COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Annunziata 

Argued at Alexandria, Virginia 

TEMPLETON OLDSMOBILE DODGE AND 

 VADA GROUP SELF-INSURANCE ASSOCIATION 

 MEMORANDUM OPINION* BY 

v. Record No. 0446-99-4 JUDGE ROSEMARIE ANNUNZIATA 

 APRIL 18, 2000 

CHARLES DYER 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

Charles F. Midkiff (Joshua M. Wulf; 

Midkiff & Hiner, P.C., on brief), for 

appellants. 

Craig A. Brown (Ashcraft & Gerel, on brief), 

for appellee. 

 

 * Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

Appellants, a car dealership and its insurer, appeal the 

decision of the Workers’ Compensation Commission affirming the 

deputy commissioner’s award of total temporary disability 

benefits to Charles Dyer. Appellants contend that the award to 

Dyer is erroneous under the "going and coming" rule barring 

employer liability for car crashes involving employees driving 

vehicles owned by the employer. Dyer argues on cross-appeal 

that the commission erred in affirming the deputy commissioner’s 

decision to terminate Dyer’s benefits after December 30, 1997. 

We find no error and affirm. 
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BACKGROUND

Under familiar principles, we state the evidence in the 

light most favorable to Dyer, the party prevailing below. See

Smithfield Packing Co., Inc. v. Carlton, 29 Va. App. 176, 179, 

510 S.E.2d 740, 741 (1999). 

Dyer suffered injuries in a car accident on December 2, 

1997. At the time, he was employed as a car salesman by 

appellant Templeton, and he was on his way to work when the 

crash occurred. The car he was driving was a demonstrator 

vehicle owned by Templeton. A demonstrator, or "demo" vehicle, 

is a new vehicle owned by a car dealership that its employees 

are permitted to drive for a limited amount of time. The 

vehicle bore an emblem bearing Templeton’s name, and stickers 

were affixed to its windows advertising the vehicle’s features 

and its selling price. Demos bear such stickers so that 

potential buyers who see the vehicle off the premises of the 

dealership are afforded purchase information. Templeton’s 

practice is to allow employees to drive demo vehicles until they 

attain the 5,500 mile mark. Templeton maintained the insurance 

on the vehicle driven by Dyer and provided it with routine 

maintenance and service. Employees are required to show demos 

to prospective buyers at any time, whether on or off Templeton’s 

premises, even after business hours. Furthermore, employees are 

not permitted to let family members drive demos, and they are 
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required to keep the vehicles clean at all times. The 

restrictions on employees’ use of demos include prohibitions 

against driving the demo on vacations and on long distance 

trips. Employees are further prohibited from driving the 

vehicles more than fifty miles per month for purposes other than 

commuting to and from work and showing the vehicle to potential 

buyers. 

Templeton deducted $344 per month from Dyer's paycheck to 

help cover expenses associated with his use of the demo, 

including the cost of insuring the vehicle and its maintenance. 

Dyer also provided fuel for the demo he was assigned. 

Dyer filed a petition for workers’ compensation benefits on 

January 21, 1998, alleging compensable injury and seeking 

temporary total disability benefits from December 2, 1997 

through February 9, 1998, as well as medical benefits. 

Appellants defended the claim by arguing that the "going and 

coming" rule barred any such recovery. On July 6, 1998, the 

deputy commissioner awarded benefits to Dyer on the ground that 

his injury arose from his employment, and occurred in the course 

of that employment. Appellants appealed to the full commission, 

and on February 9, 1999, the commission affirmed the award to 

Dyer, but declined to award benefits after December 30, 1997, 

finding that Dyer's physical restrictions following that date 

did not prohibit him from performing his pre-injury duties. 
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Appellants noted their appeal of the commission's decision to 

this Court. 

