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Hunton & Williams v. Gilmer8/8/1995
OPINION BY CHIEF JUDGE NORMAN K. MOON
Hunton & Williams and Vigilant Insurance Company ("appellant") appeal a decision of the Virginia Workers' Compensation Commission awarding benefits to Sue S. Gilmer for injuries she sustained when she slipped on ice and fell while walking from her parking space to her place of employment. Appellant argues that the commission erred in awarding Gilmer compensation because the "going and coming" rule barred a determination by the commission that Gilmer suffered an injury by accident arising out of and in the course of employment. We agree and reverse the commission's ruling.
The evidence established that Gilmer worked as a legal secretary for Hunton & Williams, which had offices in Crestar Bank's downtown Norfolk building. On February 2, 1994, shortly before 8:30 a.m., Gilmer arrived at the Crestar Bank parking garage, across the street from the bank building. Snow was falling and a light coating of snow covered the garage deck where Gilmer parked. As Gilmer walked down a ramp from the level on which her car was parked to the next level, she slipped on ice and fell, injuring her back.
Hunton & Williams neither owns nor maintains the parking garage. Gilmer had a regular parking space in the garage for which she paid seventy dollars per month via a payroll deduction
from her earnings at Hunton & Williams. She was not required to park in the Crestar garage.
Crestar Bank permits Hunton & Williams's employees to park in the Crestar garage because Hunton & Williams is a tenant of Crestar Bank. Crestar requires Hunton & Williams to pay by one check for the parking of all its employees who park in Crestar's garage. However, Hunton & Williams does not receive a group rate parking discount from Crestar and does not subsidize parking for its employees. Rather, Hunton & Williams deducts the cost of parking from each employee's paycheck.
Hunton & Williams informed all of its employees that though they were not required to park in the Crestar garage, they might do so if space was available. The record does not reveal whether Crestar designated a certain area in the garage to be used exclusively by employees of Hunton & Williams. The record also does not reveal whether members of the general public were allowed to park in Crestar's garage or whether parking was restricted to customers and employees of Crestar and its tenants.
The Supreme Court of Virginia drew a "bright line" at the employer's door in Brown v. Reed, 209 Va. 562, 565, 165 S.E.2d 394, 397 (1969), when it held that if an employee is injured while going to and from his work and while on the employer's premises, the injury is treated at law as though it happens while the employee is engaged in his work at the place of its performance. See also Jones v. Colonial Williamsburg Found.,
8 Va. App. 432, 437-38, 382 S.E.2d 300, 303 (1989), aff'd en banc, 10 Va. App. 521, 392 S.E.2d 848 (1990). Virginia is among a majority of states that now consider parking lots owned by the employer or maintained by the employer for its employees part of the "premises," whether within or separated from company premises. See 1 Arthur Larson, The Law of Worker 's Compensation , ยง 15.42(a), 4-104 (1995); see also Reed, 209 Va. at 565, 165 S.E.2d at 397; Painter v. Simmons, 238 Va. 196, 380 S.E.2d 663, 665 (1989). <
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