NO. COA04-861
The dispositive issue is whether the Commission erred in
determining plaintiff's claim is not compensable under the Workers'
Compensation Act.
“The standard of review on appeal to this Court from an award
by the Commission is whether there is any competent evidence in the
record to support the Commission's findings and whether those
findings support the Commission's conclusions of law. Therefore,
if there is competent evidence to support the findings, they are
conclusive on appeal even though there is plenary evidence to
support contrary findings.”
Oliver v. Lane Co., 143 N.C. App. 167,
170, 544 S.E.2d 606, 608 (2001) (citations omitted). “[T]he
Commission's conclusions of law are fully reviewable.”
Holley v.
ACTS, Inc., 357 N.C. 228, 231, 581 S.E.2d 750, 752 (2003) (citing
Lanning v. Fieldcrest-Cannon, Inc., 352 N.C. 98, 106, 530 S.E.2d
54, 60 (2000)).
Under N.C. Gen. Stat. § 97-2(6) (2003), an injury by accident
must arise out of and in the course of employment to be compensable
under the Workers' Compensation Act.
Royster v. Culp, Inc., 343
N.C. 279, 470 S.E.2d 30 (1996). The general rule is that an
accidental injury occurring while an employee travels to and from
work is not one that arises out of and in the course of employment.
Powers v. Lady's Funeral Home, 306 N.C. 728, 730-31, 295 S.E.2d473, 475 (1982). The “hazards of traffic are not incident to the
employment and are common to the general public,” and not covered
by the Act. Leonard T. Jernigan, Jr., North Carolina Worker's
Compensation Law and Practice § 6-3 (3d ed. 1999) (citing
Harless
v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968)). This is known as
the “coming and going” rule.
Id.
Plaintiff claims his injuries are compensable because his
accident falls within an exception to the “coming and going” rule.
We disagree.
We first note plaintiff fails to set out assignments of error
in his brief as required by N.C. R. App. P. Rule 28(b)(6).
“Assignments of error not set out in the appellant's brief, or in
support of which no reason or argument is stated or authority
cited, will be deemed abandoned.” N.C. R. App. P. Rule 28(b)(6)
(2003). Therefore, plaintiff's assignments of error are deemed
abandoned and the Commission's findings of fact are binding on
appeal.
See Hooker v. Stokes-Reynolds Hospital/North Carolina
Baptist Hosp., 161 N.C. App. 111, 114-15, 587 S.E.2d 440, 443
(2003),
disc. review denied, 358 N.C. 234, 594 S.E.2d 192 (2004).
The Commission made the following pertinent findings of fact:
1. On February 14, 2000, plaintiff was
employed as an estimator with [defendant]. He
has been so employed since 1977.
. . .
4. Plaintiff lived approximately 21 miles
from [defendant's place of business]. The
majority of the time, plaintiff traveled
straight to the office on weekday mornings
from his house.
5. On the morning of February 14, 2000,
plaintiff left his home in Maple Hill, North
Carolina at approximately 6:30 a.m. . . .
6. Plaintiff testified at the hearing before
the Deputy Commissioner that on February 14,
2000 he was not traveling to run any errands
to benefit his employer and his destination
was [defendant's place of business]. Plaintiff
was driving a [vehicle] leased by [defendant]
and [defendant] did not give plaintiff any
travel allowance for his commutes to and from
work.
7. The plaintiff was approximately seven
miles [from work] when his vehicle collided
with another vehicle. The plaintiff was alone
in his vehicle at the time of the accident.
8. Plaintiff sustained back injuries in the
accident and was transported to a hospital in
Jacksonville.
9. The plaintiff was later transported to
[the hospital and] his x-rays revealed a
fracture at his L-1 vertebrae. Dr. Robert
Wilfong performed a spinal fusion on the
plaintiff and he remained hospitalized for ten
days.
10. Dr. Wilfong ultimately released plaintiff
to return to work and he went back to work
[for defendant] from May, 2000 through
February 7, 2001. During these nine (9)
months, plaintiff performed quantity takeoffs
for estimators, took measurements of units at
job sites, and performed survey layouts.
