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1. Workers' Compensation_traveling employee rule_employee attacked at motel
An electrician was a traveling employee for workers' compensation purposes when
he was beaten and robbed at the Richmond, Virginia motel at which he was staying while
on a job. The traveling employee rule should not be confused with the coming and going
rule.
2. Workers' Compensation_employee attacked at motel_injuries arising from
employment
A workers' compensation plaintiff suffered injuries arising out of his employment
where he was attacked in the motel at which he was staying while he worked out-of-town.
The risk to which plaintiff was exposed was not something to which he would have been
equally exposed apart from his employment-required travel.
3. Workers' Compensation_total disability_inability to work_not proven
The Industrial Commission did not err by concluding that a workers' compensation
plaintiff had not met his burden of proving total disability where there was no presumption
from a prior award or agreement, no medical evidence that plaintiff was unable to work at
any employment, and the receipt of Social Security disability benefits is not alone
sufficient to establish that it would be futile to seek alternative employment.
4. Workers' Compensation_disability ended_not based on maximum medical
improvement
The Industrial Commission ended plaintiff's disability because he had not proven
continuing total disability, not because he had reached maximum medical improvement.
Kellum Law Firm, by Douglas B. Johnson, for plaintiff.
Cranfill, Sumner & Hartzog, L.L.P., by W. Scott Fuller
and Meredith T. Black, for defendants.
Lewis & Roberts, PLLC, by Richard M. Lewis, Winston L.
Page, Jr. and Jeffrey A. Misenheimer, for North Carolina
Associated Industries, amicus curiae.
GEER, Judge.
Both plaintiff and defendants have appealed from an
opinion and award of the Industrial Commission granting
plaintiff temporary total disability compensation under N.C.
Gen. Stat. . 97-29 (2005) for the period from 18 July 2000
through 5 April 2001 and compensation for partial permanent
disability under N.C. Gen. Stat. . 97-31 (2005). Plaintiff
Walter Lee Ramsey, Jr. was assaulted while staying at a motel
in Richmond, Virginia in order to work for defendant Southern
Industrial Constructors, Incorporated ("Southern") on a
project in Petersburg, Virginia. The issue on appeal is
whether the Industrial Commission erred in determining that
this assault arose out of and in the course of plaintiff's
employment with Southern. We hold that it did not err. We
further hold, with respect to plaintiff's appeal, that the
record contains competent evidence to support the Commission's
conclusion that plaintiff failed to meet his burden of proving
continuing total disability. Accordingly, we affirm the
Commission's opinion and award.
Id. at 43-44, 167 S.E.2d at 794. In this case, defendants, in challenging the Commission's
determination that the assault occurred in the course of
plaintiff's employment, contend that the Commission erred in
finding that plaintiff was a traveling employee within the
meaning of Martin. The North Carolina appellate courts have
not specifically defined who qualifies as a "traveling
employee." The Indiana Court of Appeals has, however, adopted
a definition that we find helpful: "A traveling employee is
one whose job requires travel from place to place or to a
place away from a permanent residence or the employee's place
of business." Olinger Constr. Co. v. Mosbey, 427 N.E.2d 910,
912 (Ind. Ct. App. 1981). See also Chicago Bridge & Iron,
Inc. v. The Indus. Comm'n, 248 Ill. App. 3d 687, 694, 618
N.E.2d 1143, 1148 (1993) ("The traveling employee is described
. . . as one who is required to travel away from the
employer's premises in order to perform his job."); Boyce v.
Potter, 642 A.2d 1342, 1343 (Me. 1994) ("Traveling employees
are employees for whom travel is an integral part of their
jobs, such as those who travel to different locations to
perform their duties, as differentiated from employees who
commute daily from home to a single workplace."); Shelton v.
Azar, Inc., 90 Wash. App. 923, 933, 954 P.2d 352, 357 (1998)
(describing traveling employees as "[e]mployees whose work
entails travel away from the employer's premises").
