Appeal by defendants from opinion and award entered 28 June
2004 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 12 May 2005.
CHARLES G. MONNETT, III & ASSOCIATES, by Craig O. Asbill, for
plaintiff-appellee.
JONES, HEWSON & WOOLARD, by Lawrence J. Goldman, for
defendants-appellants.
TIMMONS-GOODSON, Judge.
Caldwell Memorial Hospital (“Caldwell”) and Allied Claims
Administration (“Allied”) (collectively, “defendants”) appeal an
opinion and award of the North Carolina Industrial Commission
awarding Joanne Munoz (“plaintiff”) compensation for injuries
resulting from an automobile collision. For the reasons discussed
herein, we affirm the opinion and award.
The facts and procedural history pertinent to the instant
appeal are as follows: On 5 January 2001, plaintiff began work for
Caldwell as a home health care nurse. Plaintiff's position with
Caldwell required her to travel each day to an assigned patient's
residence to provide care for the patient. Plaintiff provided care
for only one patient per day, and her hourly wages began when she
reached the patient's home. As part of plaintiff's compensation,
Caldwell paid plaintiff excess travel mileage if her patient's
residence was more than sixty miles round trip from her own
residence.
On 8 January 2001, plaintiff was assigned to care for a
patient in Lenoir, North Carolina. While on her way to the
patient's residence, plaintiff decided to drop off her time slips
at Caldwell's office, which was also located in Lenoir. As
plaintiff drove to Caldwell's office, she was involved in an
automobile collision and suffered injuries to her head and back.
Caldwell denied plaintiff's subsequent worker's compensation claim,
contending that the collision did not arise out of and in thecourse of plaintiff's employment at Caldwell.
On 6 November 2002, the case was heard by North Carolina
Industrial Commission Deputy Commissioner Edward Garner, Jr. (“the
Deputy Commissioner”). On 10 March 2003, the Deputy Commissioner
entered an opinion and award concluding that plaintiff's injuries
arose out of and in the course of her employment at Caldwell.
Based upon this conclusion, the Deputy Commissioner awarded
plaintiff $271.46 per week in compensation.
Defendants appealed the Deputy Commissioner's award to a full
panel of the North Carolina Industrial Commission (“the Full
Commission”). On 28 June 2004, the Full Commission entered an
opinion and award affirming the Deputy Commissioner's prior award.
The Full Commission made the following pertinent conclusions of
law:
5. In this case, the “traveling salesman”
exception applies because plaintiff was
injured while en route to visit a patient
pursuant to a job with no fixed hours or place
of work. Plaintiff's job required that she
report directly from her home to the patient's
home for which she would be caring each day
rather than beginning her day at her
employer's fixed place of business.
Plaintiff's job required that she visit with
only one patient per day, but during the four
days that plaintiff had been employed, she had
visited three different patients at three
different residences, and worked varying hours
each day. . . . [U]nder these circumstances,
the “traveling salesman” exception would apply
to each day upon leaving her house to travel
to her patient's home because plaintiff did
not have a fixed work place or fixed work
hours.
6. Plaintiff's employment was of a nature
that failed to establish a fixed work place or
fixed work hours, and plaintiff's mereintention to drop her pay slips off while
traveling the route to her patient's home that
would take her by her employer's place of
business on January 8, 2001, did not
constitute a “distinct” and “total” departure
on a personal errand. Accordingly, the
traumatic brain injury and other injuries
resulting from plaintiff's automobile accident
on January 8, 2001, are compensable as they
arose out of and in the course of her
employment pursuant to the “traveling
salesman” exception to the “going and coming”
rule.
. . . .
8. Plaintiff's injuries sustained while
traveling to work on January 8, 2001, are
compensable pursuant to the “contractual duty”
exception because [Caldwell] was under an
active contractual duty to reimburse plaintiff
for her mileage at the time of her automobile
collision. Pursuant to this mileage plan,
plaintiff was paid mileage for the amount of
miles she was required to travel in excess of
60 miles roundtrip to a single patient's home.
Thus, the “contractual duty” exception would
apply to a home health care nurse visiting a
single patient over the course of a day at the
time that nurse traveled beyond a 30-mile
radius of her listed home address.
9. Plaintiff's mere intent to drop her pay
slip off, as required, while traveling the
route to her patient's home that would take
her by her employer's place of business does
not constitute a “distinct” or “total”
departure on a personal errand.
Based upon these conclusions of law, the Full Commission awarded
plaintiff $271.46 per week in compensation. Defendants appeal.