11. On February 7, 2001, plaintiff left work
with [defendant] and has not worked anywhere
since.
12. Dr. Wilfong remains as plaintiffs primary
treating physician. The plaintiff continues to
experience pain.
. . .
14. Defendant[] gave plaintiff a choice of
driving his company vehicle to and from work
or driving his own personal vehicle to and
from work each day. There would have been no
disadvantage to plaintiff had he elected to
leave the [company vehicle] at work at the end
of each workday rather than drive it home.
[Defendant had not] ever told plaintiff that
he had to take his company vehicle home at
night. Plaintiff chose to drive [the company
vehicle] to and from his house each day,
instead of his personal vehicle.
15. [Defendant] employees who were permitted
to use company vehicles were required to fill
out an expense account form on a monthly
basis. On these forms, they had to record
personal miles and business miles. For every
personal mile listed, a calculation would
be
made as to the value of that mileage and it
would be declared by the employee as income,
and the employee would then be taxed on that
income. On the front of the expense form, the
employee was required to fill in his
work-related mileage for that month in a
column labeled “Business Miles” and was
required to list his personal miles for that
month in a column labeled “Other Personal
Miles.” It was [defendant's] expectation that
the mileage incurred by employees traveling to
and from work be included within the personal
mileage category. Plaintiff [] attended a
meeting several years ago in which [defendant]
employees were informed on this procedure.
16. At the hearing before the Deputy
Commissioner, the plaintiff testified that he
knew that he would be taxed for every personal
mile he placed on the vehicle. According to
[p]laintiff's expense forms for 1999 and 2000
plaintiff listed his mileage to and from work
in the personal miles category, based on his
understanding that he was going to be taxed on
these miles.
17. The competent evidence in the record
establishes that the provision of the [company
vehicle] was not a contractual benefit of
plaintiff's employment. No contractual right
to employer-provided transportation existed as
the provision for transportation offered
plaintiff by defendant was not an incident to
plaintiff's contract of employment with
defendant. Plaintiff had no contractual right
to the transportation and therefore
plaintiff's right to the transportation was a
mere accommodation.
18. The competent evidence in the record
further establishes that on February 14, 2001,
plaintiff was commuting to work and was thus
outside the scope of his employment with
[defendant].
Based on these findings of fact, the Commission made the following
conclusions of law:
1. Plaintiff must prove by the greater
weight of the evidence that he sustained an
injury by accident arising out of and in the
course of his employment. N.C.G.S. . 97-3(6).
An injury occurring while an employee is
traveling to and from work does not arise in
the course of employment and is not
compensable.
Royster v. Culp, Inc., 343 N.C.
279, 470 S.E.2d 30 (1996);
Jennings v.
Backyard Burgers [], 123 N.C. App. 129, 472
S.E.2d 205 (1996). In the instant case,
plaintiff has not established that hesustained an injury by accident arising out of
and in the course of his employment with
defendant on February 14, 2000.
2. The greater weight of the competent
evidence in the record establishes that
plaintiff was not engaged in performing any
service for his employer at the time of his
accident. The “hazards of traffic” are common
to the general public and therefore not
incident to employment.
Tew v. E.B. Davis
[Elec. Co.], 142 N.C. App. 120, 541 S.E.2d 764
(2001) citing
Harless v. Flynn, 1 N.C. App.
448, 162 S.E.2d 47 (1968).
3. The vehicle provided in the present case
was not incident to the contract of
employment. A claim may be compensable,
pursuant to the “contractual duty” exception,
if a vehicle is provided as a matter of right
as a result of the employment contract. If a
vehicle is “provided permissively,
gratuitously or as an accommodation, the
employee is not within the course of
employment while in transit.”
Hunt v. Tender
Loving Care Home Care Agency, [Inc.], 153 N.C.
