Graven v. N.C. Dept. of Public Safety-Division of Law Enforcement , 235 N.C. App. 37 ( 2014 )

NO. COA14-6
NORTH CAROLINA COURT OF APPEALS
Filed: 29 July 2014
JOHN E. GRAVEN, JR. and
KATHRYN L. WALL,
Employees, Plaintiffs
v. Industrial Commission
I.C. File No. X22254, X21936
N.C. DEPT. OF PUBLIC
SAFETY-DIVISION OF LAW
ENFORCEMENT (formerly N.C.
Dept. of Crime Control and
Public Safety),
Employer, Defendant
and
CORVEL CORPORATION,
Third-Party Administrator.
Appeal by Plaintiffs from opinion and award entered 2
October 2013 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 5 May 2014.
Patterson Harkavy LLP, by Narendra K. Ghosh; Baddour,
Parker, & Hine, P.C., by Phillip A. Baddour, Jr.; and
Narron, O’Hale & Whittington, P.A., by O. Hampton
Whittington, Jr., for Plaintiffs-Appellants.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Sharon Patrick-Wilson, for Defendant-
Appellee.
DILLON, Judge.
-2-
John E. Graven, Jr. and Kathryn L. Wall (“Plaintiffs”)
appeal from the North Carolina Industrial Commission’s opinion
and award denying their claims for benefits. For the following
reasons, we affirm.
I. Background
Plaintiffs filed workers’ compensation claims for injuries
sustained on 16 December 2010, which were subsequently denied by
their employer, the North Carolina Department of Public Safety
(“Defendant”). Plaintiffs’ claims were consolidated for hearing
before Deputy Commissioner Stephen T. Gheen, who entered an
opinion and award concluding inter alia that Plaintiffs each
sustained a compensable work-related injury by accident arising
out of and in the course of their employment.
On 15 March 2013, Defendant employer appealed to the Full
Commission (“the Commission”). On 2 October 2013, the
Commission filed an opinion and award, reversing the deputy
commissioner’s decision and denying Plaintiffs workers’
compensation benefits. A summary of the parties’ stipulations
and uncontested findings of fact in the Commission’s opinion and
award tended to show as follows:
Plaintiffs worked as technical support analysts in the
State Highway Patrol (“SHP”), a division of Defendant, as
-3-
technical support analysts with the Technical Services Unit
providing software training to State Troopers and civilians in
Raleigh and around the State. They worked four days per week,
from 7:00 a.m. until 5:00 p.m., and were permitted to take a 30-
minute paid lunch break.
In December 2010, Plaintiffs’ supervisor sent out three
emails over the course of several days inviting employees,
including Plaintiffs, to attend a lunch (hereinafter the
“holiday lunch”) to be held at a particular public restaurant on
16 December 2010 “to celebrate the department’s hard work.”
Attendance was voluntary, and attendees were required to pay for
their own meals, though they benefitted from a group discount
offered by the restaurant. Plaintiffs decided to attend the
holiday lunch and rode to the restaurant in a state-owned
vehicle, which had been signed out by another SHP employee.
Less than half of the SHP employees who were invited actually
attended the holiday lunch. Attendance was not taken at the
lunch. No awards were presented at the lunch. No formal
speeches were given at the lunch; however, three supervisors
made brief remarks, welcoming the attendees and thanking them
for their service.
-4-
After the lunch, while Plaintiffs were traveling on a
public street returning to the SHP office in the state-owned
vehicle, the driver, who was also a SHP employee, encountered a
patch of ice and lost control of the vehicle, causing it to
collide with a tree. As a result of this accident, Plaintiff
Graven was paralyzed from the chest down, and Plaintiff Wall
sustained a concussion and some cuts and bruises. SHP employee
Sergeant Taylor testified that even though Plaintiffs rode in a
state-vehicle it was not authorized for use to attend the
holiday lunch and if the vehicle had been requested for the
purpose of attending the holiday lunch that request would have
been denied.
Based on its findings, the Commission concluded that
Plaintiffs’ injuries did not arise out of or occurred within the
course and scope of their employment. Plaintiffs appeal from
the Commission’s opinion and award denying them coverage.
II. Standard of Review
“[W]hen reviewing Industrial Commission decisions,
appellate courts must examine whether any competent evidence
supports the Commission’s findings of fact and whether those
findings support the Commission’s conclusions of law.” Frost v.
Salter Path Fire & Rescue, 361 N.C. 181, 183, 639 S.E.2d 429,
-5-
432 (2007) (citation, brackets, ellipsis, and quotation marks
omitted). Unchallenged findings of fact, however, “are presumed
to be supported by competent evidence and are binding on
appeal.” Bishop v. Ingles Markets, Inc., ___ N.C. App. ___,
___, 756 S.E.2d 115, 118 (2014) (citation and quotation marks
omitted).
In the present case, Plaintiffs challenge certain findings
made by the Commission and also the Commission’s conclusion that
Plaintiffs failed to show by the preponderance of the evidence
that their “injuries arose out of and or occurred within the
course and scope of their employment.” Accordingly, our review
will consist of determining whether the challenged findings are
supported by the evidence and whether the sustained challenged
findings and the unchallenged findings and stipulations support
the Commission’s conclusion.
III. Analysis
The workers’ compensation system in North Carolina is “a
creature of statute enacted by our General Assembly” and
codified in the Workers’ Compensation Act. Frost, 361 N.C. at
184, 639 S.E.2d at 432. Our Supreme Court has stated as follows
regarding this system:
The social policy behind the Workers’
Compensation Act is twofold. First, the Act
-6-
provides employees with swift and certain
compensation for the loss of earning
capacity from accident or occupational
disease arising in the course of employment.
