Appeal by defendants from opinion and award entered 3 January
2005 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 23 January 2006.
Huggins, Pounds & Davis, L.L.P., by Dallas M. Pounds, for
Womble Carlyle Sandridge & Rice, P.L.L.C., by Phillip J. Mohr,
Defendants, APAC Carolina, Inc./Ashland Inc., and ACE USA,
appeal an opinion and award concluding that plaintiff, James Willie
Hunt, was injured during the course and scope of his employment and
that he is temporarily and totally disabled. For the reasons
discussed herein, we affirm the opinion and award of the Industrial
Defendant-employer, APAC, hired Hunt in September 2001 as a
traffic flagger. Shortly thereafter, Hunt obtained his
certification to operate heavy equipment and began operating a
backhoe. Aside from his duties as a heavy equipment operator, Huntalso transported temporary workers APAC hired from the MegaForce
employment agency to and from job sites. APAC compensated Hunt by
adding one additional hour to his time card for each day he
transported MegaForce employees. Initially, Hunt used his own
vehicle to transport workers. However, in the spring of 2002, APAC
provided him with a company truck to transport MegaForce employees.
As part of the arrangement, APAC paid for the gas, oil, and other
maintenance of the vehicle. Each employee, including Hunt, was
required to pay $3.00 per day for each day they were provided
transportation. APAC continued to compensate Hunt for one hour
each day that he drove the truck. Hunt was not allowed to use the
truck for personal reasons without prior approval from his
employer, nor were his family members allowed to ride in the truck
at any time. APAC tracked the truck's mileage each day and over
weekends to ensure Hunt did not operate the truck for personal use.
On Friday, 4 October 2002, after leaving work, Hunt traveled
eastbound on Highway 41 in Robeson County and took MegaForce
employee Dennis Locklear home. Both Mr. Locklear and Hunt lived
off of Highway 41. After dropping off Mr. Locklear, Hunt turned
back onto Highway 41 and proceeded east towards his home. Shortly
thereafter, he was involved in a motor vehicle accident. According
to Hunt, his body was thrown forward and then back, striking the
steering wheel. As a result of the accident, Hunt felt pain in his
lower back and shortly thereafter experienced numbness radiating
down his left leg. Conflicting evidence was presented as to
whether Hunt's son was in the vehicle at the time of the accident. While Hunt awaited the arrival of the police, one of his
employer's foremen passed the scene of the accident and stopped to
offer assistance. Hunt used the foreman's phone to call APAC's
safety director. He informed the safety director of the accident
and requested authorization to obtain medical treatment. The
safety director told Hunt to wait until Monday so that he could
submit to a mandatory drug test at APAC's office. Over the weekend
Hunt's pain progressively worsened. On Sunday, Hunt was called at
home and told to report to a job site in Bladenboro. Hunt worked
light duty on Monday and Tuesday flagging traffic. On Wednesday,
9 October 2002, Hunt received a call from his employer, telling him
to report to the office in Fayetteville for a mandatory drug test.
At that time, Hunt again requested authorization for medical
treatment, but was told he needed to wait. When Hunt arrived at
his employer's office, he was informed he had been terminated due
to his poor driving record. Prior to Hunt's accident on 4 October
2002, APAC had implemented a continuing driver qualification policy
in which any employee who was charged with eight points from the
employer's point schedule in a twenty-four month period would be
disqualified from driving a company vehicle. APAC terminated Hunt
for violating the continuing driver qualification policy by
receiving eight company driving points within twenty-four months
and for having his son, an unauthorized person, in the company
vehicle. Defendant asserted that Hunt accumulated these eight
points for the following reasons: three points for the 4 October
2002 accident, three points for an accident occurring on 21 March2002, and two points for a speeding violation on 23 April 2002.
