RUDOLPH BROWN, JR.,
Employee,
Plaintiff,
v
.
North Carolina
Industrial Commission
NORTH CAROLINA SPECIAL I.C. No. 200450
CARE CENTER,
Employer,
and
KEY RISK MANAGEMENT SERVICES,
INC.,
Carrier,
Defendant.
Browne, Flebotte, Wilson, Horn & Webb, by Martin J. Horn and
Greta Katz, for plaintiff appellant.
Attorney General Roy Cooper, by Assistant Attorney General,
Patrick S. Wooten, for North Carolina Special Care Center,
defendant appellee.
McCULLOUGH, Judge.
Plaintiff Rudolph Brown appeals from the opinion and award of
the North Carolina Industrial Commission and its denial of his
motions to reconsider and to allow additional evidence.
The Full Commission made the following findings of fact: 1. Plaintiff was employed as a teacher
with N.C. Special Care Eastern Adolescent
Treatment Program (EATP) where he worked with
“Willie M” program adolescents.
2. Plaintiff suffered an injury to his
Achilles tendon while playing basketball on
December 11, 2001, after his normal work
hours.
3. Plaintiff's basketball team was part
of a recreational industrial basketball league
organized by the Recreation Department of the
City of Wilson. The team's basketball games
were played at Reed Street Recreational
Center, which was unrelated to defendant's
property.
4. Defendant's employees organized the
team on their own. Defendant did not
participate in organizing the basketball
league or the team organized by the employees.
Defendant never paid for the employee's time
while participating on the team. Defendant
neither recommended nor encouraged employees
to participate in the basketball team.
Defendant expected no benefit from the
existence of the basketball team. Defendant
never requested that the players appear at any
functions to represent defendant or promote
their place of employment.
5. Defendant provided no equipment for
the team. During the course of the team's
history prior to plaintiff's injury, defendant
only contributed $200.00 of the $350.00 team
entrance fee in the first year of the team's
existence, which was the year prior to
plaintiff's injury. The source of funds for
defendant's one-time monetary contribution was
money from vending machines on defendant's
property.
6. Team participants were responsible
for payment of their own individual entrance
fees and their own uniforms.
7. The players asked Dr. Richard
Francis, a staff doctor, to serve as a
volunteer coach of the team. Dr. Francis
served as coach and provided basketballs for
the team at his personal expense.
8. The players organized a raffle and a
chicken plate fund-raising event to raise
money for the team's yearly entrance fee. The
chicken plate fund-raising event was supposed
to be executed by team players who were not
working. However, several of the players did
not show up and several on duty employees
filled in because some players did not show
up. No long-term commitment of employee time
was made by defendant to support the team in
any manner. Also, players asked for personal
donations from other employees to supplement
their fundraising efforts.
9. Plaintiff received no compensation
from defendant for playing on the team nor was
he required by defendant to participate.
10. Evidence reveals that some of the
counselors would allow students who had
demonstrated good conduct to be taken off
campus to watch the employees' basketball team
perform. The Full Commission gives this
evidence little weight especially since there
was no evidence presented showing defendant
asked employees to use the games as a reward.
11. The Full Commission does not find
credible the hearing testimony of employee
Miguel Hall that the counselors played
basketball games while they were “on the
clock” and that advance notice of this had
been given to Gayle Moore, Director of EATP.
12. Based upon the totality of the
evidence, plaintiff has failed to prove by the
greater weight of the evidence that his injury
arose out of and in the course and scope of
his employment with defendant.
Based on these findings of fact, the Full Commission made the
following conclusions of law:
1. For a workers' compensation claim to
be compensable, plaintiff must show that he
sustained an “injury by accident arising out
of and in the course of the employment.”
N.C.G.S. 97-2(6), (18). Both parts of the
definition must be satisfied in order for
compensability to be found. Bell v. Dewey
Bros., 236 N.C. 280, 72 S.E.2d 280 (1952).
2. “While it is clear that recovery will
be allowed when attendance is required, the
question becomes closer when the degree of
employer involvement descends to mere
sponsorship or encouragement.” Chilton v.
Bowman Gray School of Medicine, 45 N.C. App.
13, 262 S.E.2d 347 (1980). In this case,
plaintiff's attendance was not required and
the degree of employer involvement at the time
of plaintiff's injury did not consist of
sponsorship or encouragement; therefore,
plaintiff's injury did not arise out of and in
the course and scope of his employment.
3. In Chilton, the Court of Appeals
adopted from Larson's treatise on workers'
compensation the following structured analysis
applicable to recreation cases such as this:
(1) Did the employer in fact sponsor the
event? (2) To what extent was attendance
really voluntary? (3) Was there some degree
of encouragement to attend evidenced by such
factors as: a.) taking a record of attendance;
b.) paying for the time spent; c.) requiring
the employee to work if he did not attend; or
d.) maintain a known custom of attending? (4)
Did the employer finance the occasion to a
substantial extent? (5) Did the employees
regard it as an employment benefit to which
they were entitled as of right? (6) Did the
employer benefit from the event, not merely in
a vague way through better morale and good
will, but through such tangible advantages as
having an opportunity to make speeches and
awards? Chilton, [45] N.C. App. [at] 14-15,
262 S.E.2d at 348. As the greater weight of
the evidence so indicates in this case, none
of these questions may be answered in the
affirmative; thus, plaintiff is entitled to no
recovery of benefits under the Workers'
Compensation Act.
Based on these findings of fact and conclusions of law, the
Full Commission denied plaintiff's claim. Subsequently, plaintiff
filed a motion to reconsider and a motion to allow additional
evidence. The Full Commission denied these motions. Plaintiff
appeals. On appeal, plaintiff argues that the Full Commission erred by
(1) denying the motion to reconsider and the motion to allow
additional evidence, (2) failing to dismiss the appeal from the
Deputy Commissioner to the Full Commission because the appeal was
not stated with particularity, and (3) refusing to force the Full
Commission to produce a stenographic record of oral arguments. We
disagree and affirm the opinion and award of the Full Commission.
(See footnote 1)
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