COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

JANINE NANNETTE CARLSON, ET AL. 

 OPINION BY 

v. Record No. 1626-97-2 JUDGE JAMES W. BENTON, JR. 

 FEBRUARY 17, 1998 

DEPARTMENT OF MILITARY AFFAIRS/ 

 COMMONWEALTH OF VIRGINIA 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Benjamin H. Woodbridge, Jr. (Woodbridge & 

Reamy, on brief), for appellants. 

 Ingrid E. Olson, Assistant Attorney General 

(Richard Cullen, Attorney General; Gregory 

Lucyk, Senior Assistant Attorney General, on 

brief), for appellee. 

 Timothy Eric Carlson, a member of the Virginia National 

Guard, was killed in a car accident while en route to his base 

for training. His widow, Janine Carlson, appeals from a Workers' 

Compensation Commission decision denying an award of death 

benefits and funeral expenses. The commission ruled that 

Carlson's death did not arise out of, or in the course of, his 

employment because Carlson's death occurred while he was going to 

work and did not fall within any of the well recognized 

exceptions to the "coming and going" rule. We affirm the 

decision. 

 I. 

 On the weekend of December 4 and 5, 1993, Carlson was on 

"inactive duty training" with the Virginia National Guard at Fort 

A.P. Hill in Bowling Green, Virginia. Carlson's widow testified 
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that Carlson reported for duty on Saturday morning, December 4, 

and that she met him later that afternoon at Fort A.P. Hill to 

attend a Christmas dinner sponsored by the National Guard. When 

the dinner ended at 8:00 p.m., the Carlsons left together and 

returned to their home in Fredericksburg. 

 Carlson left home to return to Fort A.P. Hill at 7:00 a.m. 

Sunday morning with Randall Lincoln, who was also a member of the 

National Guard. Lincoln was driving southbound on Route 2 in 

Caroline County and was traveling at a high rate of speed in 

rainy weather when he lost control of the car and collided with 

another vehicle. Carlson died in the accident. 

 Lieutenant Colonel Jeffrey Allen testified that "according 

to the training schedule, . . . [Carlson] was to report at 7:30 

in the morning on Saturday, be dismissed later that afternoon at 

approximately 4:30, and to return home, and he was to come back 

on Sunday at 7:30 in the morning, and be released at about 4:30 

in the afternoon on Sunday." Allen also testified that the 

weekend drill was made up of four four-hour blocks of time called 

unit training activity periods. Carlson completed two unit 

training activity periods on Saturday. According to a Statement 

of Medical Examination and Duty Status, which was stipulated as 

evidence, Carlson's inactive duty training began at 8:00 a.m. on 

Saturday, December 4 and was to end at 3:30 p.m. on Sunday, 

December 5. 

 Allen further testified that the National Guard neither 
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reimbursed Carlson for mileage between his home and Fort A.P. 

Hill, nor provided Carlson with transportation between his home 

and Fort A.P. Hill. Allen testified that Carlson was not tasked 

with any work assignment when he travelled between his home and 

Fort A.P. Hill and that Carlson "was simply coming to work" on 

Sunday when the accident occurred. Allen also testified that 

members of the National Guard generally would not spend the night 

at Fort A.P. Hill. They would be released by the commanding 

officer to return home and would report for duty the next 

morning. 

 Denying an award, the commission ruled that Globe Indemnity 

Co. v. Forrest, 165 Va. 267, 182 S.E. 215 (1935), did not control 

this fact situation and made the following findings: 

 [Carlson] was attending a weekend drill which 

consisted of four, four-hour training 

periods. He was free to leave the post after 

the completion of the second four-hour 

training period on Saturday, December 4, 

1993, as noted above. It was not necessary 

that [Carlson] obtain a pass to leave the 

post, as was the case with [the guardsman in 

Forrest]. While his employment status as a 

guardsman may have been of a continuing 

nature, as would have been the situation with 

normal civilian work, his dependents must 

still show that he was charged with some duty 

of his employment at the time of his injury, 

or that this case falls within one of the 

exceptions to the "going and coming" rule, as 

noted by the Deputy Commissioner. 