Conflicting evidence was presented as to the validity of two of the
The day Hunt was notified of his termination he again
requested permission to seek medical treatment. Hunt testified he
was told to speak with the human resources manager, who informed
him that since he had been terminated she could not speak with him
regarding a worker's compensation claim. Immediately thereafter,
Hunt went to the emergency room at Southeastern Regional Medical
Center. He was diagnosed with a muscle strain and discharged. He
was not restricted from working.
On 4 November 2002, Hunt saw Dr. H.M. Livingston, Jr., a
chiropractor. He complained of radiating lower back pain and
numbness in his left leg. Dr. Livingston opined Hunt was unable to
work at any type of employment. Hunt last saw Dr. Livingston for
treatment on 13 January 2003. At that time, Dr. Livingston felt
Hunt had not reached maximum chiropractic improvement based on his
continued complaints of pain. Hunt next received treatment at
Carolina Complete Rehabilitation Center where he attended physical
therapy eleven times between 4 March and 10 April 2003. On 13 May
2003, Hunt underwent a functional capacity evaluation, from which
his doctor concluded he was able to work at the light physical
demand level for an eight-hour day. However, Hunt's position with
defendant-employer was considered heavy duty and not within his
physical work restraints. On 4 December 2003, over one year after the accident, Hunt was
evaluated by Dr. Andrew Bush. Dr. Bush noted inconsistencies in
the records and the physical examination and was concerned with the
lack of objective findings and the fact no MRI had been performed.
He recommended Hunt undergo an MRI and a second functional capacity
exam before he would be able to give an opinion as to Hunt's
Following Hunt's termination, he began receiving unemployment
compensation benefits starting 14 October 2002. As a condition of
receiving those benefits, he conducted two job searches per week,
but was unable to secure any employment.
The Commission determined Hunt suffered a compensable injury,
finding that his automobile accident arose out of and in the course
of his employment. The Commission awarded Hunt on-going temporary
total disability benefits at the weekly rate of $297.86, subject to
defendant receiving a credit for unemployment benefits that Hunt
It also ordered defendants to pay for all reasonably
necessary medical and vocational rehabilitation expenses Hunt had
incurred or would incur as a result of his compensable injury.
Our review of an award by the Industrial Commission is limited
to: (1) whether there was any competent evidence before the
Commission to support its findings; and (2) whether such findings
support its legal conclusions. Lewis v. Orkand Corp.
, 147 N.C.
App. 742, 744, 556 S.E.2d 685, 687 (2001). Findings of fact froman opinion and award of the Commission, if supported, are deemed
conclusive, even if there is evidence that would support findings
to the contrary. Id
On appeal this Court does not weigh the
evidence, as the Commission is the sole judge of the weight and
credibility of the evidence[.] Deese v. Champion Int'l Corp.
352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). Instead our duty
goes no further than to determine whether the record contains any
evidence tending to support the finding. Adams v. AVX Corp.
N.C. 676, 681, 509 S.E.2d 411, 414 (1998).
We must view the
evidence in the light most favorable to the plaintiff, who is
to the benefit of every reasonable inference that may be
drawn therefrom. Id
I. Arising Out of the Course and Scope of Employment
In their first argument, defendants contend the Commission
erred in determining the accident arose out of the course and scope
of employment because the automobile accident occurred after Hunt
had completed his duties for his employer and while driving home.
'An employee is entitled to workers' compensation benefits
for injuries sustained in an accident arising out of and in the
course of [their] employment.' Stanley v. Burns Int'l Sec.
, 161 N.C. App. 722, 724, 589 S.E.2d 176, 178 (2003)
Arising out of refers to the cause of the
accident, such that there is a causal connection between the
accident and the employment[.] Battle v. Electric Co.
, 15 N.C.
App. 246, 250, 189 S.E.2d 788, 791 (1972). In the course ofrefers to the time, place, and circumstances of the accident.
