Recently, we took a look at claims filed on behalf of injured workers in which the employer defended the claims by asserting that they were not compensable because the injuries did not arise out of or in the course of employment. A recent opinion from the Virginia Workers Compensation Commission (VWCC) offers another twist on those requirements. Unlike our previous example where the activity occurred during normal work hours and on the employer’s premises, this case involved a vehicle crash which happened before the claimant was due to start his workday and on the streets, not on the employer’s premises. See, Coby Kelly v. County of Henrico, JCN VA00001046469 (Dec. 16, 2016).
Claimant was a detective with the County police. Before he went on duty, he was driving to a County training facility in his official unmarked vehicle to get in a workout. The claimant had unlimited access to the facility and used it with frequency. Use of the claimant’s take-home vehicle was partly based on his ability to act in an official capacity even though off-duty. He was required at all times to be appropriately attired, have his official police equipment, including firearm, and to monitor the radio whenever he drove the vehicle. The County strongly encouraged a degree of fitness in its officers which it tested periodically. Claimant had passed a fitness test as part of the qualifications for his present rank and had to repeat the testing periodically to retain his rank. The County valued fitness in its officers enough to offer them the chance to train 4 hours/week while on-duty. Claimant did not make use of that opportunity because he found it more convenient to train while off-duty.
Accidents are in the course of employment when they occur within the period of employment, at a place where claimant may be, while he engaged in his job duties, “or something incidental thereto.” Bradshaw v. Aronovitch, 170 Va. 329,335, 196 S.E.2d 684, 686 (1938). Injuries resulting from social or recreational activities are not generally compensable; however, the employer can bring such injuries into the employment realm by expressly or impliedly requiring participation or making the activity part of the employment. Kelly, supra.
Noting that this case was one of first impression, the VWCC held for the claimant. Citing the Court of Appeals (VCA), “The dispositive question is whether the …recreational function Is so closely associated with the employment to be considered an incident of it.” Kim v. Sportswear,10 Va. App. 460, 465, 393 S.E.2d 418, 421 (1990). Based on the totality of the circumstances, the VWCC found that the County strongly encouraged fitness in its police, claimant was required to pass fitness testing to retain his rank, the gym was a County facility, while en route to the gym, claimant monitored his police radio, and was expected to respond to calls unless instructed otherwise. Most significantly, the County had established a workout program that officers could follow while on-duty. The majority opinion stated that it was “viscerally troubling” that claimant elected not to use his work hours to exercise, but admitted that it could find no logical reason to conclude the injury was compensable in cases where the officer made use of the program and not in cases where the officer did not. Therefore, the VWCC affirmed the opinion below that claimant was injured while participating in an activity which the employer impliedly required and had made the activity part of claimants services so as to bring it within the orbit of the employment.
 This reference to visceral distress prompted Commissioner Marshall to file a separate concurrence to state that his viscera was not troubled by these facts.