App. 266, 569 S.E.2d 675,
disc. review denied,
356 N.C. 436, 572 S.E.2d 784 (2002).
4. An exception to the “coming and going” rule
states that if an employer provides a vehicle
or compensation to cover the cost of
transportation, injuries that occur while
commuting to and from work are compensable.
Puett v. Bahnson Co., 231 N.C. 711, 58 S.E.2d
633 (1950). The facts in
Puett are
distinguishable from the present case since
[defendant] provided plaintiff with a vehicle
in which plaintiff listed all of the miles
traveling to and from work as personal miles
and paid taxes for these miles. The competent
evidence in the record establishes plaintiff
was traveling alone on February 14, 2000 and
[defendant] never paid plaintiff a travel
allowance for the miles he traveled to workand back home. Therefore, plaintiff's injury
on February 14, 2000 does not fall under the
paid travel exception to the “coming and
going” rule.
5. Based on the totality of the circumstances
in the present case, plaintiff did not sustain
an injury by accident arising out of and in
the course of his employment with defendant
employer on February 14, 2000. Plaintiff's
claim, therefore, is not compensable under the
provisions of the North Carolina Workers'
Compensation Act. N.C.G.S. . 97-2(6).
In many cases involving facts analogous to those in the
present action, North Carolina appellate courts have applied the
“coming and going” rule in holding that the claims at issue were
not covered under the Act. In
Travelers Ins. Co. v. Curry, 28 N.C.
App. 286, 221 S.E.2d 75,
disc. review denied, 289 N.C. 615, 223
S.E.2d 396 (1976), the decedent employee was allowed to use a
vehicle owned by his employer to transport himself and two other
employees to and from work. This transportation was a part of the
employee's job, for which he was compensated. While driving to the
employer's place of business, he was involved in a collision in
which he was killed. The pertinent facts as found by the trial
court and affirmed by this Court in
Curry were as follows: (1) the
employee was not performing any duty or labor for his employer on
the date of the accident while traveling to and from work in the
vehicle furnished by the employer; (2) the actual commencement of
the daily employment of the decedent and the other two employeesriding in his vehicle occurred when they arrived at their place of
employment and terminated when they departed said place of
employment; (3) the employees had no entitlement to transportation
furnished by the employer; (4) the employees were not required by
the employer to use such transportation in traveling to and from
work; and (5) the transportation to and from work furnished to the
employees by the employer was gratuitous and merely an
accommodation.
Id. at 290, 221 S.E.2d at 78
. Holding that the
accident did not occur within the course and scope of the
employee's employment, the Court of Appeals noted
that employers do
“not expose [themselves] to liability for workmen's compensation
purposes by gratuitously furnishing transportation for [their]
employees.”
Id.;
See Tew v. E.B. Davis Elec. Co., 142 N.C. App.
120, 541 S.E.2d 764 (2001)
(holding employee injured in collision
while riding home in employer's car was
claim barred by the “coming
and going” rule
and concluding employer-provided transportation
was
a mere accommodation rather than evidence of a contractual right);
See also Harris v. Jack O. Farrell, Inc., 31 N.C. App. 204, 207-08,
229 S.E.2d 45, 47 (1976) (holding employer-provided transportation
was not incident to employees' contract, therefore the resulting
accident was not compensable).
It is clear the “coming and going” rule
applies to plaintiff
in the present action. Defendant was under no contractual duty toprovide transportation to plaintiff. The provision of the company
vehicle to plaintiff was merely permissive and gratuitous, not
obligatory. Plaintiff was not performing duties for defendant at
the time of the accident but rather was merely en route to work.
Plaintiff had the option of driving his personal vehicle to work
but chose to drive the company vehicle instead, with the knowledge
he would be taxed on the value of his miles commuting to and from
work as personal income. Defendant could have taken the company
vehicle from plaintiff at any time for any reason. Accordingly,
based on the operation of the “coming and going” rule, plaintiff's
claim is not compensable.
Affirmed.
Judges WYNN and JACKSON concur.
Report per Rule 30 (e).
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