The question before the Commission in this case was,
therefore, whether plaintiff's employment with Southernrequired plaintiff to travel to a site away from his permanent
residence or Southern's place of business. For the traveling
employee rationale to apply in a case like this one, the
travel must involve a distance sufficient to require plaintiff
to find lodging at the site rather than commute from his home.
On the traveling employee issue, the Commission found:
11. On 17 July 2000, plaintiff was
an employee whose job involved traveling
to the job sites where defendant-employer
assigned him work. Since he was then
working at a steel mill in Petersburg,
Virginia, he was a traveling employee.
Defendant-employer did not pay a per diem
allowance to local employees. As Mr.
Sanders, plaintiff's former supervisor,
testified, it was more cost effective for
the company to hire local workers since
local workers did not receive the per diem
travel allowance. Nevertheless, the
company routinely assigned employees,
including plaintiff, to jobs that required
them to travel and find lodging. The fact
that defendant-employer's rules prohibited
plaintiff from receiving the per diem
amount for the night of 17 July 2000 does
not negate the fact that plaintiff was
required to stay in a motel in the area
since he was so far from home, in order to
be able to report for work on time the
next morning.
Defendants argue that these findings are not supported by the
evidence. We disagree.
Plaintiff's testimony and that of defendant Southern's
supervisors provides ample evidence to support the
Commission's finding that plaintiff's employment involved
traveling to job sites where Southern assigned him to work.
See Chicago Bridge & Iron, 248 Ill. App. 3d at 694, 618 N.E.2d
at 1149 (holding that itinerant welder was a travelingemployee when he was sent by the employer to various remote
job sites, even though he was terminated from the payroll
after each job). Further, plaintiff testified that Sanders
told him that he was being transferred by Southern to
Petersburg.
The evidence also supports the Commission's finding that
Southern routinely assigned employees to jobs that required
travel and lodging. Both Parker, the Petersburg supervisor,
and Sanders, the Durham supervisor, indicated that it was more
cost effective to hire local employees because of the lack of
any need to pay a per diem, but that when local employees were
unavailable, the job sites requested non-local employees from
the project manager at Southern's home offices in Raleigh.
Specifically, Parker testified: "[I]f we need help, then we
let [Raleigh] know, and then they _ [i]f we can't get them
locally in the area _ [w]e try to hire local help if we can
get them. But if you can't, then our Raleigh office will, you
know, let us know that they got people looking for a job."
In this case, Parker told his Raleigh project manager
that he needed people for the plant shut-down and plaintiff
was one of the employees that the project manager "sent."
Based on this testimony, the Commission was justified in
finding that plaintiff's employment at the Petersburg plant _
work that Southern had contracted with the steel mill to
perform _ required that he travel and stay in motels
overnight. Indeed, the evidence establishes, as theCommission found, that plaintiff was paid a per diem while
working in Petersburg, although the amount varied between the
shut-down job and the maintenance position. As Southern's
supervisors confirmed, a per diem was necessary solely because
plaintiff was not a local worker and was required to travel.
See Martin, 5 N.C. App. at 43, 167 S.E.2d at 794 ("That
[eating meals at a restaurant] was a necessary incident of the
employment is recognized by the employer when it agreed to pay
for his meals.").
Other jurisdictions have concluded that comparable facts
justified a finding that the employee was a traveling
employee. See, e.g., Olinger, 427 N.E.2d at 916 ("In a case
such as this, however, where the employee's job was away from
his home and his employer's offices, where his job location
shifted as the employer required, and where the employer paid
him on a per diem basis to help cover the cost of living away
from home, we cannot dispute the Board's prerogative in
finding the employee is a traveling employee."); Brown v.
Palmer Constr. Co., 295 A.2d 263, 266 (Me. 1972) (holding that
plaintiff was a traveling employee when the necessity of his
lodging in Vermont was because the employer needed him to
complete the work it had contracted to perform in Vermont).