The issues on appeal are whether the Full Commission erred by:
(I) concluding that plaintiff's injury arose out of and in the
course of her employment; and (II) determining plaintiff's average
weekly wage. [1] Defendants first argue that the Full Commission erred by
concluding that plaintiff's injuries arose out of and in the course
of her employment. Defendants assert that because the collision
giving rise to plaintiff's injuries occurred while plaintiff was
driving her personal vehicle to work, plaintiff's injuries are not
compensable. We disagree.
This Court's review of a decision of the Full Commission is
limited to determining whether competent evidence supports the Full
Commission's findings of fact, and whether the Full Commission's
findings of fact support its conclusions of law.
Adams v. AVX
Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998).
“Whether an
injury arises out of and in the course of a claimant's employment
is a mixed question of fact and law[.]”
Creel v. Town of Dover,
126 N.C. App. 547, 552, 486 S.E.2d 478, 481 (1997).
The “going and coming rule” states that “injuries sustained by
an employee while going to or from work are not ordinarily
compensable” because the injuries do not arise out of or in the
course of employment.
Bass v. Mecklenburg County, 258 N.C. 226,
231-32, 128 S.E.2d 570, 574 (1962) (citations omitted);
Hunt v.
Tender Loving Care Home Care Agency, Inc., 153 N.C. App. 266, 269,
569 S.E.2d 675, 678,
disc. review denied, 356 N.C. 436, 572 S.E.2d
784 (2002). The rationale for this rule is that “the risk of
injury while traveling to and from work is one common to the public
at large,”
Creel, 126 N.C. App. at 555, 486 S.E.2d at 482, and
“[a]n employee is not engaged in the business of the employer while
driving his or her personal vehicle to the place of work or whileleaving the place of employment to go home.”
Hunt, 153 N.C. App.
at 269, 569 S.E.2d at 678. Nevertheless, the going and coming rule
is subject to exceptions. Such exceptions have been recognized
where:
(1) an employee is going to or coming from
work but is on the employer's premises when
the accident occurs (premises exception); (2)
the employee is acting in the course of his
employment and in the performance of some
duty, errand, or mission thereto (special
errands exception); (3) an employee has no
definite time and place of employment,
requiring her to make a journey to perform a
service on behalf of the employer (traveling
salesman exception); or (4) an employer
contractually provides transportation or
allowances to cover the cost of transportation
(contractual duty exception).
Stanley v. Burns Int'l Sec. Servs., 161 N.C. App. 722, 725, 589
S.E.2d 176, 178 (2003) (citations omitted).
In the instant case, the Full Commission determined that both
the traveling salesman exception and the contractual duty exception
apply. Defendants contend that the traveling salesman exception
does not apply because on the date of the collision, plaintiff had
a fixed job location at the residence of her patient. In support
of this contention, defendants cite this Court's refusal to apply
the traveling salesman exception to the facts in
Hunt. However, we
conclude that
Hunt is distinguishable from the instant case.
In
Hunt, we noted that “[i]f travel is contemplated as part of
the employment, an injury from an accident during travel is
compensable.” 153 N.C. App. at 269, 569 S.E.2d at 678. Thus,
under the traveling salesman exception, “employees with no definite
time and place of employment . . . are within the course of theiremployment when making a journey to perform a service on behalf of
their employer.”
Creel, 126 N.C. App. at 556-57, 486 S.E.2d at 483
(citations omitted). “The applicability of the 'traveling
salesman' rule to the facts [of a case] depends upon the
determination of whether [the] plaintiff had fixed job hours and a
fixed job location.”
Hunt, 153 N.C. App. at 270, 569 S.E.2d at
678.
Like the plaintiff in the instant case, the plaintiff in
Hunt
was a nursing aide whose work required her to travel to a patient's
residence rather than report to her employer's premises. However,
unlike the plaintiff in the instant case, the plaintiff in
Hunt had
worked for her employer for “over two years” and had worked
“solely” with the same patient at the same address.
Id. at 270,
569 S.E.2d at 678-79. Based upon these facts, this Court
determined in
Hunt that the plaintiff's “employment did not require
attending to several patients, at different locations with no fixed
work location.”
Id. at 270, 569 S.E.2d at 679.