 II. 

 Carlson's widow argues that Forrest supports her entitlement 

to an award. Although the Department of Military Affairs 
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concedes that Carlson was an employee of the National Guard at 

the time of his death, see Code § 65.2-101, it argues that 

Carlson's widow did not meet her burden of proving that Carlson's 

death arose out of and in the course of his employment with the 

National Guard. 

 A claimant for death benefits under Code § 65.2-512 must 

prove that the employee's death arose out of and in the course of 

the employment. See Baggett Transportation Co. v. Dillon, 219 

Va. 633, 636-37, 248 S.E.2d 819, 821 (1978). 

 The expressions "arising out of" and "in 

the course of" are used conjunctively and are 

not synonymous. Both conditions must be 

present before compensation can be awarded. 

 The words "arising out of" have been 

construed . . . to refer to the origin or 

cause of the injury, and the words "in the 

course of" refer to the time, place and 

circumstances under which the accident 

occurred. 

 [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. 

 . . . [A]n injury "arises 'out of' the 

employment, when there is apparent to the 

rational mind upon consideration of all the 

circumstances, a causal connection between 

the conditions under which the work is 

required to be performed and the resulting 

injury. Under this test, if the injury can 

be seen to have followed as a natural 

incident of the work and to have been 

contemplated by a reasonable person familiar 

with the whole situation as a result of the 

exposure occasioned by the nature of the 

employment, then it arises 'out of' the 

employment. But it excludes an injury which 

cannot fairly be traced to the employment as 
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a contributing proximate cause and which 

comes from a hazard to which the workmen 

would have been equally exposed apart from 

the employment. The causative danger must be 

peculiar to the work and not common to the 

neighborhood. It must be incidental to the 

character of the business and not independent 

of the relation of master and servant. It 

need not have been foreseen or expected, but 

after the event it must appear to have had 

its origin in a risk connected with the 

employment, and to have flowed from that 

source as a rational consequence." 

 Thus it clearly appears that in order 

for an injury to be compensable on the ground 

that it arose out of and in the course of 

employment it is not enough to show merely 

that the accident occurred during the period 

of the employment and while the employee was 

about his master's business. It must also be 

shown that the accident occurred at a place 

where, from the nature of the work, the 

employee was reasonably expected to be. 

Conner v. Bragg, 203 Va. 204, 208-09, 123 S.E.2d 393, 396-97 

(1962). "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." Kendrick v. Nationwide Homes, Inc., 4 Va. 

App. 189, 190, 355 S.E.2d 347, 347 (1987). 

 As a general rule, an injury or death is not compensable if 

it occurs while an employee is traveling to or from work. See

Harbin v. Jamestown Village Joint Venture, 16 Va. App. 190, 193, 

428 S.E.2d 754, 756 (1993); Sentara Leigh Hosp. v. Nichols, 13 

Va. App. 630, 636, 414 S.E.2d 426, 429 (1992). This rule is 

premised upon the principle that an employee traveling to or from 

his workplace "is not engaged in performing any service growing 

out of and incidental to his employment." Kendrick, 4 Va. App. 
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at 190, 355 S.E.2d at 347. However, several exceptions exist to 

the "coming and going" rule. Id. The following three exceptions 

are generally recognized: "(1) where the means of transportation 

used to go to and from work is provided by the employer or the 

employee's travel time is paid for or included in wages; (2) 

where the way used is the sole means of ingress and egress or is 

constructed by the employer; and (3) where the employee is 

charged with some duty or task connected to his employment while 

on his way to or from work." Sentara, 13 Va. App. at 636, 414 

S.E.2d at 429. The burden of proof is upon the dependents of the 

deceased employee to establish by a preponderance of the evidence 

that one of these exceptions applies. See id. at 636, 414 S.E.2d 

at 430. 