. The accident will be deemed to have arisen in the course of
the employment if it occurs while the employee is engaged in a
duty which he is authorized or directed to undertake or in an
activity incidental thereto. Id
an injury arises out of
and in the course of an employee's job presents a mixed question of
law and fact. Creel v. Town of Dover
, 126 N.C. App. 547, 552, 486
S.E.2d 478, 481 (1997). As such, our review is confined to whether
the findings and conclusions are supported by the evidence. Id
Workers' compensation rules are subject to liberal
construction. Munoz v. Caldwell Mem'l Hosp.
, ___ N.C. App. ___,
___, 614 S.E.2d 448, 452-453 (2005). Thus, [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.' Id
(quoting Kiger v. Service Co.
, 260 N.C.
760, 762, 133 S.E.2d 702, 704 (1963)).
As a general rule, an injury by accident is not compensable
where the employee is injured while traveling to or from work, as
it is not considered an injury that arises out of or in the course
of employment. Dunn v. Marconi Communications, Inc.
, 161 N.C. App.
606, 610, 589 S.E.2d 150, 154 (2003). This is known as the coming
and going rule. Id
. There are several exceptions to this general
rule, including: the traveling salesman exception, the
contractual duty exception, the special errand exception, and
the dual purpose exception. Id
. at 611, 589 S.E.2d at 154. Under the contractual duty exception, where an employee is
injured while coming or going to work, such injuries will be deemed
compensable if the employer is under a contractual duty to provide
transportation for his employees or the employer's provision of
transportation is incident to the contract of employment.
Robertson v. Shepherd Constr. Co.
, 44 N.C. App. 335, 337, 261
S.E.2d 16, 18 (1979). The transportation must be provided as a
matter of right; if it is merely permissive, gratuitous, or a mere
accommodation, the employee is not in the course of employment.
In the instant case, defendant-employer's provision of a
company vehicle to Hunt was not merely gratuitous, nor simply an
accommodation. When this accident occurred, APAC provided Hunt a
company vehicle to transport the MegaForce employees and himself to
and from its work site. Defendant had to pay $3.00 per day for
each day he used the company truck to get to work, but he was also
compensated by the addition of one hour to his time card for each
day he transported the MegaForce employees. Further, the accident
in the course of employment since it occurred while Hunt
was engaged in a duty which he was authorized and directed to
undertake, or at the very least, he was engaged in an activity
incidental thereto. As part of
Hunt's job, he was directed to
drive the company truck to and from work each day.
part of his job also included picking up and returning the
MegaForce employees to work each day. This included drivinghimself home, since this is where he was required to park the
company truck when he was not at the work site.
It is also useful to consider, when viewing all the
circumstances, whether the employer is deemed to have retained
authority over the employee. Shaw v. Smith & Jennings, Inc.
N.C. App. 442, 446, 503 S.E.2d 113, 117 (1998). If an employer is
found to have retained such authority, the injury is generally
deemed compensable. Id
. In the instant case, defendant-employer
retained authority over Hunt for the entire time he drove the
company truck. Hunt was not allowed to use the vehicle for
personal errands or to have family members in the vehicle at any
time without first obtaining APAC's permission. Defendant-employer
checked the mileage on the vehicle each day to insure Hunt was in
compliance with these restrictions.
We hold there was competent evidence in the record to support
the finding that Hunt sustained an injury by accident arising out
of and in the course of his employment with defendant-employer.
Defendants further contend that even if we determine Hunt's
job responsibilities continued until he reached his home, the
Commission's findings of fact 8 and 9 were contradictory as to
whether Hunt had completed a personal deviation.
Findings of fact 8 and 9 read as follows:
8. As plaintiff was standing at the accident
site waiting for the trooper to arrive, his
wife drove by on the way to take their son,
Dakota Hunt, to Dakota's grandmother's house.