In the instant case, plaintiff had only been employed at
Caldwell for four days at the time of the collision, and she had
been assigned to three different patients at different locations on
each date of her employment. Although the parties stipulated that
“plaintiff . . . would visit only one patient per day[,]” the
parties also stipulated that “[s]ome of [Caldwell's] home health
care nurses were limited to a single patient and some would see
multiple patients[.]” The parties further stipulated that
plaintiff's wages would “begin upon reaching a patient'sresidence.” Thus, unlike in
Hunt, plaintiff was not assigned
“solely” to the patient she was en route to assist on the date of
her injury. Instead, the record supports the Full Commission's
determination that plaintiff's employment with Caldwell involved
multiple patients, and that plaintiff had “no fixed hours or place
of work.” Therefore, we conclude that the Full Commission did not
err by determining that the traveling salesman exception applies to
the instant case.
[2] Defendants also contend that the Full Commission erred by
determining that the contractual duty exception applies to the
instant case. In
Hunt, this Court stated that “where an employer
provides transportation or allowances to cover the cost of
transportation, injuries occurring while going to or returning from
work are compensable” under the contractual duty exception.
Id.
For a claim to fall within this exception, the
transportation must be provided as a matter of
right as a result of the employment contract.
If the transportation is provided
permissively, gratuitously, or as an
accommodation, the employee is not within the
course of employment while in transit. Where
the cost of transporting employees to and from
work is made an incident to the contract of
employment, compensation benefits have been
allowed.
Id. (citations omitted).
In the instant case, plaintiff's employment with Caldwell
included a mileage compensation plan “for approved patient care,
education, and business miles.” The plan provided that “[f]or
those having only one patient [per day], mileage will be paid if
greater than 60 miles roundtrip from their listed home address.” In
Hunt, we rejected the plaintiff's claim that her accident was
covered under a similar compensation policy, noting that “[t]he
parties stipulated that [the] plaintiff was not compensated for her
travel because she did not travel over” the relevant amount of
mileage necessary for compensation under the policy.
Id. at 271,
569 S.E.2d at 679. However, in the instant case, the parties
stipulated that “[t]he distance between the residence of []
plaintiff . . . and the residence of the patient she was visiting
on January 8, 2001, was in excess of 60 miles round trip[,]” and
the parties also stipulated that plaintiff “would be reimbursed as
per [the mileage compensation plan] for mileage to a patient's
residence in Lenoir.” The Full Commission noted these stipulations
prior to determining that the contractual duty exception applies to
the instant case. We conclude that the Full Commission did not err
in its determination.
[3] Defendants maintain that neither the traveling salesman
nor the contractual duty exceptions should apply to plaintiff's
claim because at the time of the collision, plaintiff was driving
to Caldwell's office rather than her patient's residence. We
disagree.
This Court has noted that the traveling salesman exception
does not apply where the evidence demonstrates a distinct departure
by the employee on a personal errand.
Dunn v. Marconi
Communications, Inc., 161 N.C. App. 606, 612, 589 S.E.2d 150, 155
(2003). Similarly, we have also noted that “the 'contractual duty'
exception can be negated if the Commission finds that the employee,while using an employer-provided vehicle, abandoned his
employment-related purpose for using the vehicle.”
Id. However,
our courts have further recognized that workers' compensation rules
are subject to “liberal construction,” and therefore, “'[w]here any
reasonable relationship to employment exists, or employment is a
contributory cause, the court is justified in upholding the award
as “arising out of employment.”'”
Kiger v. Service Co., 260 N.C.
760, 762, 133 S.E.2d 702, 704 (1963) (quoting
Allred v. Allred-
Gardner, Inc., 253 N.C. 554, 557, 117 S.E.2d 476, 479 (1960)).
In the instant case, defendants contend that plaintiff's route
the date of the collision was not the most direct to her patient's
residence, and that at the time of the collision, plaintiff had
“doubled back” to drop off her time slips. However, we note that
in
Creel, this Court agreed that “'[a]n identifiable deviation from
a business trip for personal reasons takes the employee out of the
course of his employment until he returns to the route of the
business trip, unless the deviation is so small as to be regarded
as insubstantial.'” 126 N.C. App. at 557, 486 S.E.2d at 483
(quoting 1 Arthur Larson & Lex K. Larson,
Larson's Workmen's
Compensation Law § 19.00, at 4-352 (1996)). Moreover, in
Smith v.