 The evidence proved that Carlson was traveling from his home 

to his duty station at Fort A.P. Hill when he was killed. The 

evidence in this case readily eliminates the first and second 

exceptions to the "coming and going" rule. First, the 

uncontradicted evidence proved that Carlson was not reimbursed by 

the Department for travel en route to training. Allen testified 

that Carlson was not reimbursed by the Department for mileage and 

that transportation was not provided by the National Guard. 

Second, Lincoln and Carlson were traveling on Route 2 in Caroline 

County at the time of the accident. That route is a public 

highway, was not constructed by the Department, and was not the 

sole means of ingress and egress to Fort A.P. Hill. 
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 As to the third exception, the record contains testimony of 

Lieutenant Colonel Allen that Carlson was not engaged in any duty 

or task connected with his employment while en route to Fort A.P. 

Hill. After Carlson completed his two unit training activity 

periods on Saturday, he was released to go home and was at 

liberty to do as he pleased until he reported to base on Sunday 

morning. Carlson's only responsibility was to return to Fort 

A.P. Hill on Sunday at 7:30 a.m. His obligation to report to his 

duty station does not equate to having a responsibility to the 

National Guard while he was en route to Fort A.P. Hill. 

 Nonetheless, Carlson's widow argues that this case is 

governed by Forrest and that Carlson's duty status is the 

dispositive factor. We disagree. The commission correctly ruled 

that the holding in Forrest is not dispositive of the issue in 

this case. 

 Forrest was an enlisted member of the Virginia National 

Guard attending an annual two week encampment at Virginia Beach 

in August 1933. 165 Va. at 268, 182 S.E. at 215. Forrest left 

the military camp at 7:30 p.m. on a pass and visited places of 

amusement in the town of Virginia Beach. At 10:00 p.m., a 

lieutenant in the military police ordered Forrest to take two 

intoxicated National Guard soldiers back to the military camp. 

While Forrest was returning to the military camp with the 

intoxicated National Guard soldiers, Forrest and one of the 

soldiers sat on a railroad track. When a train approached, 
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Forrest attempted to move the intoxicated soldier from the tracks 

and was injured by the train. Id. at 269, 182 S.E. at 216. The 

commission awarded Forrest benefits under the Workmen's 

Compensation Act, and the employer and its insurer appealed. 

 The Supreme Court stated the issue in Forrest as follows: 

 The contention of the appellant, who is the 

insurance carrier is that the accident did 

not arise out of and in the course of 

[Forrest's] employment, but that it was the 

result of misconduct on the part of [Forrest] 

which bars him from the allowance of 

compensation. . . . 

 As to the first contention, the carrier 

urges that, when [Forrest] was given a pass

to leave the military reservation for 

Virginia Beach and proceeded to avail himself 

of its privileges, there was a cessation of 

the relation of master and servant between 

himself and the State of Virginia, his 

employer.

165 Va. at 270, 182 S.E. at 216 (emphasis added). 

 We believe the Supreme Court's description of the issue and 

argument of the insurance carrier manifestly established that the 

Forrest decision primarily decided whether Forrest was an 

employee of the National Guard when he was injured. Even though 

in 1935, when Forrest was decided, the Act stated that "the term 

'employee' shall include the officers and members of the national 

guard," Code § 1887(2)(a) (1930), that provision of the Act 

merely brought the National Guard within the purview of the Act 

and did not further delimit when the period of employment began 

and ended. 

 The Forrest decision clearly held that although Forest was 
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on a pass for recreational leave, the employment relationship 

still existed because Forrest was on active duty. 165 Va. at 

270, 182 S.E. at 216. The Court rejected the argument that 

Forrest's release on a pass "constituted a severance of the 

relation of master and servant" between the National Guard and 

Forrest. Id. The Court emphasized the continuing nature of 

Forrest's employment and held that "'the relationship of master 

and servant was continuous from the moment when Forrest 

reported . . . in compliance with the orders from his employer, 

the State of Virginia, until he was released from active 

employment by the termination of said orders.'" Id. at 271, 182 

S.E. at 216 (citation omitted). This and other pertinent 

discussions in Forrest are germane solely to the insurer's 

argument concerning Forrest's employment relationship. 