She was taking the child to the child's
grandmother's house because plaintiff was not
at his house, having been delayed by the
accident. Plaintiff's wife left Dakota withhim, since Dakota was to spend the night with
plaintiff. A little while later, a friend
drove by and stopped. The friend volunteered
to take Dakota home and plaintiff accepted the
offer. When the trooper asked whether anyone
else had been with him, plaintiff mentioned
that Dakota had been with him. It might well
have been that plaintiff was fearful that this
information might be misinterpreted by his
boss, as certainly was the case if Dakota
indeed had not been in the truck that day but
merely had been at the accident scene for a
time. Thus, the trooper's testimony is not
inconsistent with plaintiff's testimony on
this point. The Full Commission finds
plaintiff's testimony concerning Dakota to be
credible and is unable to find any credible
evidence that plaintiff had departed from the
course and scope of his employment when the
9. Dakota's grandmother lives on 5th
Lumberton. Locklear lives on or near Meadow
Road. Plaintiff lives at 101 Ricco Lane, near
Lumberton. The Full Commission takes judicial
notice of official N.C. Department of
Transportation road maps for Robeson County.
See State v. Martin
, 270 N.C. 286, 154 S.E.2d
96 (1967), and State v. Saunders
, 245 N.C.
338, 95 S.E.2d 876 (1957). Such maps show
that Highway 74 and the site of work that day
is southwest of Lumberton. The maps further
show that a direct route from the worksite to
plaintiff's home, encompassing a drop-off of
Locklear on Meadow Road, is from Highway 74
north on I-95 to Fifth Street. Fifth Street
becomes Highway 41 as a person heads east out
of Lumberton, and Highway 41 passes by Meadow
Road on its way to Old Allentown Road, which
is a direct and natural turnoff from Highway
41 leading to 101 Ricco Lane. The accident
occurred at the intersection of Highway 41 and
PRP 1954 (Moores Lane), which is between
Meadow Road and Old Allentown Road. Even if
plaintiff had picked up his son at the child's
grandmother's house on Fifth Street, any
alleged departure from the course and scope of
employment ended when he departed Fifth Street
headed for Meadow Road to drop off Locklear,
long before the accident occurred. The Commission's finding regarding Hunt's son is found in
finding of fact 8. It found that Hunt's wife dropped their son off
with Hunt after
the accident had taken place. Finding of fact 9
simply points out that assuming arguendo
that the facts were as
defendants asserted, it would not change the result of the case.
These are not contradictory findings. It is the role of the
Commission to determine the weight and credibility of the evidence.
, 352 N.C. at 116, 530 S.E.2d at 553. Although there was
contradictory evidence in the record as to whether the child was in
the vehicle at the time of the accident, we hold the Commission's
clear factual finding, that Hunt's son was not a passenger in the
truck at the time of the accident, is supported by the evidence and
is controlling. This argument is without merit.
II. Proof of Existence and Extent of Disability
In defendants' second argument, they contend the Commission
erred in determining Hunt had proven both the existence and extent
of his disability. We disagree.
First, defendants contend any loss in wage earning capacity
that Hunt suffered was attributable to his termination from APAC
for violation of its driving policy and not from any disability
resulting from the motor vehicle accident. Defendants argue Hunt
has constructively refused to accept suitable employment and is not
entitled to benefits.
To substantiate their argument, defendants 'must first show
that the employee was terminated for misconduct or fault, unrelated
to the compensable injury, for which a nondisabled employee wouldordinarily have been terminated.' Frazier v. McDonald's
, 149 N.C.
App. 745, 751, 562 S.E.2d 295, 299 (2002) (quoting Seagraves v.
Austin Co. of Greensboro
, 123 N.C. App. 228, 234, 472 S.E.2d 397,
401 (1996)). The Commission found as fact that:
13. Prior to October 4, 2002 defendant-
employer had implemented a continuing driver
qualification policy in which any employee who
was charged with eight points from a violation
or violations using a point schedule in any
twenty-four month period would be disqualified
from driving a company-owned vehicle. The
policy does not indicate that termination
would result after eight points. Plaintiff
received three points for an accident that
occurred on March 21, 2002, for which he was
at fault. Plaintiff received two points for a
speeding violation, with which he was charged
on April 23, 2002. However, plaintiff was not
convicted of this speeding violation, but
defendant-employer did not remove the two
points from his record. Thereafter, plaintiff
received three points for the accident on
October 4, 2002. Thus, plaintiff only had six
points, not eight points.