Defendants urge, however, that the Commission improperly
labeled plaintiff a traveling employee because, rather than
being assigned to work out-of-town by Southern, he chose to
accept employment in another state away from home. While therecord contains evidence that could support defendants'
contention, it also contains evidence that Southern assigned
plaintiff, a current employee in Durham, to work in
Petersburg, thereby requiring plaintiff to travel and stay in
a motel overnight; that the assignment was necessary in order
for Southern to perform its contractual responsibilities at
the Petersburg plant; and that plaintiff, therefore, fell
within the rule for traveling employees.
Defendants argue alternatively that even if plaintiff was
a traveling employee with respect to the shut-down job, the
maintenance job was a separate, permanent job in which
plaintiff was a regular employee rather than a traveling
employee. Ken Parker, the plaintiff's foreman in Petersburg,
testified that if there had not been a second job for the
plaintiff to do in Petersburg, Southern would have laid
plaintiff off _ testimony indicating that plaintiff was not
actually laid off between the first and second job in
Petersburg, but instead his employment continued. The
Commission found _ in a finding of fact not challenged on
appeal and, therefore, binding _ that the offer of the
maintenance position was only for "at least the next week."
Plaintiff continued to receive a per diem, although in a lower
amount. Neither the Commission's findings of fact nor the
record supporting those findings suggests that the nature of
plaintiff's employment changed from that of a traveling
employee to a local hire. See Shelton, 90 Wash. App. at 936,954 P.2d at 359 (rejecting respondents' argument that the city
where the out-of-town job was located had become the
employee's home and holding that because the employee "was
required to travel to a specific out-of-town location to
fulfill the terms of his employment[,] [h]e, therefore, was
exposed to greater risks than an employee required only to
travel in an ordinary commute from home").
Further, defendants contend that because the maintenance
job involved fixed hours at a fixed location, plaintiff was
not a traveling employee. Defendants have, however, confused
the analysis of the "going and coming" rule with the rule for
traveling employees.
(See footnote 1)
As the leading commentators on workers'
compensation law have stated: "[A] compromise on the subject
of going to and from work has been arrived at, largely by case
law, with a surprising degree of unanimity: for an employee
having fixed hours and place of work, going to and from work
is covered only on the employer's premises." 1 Arthur Larson
and Lex K. Larson, Larson's Workers' Compensation Law §
13.01[1], at p. 13-3 (2005). Traveling employees are, however, subjected to a separate
rule. See, e.g., Olinger, 427 N.E.2d at 915 (holding that
rationale behind the traveling employee rule "applies equally
to an employee who travels to a fixed location and stays there
to do his job"); Ramirez v. Dawson Prod. Partners, Inc., 128
N.M. 601, 606, 995 P.2d 1043, 1048 (N.M. Ct. App. 2000)
("[T]he traveling-employee rule recognizes that the conditions
faced by employees working 'on the road,' away from home and
away from their employer's home office, are sufficiently
different from the conditions faced by employees merely going
to or from their local place of employment on a daily basis to
warrant a distinct rule."); Duncan v. Ohio Blow Pipe Co., 130
Ohio App. 3d 228, 235, 719 N.E.2d 1029, 1034 (1998) (holding
that the fact that the employee had fixed hours and a fixed
work location for purposes of the "coming-and-going" rule
"does not end the inquiry," and the employee may still prevail
upon demonstrating that he is a traveling employee). The
issue is not whether the assignment entails more than one
location or varying hours, but whether traveling over night
was a necessary incident of the employment.
