NOTICE: The opinions posted here are subject to formal
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the Virginia Court of Appeals.
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
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
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
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
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
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
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
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