14. Defendants failed to prove that a non-
injured employee would have been terminated
for the same conduct as plaintiff.
Steven Walters, Sr., the Director of Environment, Health and
Safety, testified that if an employee accumulated as many as eight
points in a two-year period, their driving privileges could be
revoked. Instead of being punished by having his driving
privileges with APAC revoked, Hunt's employment was terminated.
Mr. Walters testified he did not know why Hunt had been terminated
rather than have his driving privileges revoked. We hold that
there is competent evidence in the record to support the
Commission's finding and conclusion that defendants failed to show
that Hunt's termination was for misconduct or fault, unrelated tohis compensable injury, for which a nondisabled employee would
ordinarily have been terminated. Accord id
Defendants further argue that Hunt failed to prove his
inability to find work in other employment was caused by a
condition resulting from the accident.
An employee injured during the course of his employment is
disabled under the Workers' Compensation Act if the injury results
in an incapacity . . . to earn the wages which the employee was
receiving at the time of injury in the same or any other
employment. N.C. Gen. Stat. § 97-2(9) (2005). Thus, disability
under the Act means the impairment of the injured employee's
earning capacity rather than physical disablement. Russell v.
Lowes Prod. Distribution
, 108 N.C. App. 762, 765, 425 S.E.2d 454,
457 (1993). The employee bears the burden of demonstrating he is
unable to earn the same wages he earned prior to being injured,
either in the same employment or in other employment. Id
employee can meet this burden by producing evidence that he is
capable of some work, but he has been unsuccessful in his effort to
obtain employment after reasonable effort on his part. Id
Viewing the evidence in the light most favorable to Hunt, it
shows he was able to do some work. Based on the results from his
functional capacity evaluation, he could work at light physical
demand level for an eight-hour day.
ston first opined
that on 4 November 2002, Hunt was unable to work in any type of
employment. As of 13 January 2003 when Dr. Livingston last
examined Hunt, he felt Hunt had not reached maximum chiropracticimprovement and needed further evaluation and treatment. The
Commission afforded Dr. Livingston's opinion regarding Hunt's
disability more weight than Dr. Bush's since he had examined and
treated Hunt closer to the time of accident. Credibility
determinations made by the Commission are binding on this Court.
, 352 N.C. at 116, 530 S.E.2d at 553.
Further, as a condition of Hunt's receipt of unemployment, he
was required to conduct at least two job searches per week. Hunt
meet this condition. However, despite his efforts, he was unable
to obtain employment. In order to meet his burden of demonstrating
he was disabled, Hunt only had to show he is capable of some
work, but has been unsuccessful, despite reasonable efforts, to
obtain employment. Russell
, 108 N.C. App. at 765, 425 S.E.2d at
457. Hunt presented evidence from Dr. Livingston that he was
capable of doing light duty work. He also presented competent
evidence that he had made reasonable efforts to find employment,
although he had been unsuccessful.
Once Hunt met his burden of proof, the burden shifted to
defendants to 'come forward with evidence to show not only that
suitable jobs are available, but also the plaintiff is capable of
getting one. . . .' Workman v. Rutherford Elec. Membership Corp.
___ N.C. App. ___, ___, 613 S.E.2d 243, 250 (2005). Defendants did
not present any evidence that there are suitable jobs available for
Hunt. Consequently, there exists evidence in the record supporting
the Commission's findings that Hunt was disabled as a result of hiswork-related injury and entitled to workers' compensation benefits.
This argument is without merit.
For the reasons discussed herein, we affirm the opinion and
award of the Industrial Commission.
Chief Judge MARTIN and Judge MCGEE concur.
Report per Rule 30(e).
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