 We concede, as we must, that one reading of Forrest suggests 

that because the Court affirmed the award of benefits, the Court 

also necessarily decided that the event that injured Forrest also 

arose out of Forrest's employment. Although the Forrest opinion 

notes that "it is unnecessary to discuss the effect of the 

[lieutenant's] order" that Forrest was implementing when Forrest 

was injured, the opinion points out "Forrest's immediate 

obedience to the command of his superior officer but emphasizes 

the continuity of the relationship of master and servant." 165 

Va. at 273, 182 S.E. at 217. Indeed, in a later decision, see

Norfolk & Washington Steamboat Co. v. Holladay, 174 Va. 152, 5 
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S.E.2d 486 (1939), the Supreme Court observed "that [Forrest] 

turned upon whether there had been a temporary cessation of the 

relationship of master and servant." Holladay, 174 Va. at 161, 5 

S.E.2d at 490. Significantly, however, the Court in Holladay

reiterated the evidence that the Forrest opinion declared 

unnecessary, viz. that Forrest "had been instructed by his 

superior officer to assist in returning to camp" the intoxicated 

soldier. Holladay, 174 Va. at 161, 5 S.E.2d at 490. We 

conclude, therefore, that the Supreme Court tacitly recognized in 

Holladay that the evidence in Forrest proved that Forrest was 

acting under orders and, thus, was engaged in an activity that 

arose out of his employment. In any event, we do not read 

Forrest to hold that every injurious event suffered by a member 

of the National Guard arises out of and in the course of 

employment whenever the member is "on duty." 

 Credible evidence in the record supports the commission's 

finding that Carlson was not engaged in an activity that arose 

out of his employment. First, the evidence proved that Carlson 

was on "inactive" duty training and not on "active" duty 

training. See Code § 44-41; Code § 44-83. Lieutenant Colonel 

Allen testified that "according to the training schedule . . . 

[Carlson] was to report at 7:30 in the morning on Saturday, be 

dismissed . . . at approximately 4:30, and to return home, 

and . . . come back on Sunday at approximately 7:30 in the 

morning, and be released at about 4:30 in the afternoon on 
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Sunday." He also testified as follows: 

 Q. [B]ut the records reveal that he was 

activated for duty that weekend -- I mean, 

this was a weekend drill that required his 

presence at A.P. Hill? 

 A. That's correct. And . . . a weekend 

drill typically is made up of what we call 

four, four hour blocks of time which we refer 

to as unit training activity periods, or 

U.T.A.'s. So there would have been two 

U.T.A.'s on Saturday performed, or four -- 

two four hour blocks of, of training, . . . . 

Thus, Carlson was not in uninterrupted, continuous service for 

the two-day period of "inactive" duty training. 

 Second, Allen testified that Carlson was not reimbursed for 

mileage to and from his home and Fort A.P. Hill, that the 

National Guard did not provide for Carlson's transportation 

between his home and Fort A.P. Hill, and that Carlson was not 

tasked with any National Guard duty while going from his home to 

Fort A.P. Hill. 

 Carlson's duty orders clearly establish that he was an 

employee of the National Guard, a prerequisite for coverage under 

the Act. See Code § 65.2-101; Forrest, 165 Va. at 271, 182 S.E. 

at 216; Cotman v. Green, 4 Va. App. 256, 258, 356 S.E.2d 447, 448 

(1987). However, the evidence supports the commission's finding 

that Carlson was not performing any task of his employment when 

he was travelling from his home to Fort A.P. Hill. Accordingly, 

we hold that Carlson's widow has not carried her burden of 

proving that her husband's death arose out of and in the course 

of his employment with the National Guard. For the reasons 
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stated, the decision of the commission denying benefits is 

affirmed. 

 Affirmed.