In sum, because the record contains competent evidence
that plaintiff was a traveling employee at the time of his
injury, the Commission did not err in making such a
determination. As a traveling employee, plaintiff met the
requirement for establishing his injury occurred in the course
of his employment. B. "Arising Out of" the Employment Requirement
[2] In discussing the "arising out of" requirement, the
parties each take the most extreme position. According to
plaintiff, the mere fact that he was injured while traveling
at the request of the employer renders the injury compensable
as "arising out of" his employment. Under this approach, a
finding that the employee was a "traveling employee" would
resolve both the "in the course of" and the "arising out of"
requirements. Our Supreme Court has, however, held that even
if an employee amounts to a traveling employee for purposes of
determining whether an injury occurred within the course of
employment, the employee must still establish that the injury
arose out of his employment. See Roberts v. Burlington
Indus., Inc., 321 N.C. 350, 354, 364 S.E.2d 417, 421 (1988)
(noting that the employer did not dispute that the injury
occurred in the course of employment, but proceeding to
address the "arising out of" requirement); Bartlett, 284 N.C.
at 235-36, 200 S.E.2d at 196 (reversing Commission because
even conceding that the decedent, a traveling employee, died
in the course of his employment, he had not established that
his death arose from his employment).
Defendants, on the other hand, urge this Court to hold
that a traveling employee may not meet the "arising out of"
requirement unless the injury occurred while he was performing
his work duties. This approach would eviscerate the
"traveling employee" rule adopted by our courts, whichprovides that employees are considered "'to be within the
course of their employment continuously during the trip,
except when a distinct departure on a personal errand is
shown.'" Chandler v. Nello L. Teer Co., 53 N.C. App. 766,
768, 281 S.E.2d 718, 720 (1981) (emphasis added) (quoting
Brewer v. Powers Trucking Co., 256 N.C. 175, 179, 123 S.E.2d
608, 611 (1962)), aff'd per curiam, 305 N.C. 292, 287 S.E.2d
890 (1982). This Court has held that, under this rule,
"injuries arising out of the necessity of sleeping in hotels
or eating in restaurants away from home are usually held
compensable." Martin, 5 N.C. App. at 41, 167 S.E.2d at 793.
If we were to adopt defendants' view, no injury arising out of
sleeping in hotels or eating away from home would be
compensable because it would not occur while the employee was
working. See Ramirez, 128 N.M. at 607, 995 P.2d at 1049
("[G]iven the rationale behind the [traveling employee]
exception, it would make little sense to provide coverage for
traveling employees only while they are actually performing
the duties of their jobs.").
In short, neither of the approaches urged by the parties
is consistent with North Carolina precedent regarding
traveling employees. We agree with defendant, however, that
our courts have applied an "increased risk" analysis and have
rejected the "positional risk" doctrine in applying the
"arising out of" requirement. This Court has explained:
[T]he "increased risk" analysis . . .
focuses on whether the nature of theemployment creates or increases a risk to
which the employee is exposed. Roberts,
321 N.C. at 358, 364 S.E.2d at 422. This
"increased risk" analysis is different
from the "positional risk" doctrine,
"which holds that '[a]n injury arises out
of the employment if it would not have
occurred but for the fact that the
conditions and obligations of employment
placed claimant in the position where he
was killed.'" Id. (quoting 1 A. Larson,
The Law of Workmen's Compensation § 6.50
(1984)). Our Supreme Court has chosen to
follow and apply the "increased risk"
analysis instead of relying on the more
liberal "positional risk" doctrine.
Dildy v. MBW Invs., Inc., 152 N.C. App. 65, 69, 566 S.E.2d
759, 763 (2002). We disagree, however, with defendants'
application of the "increased risk" test.
Defendants assert that the Commission failed to find and
the evidence failed to show that "there was anything about the
peculiar nature of plaintiff's employment as an electrician
that increased his risk of injury at the Flagship Inn."
(Emphasis added.) Defendants have not taken into account the
fact that an incident of plaintiff's employment is that he was
a traveling employee. See Martin, 5 N.C. App. at 43, 167
S.E.2d at 794 ("'While lodging in a hotel or preparing to eat,
or while going to or returning from a meal, [the employee] is
performing an act incident to his employment, unless he steps
aside from his employment for personal reasons.'" (quoting
Thornton v. Hartford Accident & Indem. Co., 198 Ga. 786, 790,
32 S.E.2d 816, 819 (1945))); Duncan, 130 Ohio App. 3d at 237,
719 N.E.2d at 1035 (holding that because plaintiff, at the
direction of his employer, traveled to an employmentassignment in another state, his "exposure to the risks
associated with travel were quantitatively greater than that
of the general public"). Both Bartlett and Roberts establish
that when the employee is a traveling employee, the question
is whether the employee was subjected to an increased risk
because of the requirement that he travel.