Central Transport, 51 N.C. App. 316, 321, 276 S.E.2d 751, 754
(1981), we held that an employee's injury from an automobile
collision arose out of and in the course of his employment, and was
not incurred during a distinct departure, even though the collision
occurred “approximately four and a half hours after [the employee]
had delivered his load of chemicals, and while he was . . . headingin a direction which would have been opposite to the most direct
route back” to his employer's business. In the instant case, we
conclude that even if plaintiff deviated from the most direct route
of her travel in order to drop off her time slips, this deviation
does not rise to the level of a distinct departure. Plaintiff
stipulated that “[s]he was on her way to see a patient” when the
collision occurred, but because “[s]he had extra time . . . she
decided to drop off [her] time slips at” Caldwell's office.
Plaintiff also stipulated that she was required to drop her time
slips off at Caldwell's office by 5:00 p.m. on Mondays, including
Monday, 8 January 2001, the date of the collision. Although we
note that plaintiff would not be reimbursed for the mileage she
incurred in driving to drop off her time slips, we also note that
Caldwell's office was located in the same town as plaintiff's
patient's residence. In light of the foregoing, we conclude that
the Full Commission correctly determined that plaintiff's “mere
intention to drop her pay slips off while traveling the route to
her patient's home” did not prevent application of the traveling
salesman and contractual duty exceptions. Accordingly, we overrule
defendants' first argument.
[4] Defendants' final argument is that the trial court erred
by determining plaintiff's average weekly wage. N.C. Gen. Stat.
97-2(5) (2003) governs the determination of an injured worker's
average weekly wage, and it provides in pertinent part as follows:
Average Weekly Wages. -- “Average weekly
wages” shall mean the earnings of the injured
employee in the employment in which he was
working at the time of the injury during theperiod of 52 weeks immediately preceding the
date of the injury . . . . Where the
employment prior to the injury extended over a
period of fewer than 52 weeks, the method of
dividing the earnings during that period by
the number of weeks and parts thereof during
which the employee earned wages shall be
followed; provided, results fair and just to
both parties will be thereby obtained. Where,
by reason of a shortness of time during which
the employee has been in the employment of his
employer or the casual nature or terms of his
employment, it is impractical to compute the
average weekly wages as above defined, regard
shall be had to the average weekly amount
which during the 52 weeks previous to the
injury was being earned by a person of the
same grade and character employed in the same
class of employment in the same locality or
community.
But where for exceptional reasons the
foregoing would be unfair, either to the
employer or employee, such other method of
computing average weekly wages may be resorted
to as will most nearly approximate the amount
which the injured employee would be earning
were it not for the injury.
In the instant case, prior to the hearing, the parties
stipulated in pertinent part as follows:
3. With respect to average weekly wage,
during the year 2000, [Caldwell's] PRN (as
needed) LPNs worked:
a. If each week is averaged, the total
average hours per week is 23.94.
b. With a weighted average (weeks with
10 LPNs working would receive twice
the weight as weeks with 5 LPNs
working), the average hours per week
is 22.76.
Based in part upon this stipulation, the Full Commission concluded
in pertinent part as follows:
11. In this case, plaintiff's average weekly
wage is best determined by employing anothermethod as set forth in N.C. Gen. Stat. § 97-
2(5) because plaintiff's employment prior to
her injury extended over a period of less than
52 weeks. Accordingly, plaintiff's average
weekly wage shall be that of a similar
situated employee who has been employed by
[Caldwell] for more than one year. Since the
parties stipulated that other LPNs worked an
average of 23.94 hours per week, at $17.00 per
hour for 23.94 hours per week, plaintiff's
average weekly wages are $406.98, which yields
a compensation rate of $271.46 per week.
Defendants contend that the Full Commission should have used
the weighted average hours detailed in the stipulation rather than
the straight average. However, notwithstanding their assertion
that the weighted average “more accurately reflects expected hours
of a PRN LPN,” defendants cite no authority in support of their
argument and fail to demonstrate why the weighted average is
preferred. As discussed above, our review on appeal of an opinion
and award of the Full Commission is limited to determining whether
competent evidence supports the Full Commission's findings of fact,
and whether those findings of fact support the Full Commission's
conclusions of law.
Adams, 349 N.C. at 681, 509 S.E.2d at 414. In
the instant case, the Full Commission's conclusion of law indicates
that it based its decision to use the straight average upon the
stipulation agreed to by both parties. Thus, in light of the
foregoing, we conclude that the Full Commission did not err in its
determination regarding plaintiff's average weekly wage.
Therefore, we overrule defendants' final argument, and accordingly,
we affirm the Full Commission's opinion and award.
Affirmed.
Judges McCULLOUGH and STEELMAN concur.
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