ANALYSIS

Whether an accident arose out of and in the course of 

employment is a mixed question of law and fact and is properly 

reviewable on appeal. See Carlson v. Dept. of Military Affairs, 

26 Va. App. 600, 607, 496 S.E.2d 107, 110 (1998). Appellants 

base their appeal on the general principle that employers are 

not liable for injuries sustained by employees while travelling 

to or from work, citing in support the Supreme Court of 

Virginia’s decision in Ramey v. Bobbitt, 250 Va. 474, 478, 463 

S.E.2d 437, 438 (1995). They acknowledge, however, that the 

Supreme Court has established three exceptions to the "going and 

coming" rule: 

 [1.] "Where in going to and from work the means 

 of transportation is provided by the 

 employer or the time consumed is paid for 

 or included in the wages[;] 

 [2.] Where the way used is the sole and 

 exclusive way of ingress and egress with no 

 other way, or where the way of ingress and 

 egress is constructed by the employer[; or] 

 [3.] Where the employee on his way to or from 

 work is charged with some duty or task in 

 connection with his employment." 

GATX Tank Erection Co. v. Gnewuch, 221 Va. 600, 603-04, 272 

S.E.2d 200, 203 (1980) (quoting Kent v. Virginia-Carolina 

Chemical Co., 143 Va. 62, 66, 129 S.E. 330, 331-32 (1925)). 
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Dyer bears the burden of proving by a preponderance of the 

evidence that one of the above exceptions applies to his case. 

See Sentara Leigh Hospital v. Nichols, 13 Va. App. 630, 636, 414 

S.E.2d 426, 430 (1992). The commission found that Dyer met this 

burden by proving that two exceptions to the "going and coming" 

rule –- the first and the third -- applied to the facts of his 

case. 

We find that the commission properly found that Dyer proved 

the third exception to the "going and coming" rule.1 In support 

of their contention that the third exception to the rule does 

not apply to Dyer's use of the demo, appellants cite Carlson. 

Their reliance on Carlson is misplaced. Carlson involved a 

soldier in the National Guard who died while travelling to his 

duty station at Fort A.P. Hill. See 26 Va. App. at 604, 496 

S.E.2d at 108. His dependents sued the Commonwealth's 

Department of Military Affairs under the Workers' Compensation 

Act, claiming that Carlson's travel and ensuing death arose out 

of and in the course of his employment with the National Guard. 

This Court held that none of the exceptions to the "going and 

coming" rule was applicable. The Court specifically addressed 

the third exception, noting that no evidence suggested that 

 1

 Because we find that Dyer met the third exception to the 

"going and coming" rule, we do not address the first exception. 

It is conceded that the second exception is inapplicable to the 

facts of this case, and we will not address the issue. 
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Carlson was engaged in any duty or task connected with his 

employment while en route to his post. See id. at 608, 496 

S.E.2d at 111. 

The evidence in this case establishes that Dyer, unlike the 

decedent in Carlson, was charged with at least three tasks by 

his employer in his travel to work: 1) he was required to get 

the car to Templeton’s premises each work day, because his use 

agreement with Templeton expressly required him to have the demo 

available to show to customers during business hours; 2) he was 

required to display the dealer emblem and sales stickers on the 

car; and 3) he was required to show the car to any potential 

buyers, even off Templeton’s premises. We thus find that Dyer 

was engaged in the performance of duties which benefited his 

employer as he drove the demo to work on the day of the 

accident. The third exception to the "going and coming" rule 

therefore applies. 

Dyer contends on cross-appeal that the commission erred in 

determining that he was able to work after December 30, 1997. 

"[T]he findings of fact made by the Workers' Compensation 

Commission will be upheld when supported by credible evidence." 

Commonwealth/Department of State Police v. Haga, 18 Va. App. 

162, 166, 442 S.E.2d 424, 426 (1994) (citing James v. Capitol 

Steel Construction Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 

(1989)). The commission agreed with the finding of the deputy 
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commissioner that Dyer was able to perform his pre-injury work 

beginning on December 31, 1997. The commission noted that 

Dyer's physician prohibited him from engaging in excessive

bending and lifting at that time and that the evidence showed 

Dyer’s employment required him to do only a modicum of bending 

and lifting. The commission therefore found that the degree of 

bending and lifting described in the evidence did not exceed 

Dyer's restrictions. Because we cannot say that the evidence 

upon which the commission relied lacked credibility, we affirm 

the commission’s finding that Dyer was able to work beginning on 

December 31, 1997. 

For the foregoing reasons, we affirm the decision of the 

commission. 

 Affirmed.