In Bartlett, the Supreme Court held that for an employee
to meet the "arising out of" requirement, the injury
must come from a risk which might have
been contemplated by a reasonable person
familiar with the whole situation as
incidental to the service when he entered
the employment. The test excludes an
injury which cannot fairly be traced to
the employment as a contributing proximate
cause and which comes from a hazard to
which the workmen would have been equally
exposed apart from the employment. The
causative danger must be peculiar to the
work and not common to the neighborhood.
It must be incidental to the character of
the business and not independent of the
relation of master and servant. It need
not have been foreseen or expected, but
after the event it must appear to have had
its origin in a risk connected with the
employment, and to have flowed from that
source as a rational consequence.
284 N.C. at 233, 200 S.E.2d at 195 (internal quotation marks
omitted). In Bartlett, the employee, who was a traveling
employee, died after choking on a piece of meat he was eating
at a restaurant. The Court held that the plaintiff had failed
to establish that this death arose out of his employment
because:
[t]he risk that [the employee] might
choke on a piece of meat while dining at
the Orleans House was the same risk towhich he would have been exposed had he
been eating at home or at any other public
restaurant in the Washington area.
Whether employed or unemployed, at home or
traveling on business, one must eat to
live. In short, eating is not peculiar to
traveling; it is a necessary part of daily
living, and one's manner of eating, as
well as his choice of food, is a highly
personal matter.
Id. at 234, 200 S.E.2d at 195 (emphasis added). Thus, under
Bartlett, a traveling employee's injury may be compensable if
it results from a risk that is "peculiar to traveling."
(See footnote 2)
In Roberts, 321 N.C. at 355, 364 S.E.2d at 421, the Court
stated that "[t]he basic question is whether the employment
was a contributing cause of the injury." The Court noted that
"[a]t times this Court has applied an 'increased risk'
analysis in determining whether the 'arising out of the
employment' requirement has been met." Id. at 358, 364 S.E.2d
at 422. Under that approach, "the injury arises out of the
employment if a risk to which the employee was exposed because
of the nature of the employment was a contributing proximate
cause of the injury, and one to which the employee would not
have been equally exposed apart from the employment." Id.,
364 S.E.2d at 423. With respect to traveling employees, the
Court held "that when an employee's duties require him to
travel, the hazards of the journey are risks of the
employment." Id. at 359, 364 S.E.2d at 423. In Roberts, theemployee was struck by a car and killed after he attempted to
help an injured pedestrian. The Court concluded that the
plaintiff had failed to meet the "arising out of" requirement
because "the required travel merely placed decedent in a
position to seize the opportunity to rescue the injured
pedestrian. His decision to render aid created the danger;
the risk was not a hazard of the journey." Id. (emphasis
added).
The question before the Commission was, therefore,
whether the risk of assault at the motel was a hazard of the
journey or, in other words, as articulated in Bartlett, a risk
peculiar to traveling. The Commission made the following
pertinent finding of fact:
12. At the time of the assault,
plaintiff was getting ice at the motel
where he was staying. This was an
activity that a traveling employee would
reasonably be expected to do. The purpose
of the assault was robbery. Plaintiff did
not know his assailants. There was no
personal motive involved with the attack.
A traveler staying in a motel would be
expected to be carrying cash in order to
pay for meals, drinks, fuel and other
incidental expenses. Consequently, as a
traveling employee at a low cost motel,
plaintiff would have been placed at some
risk for being robbed. The risk was
incidental to his employment, which
required him to obtain lodging away from
home in places where he was unfamiliar
with the neighborhood.
