Opinion
Record No. 1548-93-4
January 11, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(James E. Swiger; Swiger Cay, on brief), for appellant.
No brief for appellees Professional Tile Company and Hi Tech Interiors.
(Stephen D. Rosenthal, Attorney General; John J. Beall, Jr., Senior Assistant Attorney General; Gaye Lynn Taxey, Assistant Attorney General, on brief), for appellee Uninsured Employer's Fund.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Worker's Compensation Commission. Rule 5A:27. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
James P. Flynn (claimant) contends that the commission erred in (1) reversing the deputy commissioner's credibility finding regarding his testimony; and (2) finding that he failed to prove an injury by accident arising out of and in the course of his employment.
In denying the claimant's application, the commission held:
Even if we were to accept the claimant's testimony, we still find the claimant has failed to prove an injury by accident arising out of and in the course of his employment. Once the trip to Union Station had been aborted, the claimant and Mr. Neveu embarked on the detour to Georgetown, which took them out of the scope of their employment. They were no longer performing any duties for the employer. The accident occurred while on the way home from this personal mission, therefore the claimant was not in the course of his employment when he was injured. Since we find that the claimant was not in the course of his employment from the time the trip to Union Station was aborted through the time he sustained his accident, it is not necessary to address the personal comfort doctrine.
On appellate review, we construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). A finding that an injury did not arise out of and in the course of employment is a mixed finding of law and fact and is properly reviewable on appeal. City of Richmond v. Braxton, 230 Va. 161, 163-64, 335 S.E.2d 259, 261 (1985).
"In order to establish entitlement to compensation benefits, the claimant must prove, by a preponderance of the evidence, an injury by accident arising out of and in the course of his employment." Classic Floors, Inc. v. Guy, 9 Va. App. 90, 95, 383 S.E.2d 761, 764 (1989). Unless we can say as a matter of law that claimant met his burden of proof, the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
"'[A]n accident 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.'" Thore v. Chesterfield County Bd. of Supervisors, 10 Va. App. 327, 331, 391 S.E.2d 882, 885 (1990) (citations omitted).
The commission's finding that claimant's accident occurred outside the scope of his employment while on the way home from a personal mission is supported by credible evidence. Claimant admitted that, at approximately 8:00 to 8:30 p.m. on October 27, 1991, he and a co-worker, David Neveu, decided to abort their mission to travel to the Union Station job site to review a punch list. Instead, they decided to go to a Georgetown nightclub. Once claimant and Neveu decided to go to the nightclub instead of the job site, claimant removed himself from the scope of his employment and embarked on a personal mission.
Nothing in the record demonstrates that claimant's injury occurred within the period of his employment, at a place where he was reasonably expected to be while fulfilling the duties of his employment. Rather, the clear inference from claimant's testimony and that of Neveu is that once they decided to go to the nightclub in Georgetown, they did so for personal reasons and not for any reason related to their employment. "Where reasonable inferences may be drawn from the evidence in support of the commission's factual findings, they will not be disturbed by this Court on appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).
Moreover, immediately prior to his injury, claimant was not traveling to nor engaged in activities reasonably incidental to his work as a professional tile installer. Claimant's travel from the nightclub to the condominium was not incidental to his work. Finally, since claimant had not returned to the scope of his employment at the time of his injury, we need not address the personal comfort doctrine.
Even accepting claimant's testimony, it is clear that the commission did not err in finding that his injury did not occur in the course of his employment. Having found that the commission did not err with respect to this issue, we need not address the issue of whether the commission erred in reversing the deputy commissioner's credibility determination.
For the reasons stated, we affirm the commission's decision.
Affirmed.