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Workers' Compensation--injury by accident_-coming and going rule
The Industrial Commission did not err in a workers' compensation case by concluding
that the deceased worker did not sustain a compensable injury by accident when she was
involved in an automobile accident on her way home after completion of her shift at work,
because: (1) the coming and going rule provides that an injury by accident occurring while an
employee travels to and from work is not one that arises out of or in the course of employment;
and (2) none of the exceptions to the coming and going rule apply in this case.
McGougan, Wright, Worley, Harper & Bullard, LLP, by Paul J.
Ekster and Dennis T. Worley, for plaintiff-appellants.
Lewis & Roberts, P.L.L.C., by John D. Elvers and Jeffrey A. Misenheimer, for defendant-appellees.
Donald Stanley and Cheryl Stanley (collectively plaintiffs),
husband and daughter of the deceased Patricia Stanley, appeal an
opinion and award of the North Carolina Industrial Commission (the
Commission) filed 26 November 2002 denying their workers'
In its 26 November 2002 opinion and award the Commission found:
1. Patricia Stanley, deceased, began working for . . . defendant-employer [(Burns International Security Services)] on February 17, 1996. The deceased worked as a Site Captain and Security Guard at BricklandingPlantation that is located outside of Shallotte, North Carolina. The deceased worked approximately 40 hours per week and worked a shift from 4:00 p.m. until midnight. The deceased lived in Nakina, North Carolina . . . approximately 30 miles from Bricklanding.
2. On September 16, 1999, Hurricane Floyd passed through the area and resulted in flooding to the area. . . . [D]efendant- employer's site was closed on September 16, 1999, due to the hurricane. On September 17, 1999, . . . defendant-employer was able to get officers back onsite for the 4:00 p.m. through midnight shift. . . . [D]efendant-employer spoke with the deceased on that day and told her that it was not necessary to come into work because the other officers . . . could cover the site until the water receded and the roads were safe for travel.
3. On Monday, September 20, 1999, the deceased called . . . defendant-employer to report that she still could not get to work. Ms. Dawn Greenburg again told the deceased that it was not necessary for her to come into work until it was safe to travel.
4. On Monday, September 20 [sic], 1999, the deceased called . . . defendant-employer and told . . . defendant-employer that she was coming to work that day. The deceased worked September 21, September 22, September 23, and September 24, 1999. The deceased worked eight-hour shifts on each of those dates.
5. On September 25 [sic], 1999, the deceased traveled to work and worked her shift from 4:00 p.m. until midnight. At the conclusion of her shift, the deceased was on her way home when she was involved in an automobile accident that resulted in her death [on 25 September 1999].
6. The deceased was driving her personal vehicle at the time of her death. . . . [D]efendant-employer did not provide transportation to and from work to the deceased employee. . . . [D]efendant-employer did not pay the deceased for travel time to and from work. . . . [D]efendant-employer also did not reimburse the deceased for mileage for travel to and from work.
7. At the hearing, the deceased's daughter alleged that the deceased was required to come to work on September 24, 1999, or else risk losing her job. This allegation was directly contradicted by the testimony of Ms. Dawn Greenburg and Mr. Clayton Collins. Additionally, this allegation further lacks credibility considering the fact that the deceased worked four complete shifts on September 21, 22, 23, and 24, 1999, prior to her untimely death. Both Ms. Greenburg and Mr. Collins testified that [the deceased] was a good employee and that she would never have been given any type of ultimatum as alleged by the deceased's daughter.
Based on these findings, the Commission concluded that because none of the exceptions to the 'going and coming rule' appl[ied] in this case, the deceased's automobile accident did not arise out of and was not in the course and scope of her employment with . . . defendant-employer and was therefore not compensable.
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