This reasoning is sufficient to meet the Bartlett and Roberts
test. The hazard to which plaintiff in this case was exposed,
assault and robbery, was not something to which he would havebeen equally exposed apart from his employment-required
travel, that necessitated plaintiff's stay in an inexpensive
motel located in unfamiliar surroundings. Being assaulted and
robbed while obtaining ice from an ice machine to make lunch
is a hazard of the journey and a risk peculiar to traveling.
Other jurisdictions reviewing facts analogous to those in
this case have reached similar conclusions. In Ark. Dep't of
Health v. Huntley, 12 Ark. App. 287, 292, 675 S.W.2d 845, 848-
49 (1984), the court held that an employee suffered
compensable injuries when her out-of-town service calls
required her to check into a motel room and she was assaulted
as she walked back to her motel room from a nearby bar.
Similarly, in Jean Barnes Collections v. Elston, 413 So. 2d
797, 798 (Fla. Ct. App. 1982), the court held that a traveling
employee sustained a compensable accident when she was raped
in her hotel room. In Brown, 295 A.2d at 267, the court held
that an employee, who was assigned to an out-of-town job and
who was provided with additional money to cover living
expenses while away from home, was entitled to workers'
compensation when the gas stove in his rented apartment blew
up.
Defendants' contention that the Commission applied a
"positional risk" analysis fails to take into account the fact
that plaintiff was a traveling employee. Plaintiff has not
been awarded compensation simply because his employment placed
him a position to be injured, but rather because _ as requiredby the "increased risk" doctrine _ an incident of his
employment, traveling, increased his risk of incurring
precisely this type of injury.
Dodson v. Dubose Steel, Inc., 358 N.C. 129, 591 S.E.2d
548 (2004), rev'g per curiam for the reasons in the dissent,
159 N.C. App. 1, 582 S.E.2d 389 (2003), does not provide
otherwise. In Dodson, the dissenting opinion adopted by the
Supreme Court specifically noted that confrontations while
driving could occur "at anytime to any member of the general
public in the normal course of operating a motor vehicle."
159 N.C. App. at 15, 582 S.E.2d at 398 (Steelman, J.,
dissenting). The fact that the plaintiff was on a business
trip did not increase his risk of being a victim of road rage
beyond the risk he ran when driving while at home.
Even more significantly, the dissenting opinion in Dodson
stressed that once the plaintiff exited his truck to confront
the driver, "his conduct was no longer related to his
employment." Id. at 16, 582 S.E.2d at 398. He was on a
personal, rather than an employment-related, mission: "[I]t
was [plaintiff's] independent and voluntary act of getting out
of his truck to confront [the driver] which created the risk
that he could be struck by another vehicle. The risk of
injury was not created by the nature of his employment." Id.
By contrast, plaintiff's injuries in this case were the result
of a risk arising from staying in a motel and eating away from
home _ a type of risk that our appellate courts have alreadydetermined is incident to the employment of a traveling
employee. Martin, 5 N.C. App. at 42, 167 S.E.2d at 793
(noting that traveling employees, whether or not on call,
usually do receive protection when the injury has its origin
in a risk created by the necessity of sleeping and eating away
from home).
Nothing in Dodson suggests that the Supreme Court or the
dissenting opinion intended to sub silentio overrule the
Bartlett and Roberts test or the well-established law
regarding traveling employees. If, however, we adopted
defendants' application of Dodson, it would necessarily
preclude recovery for injuries arising out of the risk of
staying in hotels or eating in restaurants. We decline to so
construe Dodson without affirmative guidance from our Supreme
Court.
Because we believe the circumstances in their entirety
furnished competent evidence for the Commission to decide that
plaintiff's injuries arose out of his employment, we affirm
the Commission's ruling that plaintiff suffered a compensable
injury by accident. Since defendants present no other basis
for overturning the Commission's determination, we affirm the
Commission's award of compensation.
Affirmed.
Judges CALABRIA and ELMORE concur.
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