Coming and Going, Extended Premises Rules Don’t Help Employee Injured on Crosswalk

An employee of a diagnostics firm in Virginia who was injured when she fell on a crosswalk on her way to work is not entitled to workers’ compensation benefits.

The Virginia Workers’ Compensation Commission (VWCC) has upheld a deputy commissioner’s denial of benefits for the employee, finding she did not qualify under exceptions to the coming and going rule or under the extended premises doctrine.

The claimant is employed as a phlebotomist for Quest Diagnostics at its location inside Roanoke Memorial Hospital. She testified that when hired, she was told to park in the parking garage next to the hospital. She has multiple sclerosis and thus has a disabled parking placard. “I can park anywhere there’s a handicap spot as long as it’s open and I have a placard,” she explained.

The employee sustained multiple injuries in February 2022 when she slipped and fell in a crosswalk on her way to work. She sought an award of medical benefits and temporary total disability.

Her employer, Quest Diagnostics, and its insurer, Travelers Property Casualty, argued that she was not eligible for workers’ compensation because the accident did not arise out of and in the course of her employment.

After the deputy commissioner denied her claim for benefits, the VWCC considered her appeal.

The employee testified that she would go through the front entrance of the hospital to get to her work, and this was the only entrance she could use. She denied that she could come through the hospital’s other entrances, such as through the emergency room, the hospital’s back entrance, or the entrance accessed through a tunnel on the north side of the hospital. However, she did not explain why she felt she could not use these other hospital entrances.

On the day of her accident, she parked her car in a designated handicap spot in the parking garage, walked from the garage along a walkway and then came to a crosswalk that led to the hospital entrance. There, she stopped and waited for the light to signal it was safe to cross. When the light changed, the claimant proceeded across the street staying within the crosswalk. When halfway across the street, her foot slipped on ice, causing her to fall.

The VWCC noted that the claimant bears the burden of proving, by a preponderance of the evidence, that her accident occurred in the course of the employment. “An accident occurs ‘in the course of the employment’ when it takes place within the period of the employment, at a place where the employee may reasonably be, and while[she] is reasonably fulfilling duties of [her] employment or engaged in doing something incidental thereto,” the commission explained.

Coming and Going Rule

As a general rule, an employee going to or from the place where her work is to be performed is not engaged in performing any service growing out of and incidental to her employment. There are several exceptions to this rule: 1) where transportation is provided by the employer or time consumed is paid for, 2) the way used is the sole and exclusive means of ingress and egress, or where the way of ingress and egress is constructed by the employer, or 3) the employee is still charged with some duty or task in connection with employment.

In this case, the deputy commissioner found that none of the exceptions to the coming and going rule applied since Quest neither supplied “the means of transportation,” nor paid the employee for “the time consumed” in travel. When she entered the crosswalk, Quest hadn’t charged her with some work duty or task.

The deputy commissioner further concluded that nothing suggests Quest “constructed” the “way of ingress.” Nor was the path the employee used “the sole and exclusive way of ingress . . . with no other way in.” According to the employer, there were five different public parking areas, and four separate hospital entrances, all open the day she fell.

Last week, the VWCC agreed with the deputy commissioner: “There is insufficient evidence for us to find that the claimant was injured while coming to work on a route that was used as the sole and exclusive means of ingress and egress for the claimant. The employer allowed the claimant to park in the garage/lot across from the hospital entrance. However, the evidence showed there were three other entrances, and employees could park in a variety of lots or on the street. The claimant was not directed to park in any particular area, nor was she prohibited from parking in any particular place. She took the walkway from the garage that led to the crosswalk, a crosswalk that was not, from the evidence, the only means of ingress and egress for employees nor was it constructed by the employer. Accordingly, her injury did not fit into any of the exceptions to the coming and going rule.”

Extended Premises Doctrine

The VWCC also considered the case in light of the extended premises doctrine, which says that if a claimant suffers an accident in a location that is “in practical effect, a part of the employer’s premises,” then any injuries sustained will be considered to have occurred in the course of employment.

According to the commission, the extension of the premises doctrine applies to “the grounds immediately surrounding the building . . . even if the employer did not own or lease the particular place where the injury occurred, provided the employer ‘has some kind of right of passage . . . through which the employer has something equivalent to an easement.'”

Here, the accident occurred while the claimant was passing from the parking garage where she was allowed, but not required, to park her car. She fell in a crosswalk on a street in front of the hospital in which her place of employment was located. The deputy commissioner found and the VWCC affirmed that the claimant’s injury did not occur in a place that could be considered the employer’s “extended premises” to bring her injury into the course of her employment. because the crosswalk’s physical proximity to the hospital is not such as to be in practical effect a part of the employer’s premises and there is no evidence of the employer’s control over the parking deck in which the claimant parked.

The VWCC noted that it considered the case after the Court of Appeals of Virginia’s decision in United Continental Holdings, Inc., v. Sullivan, 79 Va. App. 540 (2024), which was issued after the deadline for the submission of written statements had passed. In the Sullivan case, the court held that the walkway on which the claimant was injured constituted the extended premises of the employer because it was on adjacent premises used by the employee as a means of ingress and egress consistent with the implied consent of her employer. The court in Sullivan noted that the extended premises “doctrine has its limitations.” For example, “a publicly-used traffic lane connecting a parking lot to an employer’s workplace does not extend the employer’s workplace under the doctrine.”

The VWCC also cited a case where a man was struck and killed by a vehicle as he was crossing a public street adjacent to his employer’s plant. The Supreme Court of Virginia held that “the public street was not in such relation to the employer’s plant that it was in practical effect part of the employer’s premises.”