'Grassy area' not sufficient description to identify employer premises
Case name: Gaston v. Black, et al., No. 2770-08-4 (Va. Ct. App. 08/11/09, unpublished).
The Virginia Court of Appeals upheld the denial of workers' compensation benefits based on a finding that the grassy area where the employee fell was not an extension of the employer's premises.
What it means:
In Virginia, an employee may be able to show she sustained a compensable injury if she can establish the place she fell was a walkway, sidewalk or other place of ingress and egress where her employer had a "right of passage."
Summary: An employee alleged she tripped over a sprinkler in a grassy area on her employer's premises and suffered injuries from the fall. She argued the injury arose out of and in the course of her employment and was therefore compensable. The Virginia Court of Appeals held the employee did not satisfy her burden of establishing where she was at the time of the fall. It noted that generally, an employee going to or from work is not engaged in performing a service arising out of or incidental to her employment.
The court recognized an exception to the general rule when the employee's injury occurs on an exclusive way of ingress and egress from the place of employment. The court pointed out, however, the only evidence offered by the employee was her testimony that she left the building through the main entrance and tripped over an object in a grassy area and fell. Her claim was devoid of any evidence, whether testimony or a photograph or a drawing that indicated where she was walking at the time of her fall. The court stated that without additional evidence it could not hold that she was injured while in an area that "was in practical effect a part of [the employer's] premises" or in an area over which the employer had some right of passage. It affirmed the dismissal of her claim for benefits.
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September 10, 2009
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