man on
call.

The worker told the owner he had car trouble and
"practically begged" to use the van to

travel to and from work each day. The owner eventually agreed to
permit the worker to use the

van to commute. The worker’s car needed either a state
inspection or some repair work. The

owner expected the arrangement to end when the worker fixed his
car.

The worker gave conflicting explanations of his arrangement for
the use of the van. He

initially testified the owner insisted that he use the van to
commute. Later, he testified the owner

"told me I could do it," but denied ever asking for
permission to drive the van to and from work.

The commission resolved the conflicts in the evidence against
the worker. Goodyear Tire

& Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433,
437 (1987). It found "the

employer gratuitously allowed" the worker to use the van
and "received no benefit from this

arrangement." The commission also noted that the worker was
not paid for time spent

commuting and was exposed to no greater risk of injury in the
company van than in his personal

vehicle. Credible evidence supports the commission’s finding
that the employer was doing the

worker a favor.

Generally, an employee injured while going to and from work is
not covered by the Act.

Lucas v. Biller, 204 Va. 309, 314, 130 S.E.2d 582, 586 (1963).
However, when the employer

furnishes transportation to or from work and the employee
"is accidentally injured during the

course of travel, the injury arises out of and in the course of
his employment and is compensable

under the Act." Id. The transportation exception applies if
the employer provides transportation

as a result of an agreement between the parties; the
transportation is "furnished by custom to the

extent that it is incidental to and part of" the employment
contract; or it results from "a continued

practice in the course of the employer’s business," which
is mutually beneficial to the parties.

Bristow v. Cross and Century Concrete Servs., 210 Va. 718,
720-21, 173 S.E.2d 815, 817

(1970).

The worker asserts the employer provided transportation as a
result of an agreement. The

assertion adopts a meaning of "agree" that describes a
legal relationship completely opposed to

that required by Bristow. In this case, the employer
"agreed" in the sense of permitting,

allowing, or letting the worker use the van. The worker received
gratuitous permission. The

first exception noted in Bristow describes a contractual
agreement. Here, the employer "agreed"

in the sense he gave gratuitous permission to the worker, but
that did not constitute a binding

relationship that formed a part of the employment contract. The
worker received no entitlement

that he could enforce under contract law. The employer incurred
no obligation that law required

him to honor. The employer could terminate the use of the van
unilaterally. The relationship

was not a contractual agreement; it was gratuitous permission.
That permission was not an

agreement to furnish transportation as defined in Bristow.

The worker contends his evidence also satisfies the other two
exceptions established in

Bristow. The record does not support the contentions. The
employer permitted the worker to

use the van to commute as a favor because the worker’s vehicle
needed repair. While the worker

used the van for twenty days, his use was to end when his own
vehicle was repaired. That usage

was not a custom incidental to the employment contract. Finally,
the practice of using the van to

commute was a favor to the worker and of no benefit to the
employer.

The facts of this case are similar to LeWhite Construction v.
Dunn, 211 Va. 279, 176

S.E.2d 809 (1970). In that case, the employer provided the
worker with a ride home from a

North Carolina job site although it did not routinely provide
transportation to its workers. The

Court held that the employer’s free ride was a favor to the
worker and his accidental death was

not compensable.

The facts of this case are distinguishable from Bristow, 210 Va.
at 722, 173 S.E.2d at

818, and Boyd’s Roofing Co. v. Lewis, 1 Va. App. 93, 335
S.E.2d 281 (1985), because the

arrangement did not benefit the employer. In Bristow, the
employer agreed to provide workers

transportation in vehicles it "owned, controlled, and
operated." The Court held this

transportation constituted an "incident to [the] employment
. . . of mutual benefit" to the parties.

In Boyd’s Roofing, the worker routinely commuted to work in a
company-owned truck driven by

the owner’s son. This Court held the "course of
conduct" benefited both parties and constituted

a transportation exception to the going and coming rule. 1 Va.
App. at 95, 335 S.E.2d at 282-83.

Credible evidence supports the commission’s findings.
Accordingly, we affirm its

decision.

Affirmed.

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