Second, the Act insures limited liability
for employers. Although, the Act should be
liberally construed to effectuate its
intent, the courts cannot judicially expand
the employer’s liability beyond the
statutory perimeters.
Id. (quoting Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 190,
345 S.E.2d 374, 381 (1986)).
The remedies provided under the Act do not apply to all
injuries that may be suffered by an employee, but only to those
injuries which are caused by accidents “arising out of and in
the course of the employment[.]” N.C. Gen. Stat. 97-2(6)
(2013). “[W]hether an injury arose out of and in the course of
employment is a mixed question of law and fact[.]” Fortner v.
J.K. Holding Co., 319 N.C. 640, 643, 357 S.E.2d 167, 168 (1987)
(citations and quotation marks omitted). The burden is on the
employee to prove by a preponderance of the evidence that the
accident causing him injury arose out of and occurred during the
course of his employment. Taylor v. Twin City Club, 260 N.C.
435, 437, 132 S.E.2d 865, 867 (1963); Adams v. Metals USA, 168
N.C. App. 469, 475, 608 S.E.2d 357, 361 (2005). In the present
case, we must determine whether the Commission erred in its
conclusion that Plaintiffs failed to meet their burden of
-7-
proving that their injuries sustained in the 16 December 2010
automobile accident while returning to work from a social event
arose out of and occurred in the course of their employment and
therefore covered under the Workers’ Compensation Act.
In its opinion and award, the Commission cited two cases
where our appellate courts have considered whether an accident
occurring at a social event arises out of or is in the course of
employment: Perry v. American Bakeries Co., 262 N.C. 272, 136
S.E.2d 643 (1964), decided by our Supreme Court, and Chilton v.
School of Medicine, 45 N.C. App. 13, 262 S.E.2d 347 (1980),
decided by this Court.
In 1964, our Supreme Court stated in Perry as follows:
Where, as a matter of good will, an employer
at his own expense provides an occasion for
recreation or an outing for his employees
and invites them to participate, but does
not require them to do so, and an employee
is injured while engaged in the activities
incident thereto, such injury does not arise
out of the employment.
Perry, 262 N.C. at 275, 136 S.E.2d at 646 (emphasis added and
citations omitted). Sixteen years later in 1980, we approved
and adopted in Chilton a method of analysis for determining
whether employee injuries incurred at employer-sponsored
recreational and social activities arise out of and in the
course of employment. Specifically, we enumerated from 1A
-8-
Larson, Workmen’s Compensation Law § 22.23, six factors to
assist a court in making this determination:
(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. maintaining 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?
45 N.C. App. at 15, 262 S.E.2d at 348. More recently, in 2007,
our Supreme Court in Frost, supra, stated that the factors we
outlined in Chilton were consistent with its 1964 holding in
Perry. The Supreme Court in Frost, however, stopped short of
-9-
expressly adopting the Chilton factors because its analysis in
Perry was sufficient to resolve the case before it; but the
Supreme Court did state that the factors adopted by this Court
in Chilton “may serve as helpful guideposts in this inquiry[.]”
361 N.C. at 186-87, 639 S.E.2d at 433-34.
In the present case, the Commission made some findings
regarding the factors considered by the Supreme Court in Perry
as well as many of the six Chilton factors, answering most in
the negative. For instance, the Commission found that
attendance at the holiday lunch was voluntary and no attendance
was taken. Further, in its finding of fact 22, the Commission
stated as follows:
22. The Commission finds that while
Plaintiffs were traveling to the holiday
lunch, they were doing so for their own
benefit. Although Plaintiffs testified that
they attended the holiday lunch because they
felt it was important for the morale of the
department, less than half of the employees
attended the lunch, and the undersigned find
that the benefit to the employer, if any,
was de minimus.
Plaintiffs specifically challenge the conclusion contained in
finding of fact 22 that the holiday lunch was for the benefit of
the employees and that the only benefit to the employer was de
minimus at best. We believe, however, that this conclusion is
supported by the Commission’s findings and the evidence.
-10-
Specifically, the sixth factor in Chilton states that for a
social event to be considered a benefit to the employer in the
context of determining whether an injury at the event is covered
by the Workers’ Compensation Act, the benefit must not be
“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 15, 262
S.E.2d at 350. It is undisputed that at least three SHP
supervisors gave brief remarks before and during the lunch
thanking employees for their dedication, but there was testimony
that these remarks did not rise to the level of a speech. Also,
no awards were handed out at the holiday lunch and attendees
paid for their own meals.1 2
These findings answering some of
1
Plaintiffs argue that Finding of Fact 26, which states that
“[t]he injuries sustained by Plaintiffs on December 16, 2010
occurred during a meal break that Plaintiffs were free to use as
they pleased” is not supported by the evidence because they were
paid for their attendance, the holiday lunch lasted longer than
their normal 30-minute paid lunch break, and they were not
otherwise allowed to spend more than 30 minutes for a lunch
break that day “as they pleased.” We agree that the evidence
conclusively establishes that Plaintiffs were not free to spend
more than 30 minutes on the day of 16 December 2010 for a lunch
break any way they pleased. Notwithstanding, we believe that
the fact that SHP employees attending the holiday lunch were
compensated for the long lunch break further supports the
conclusion that the lunch was for the benefit of the employees.
See Smith v. Decotah Cotton Mills, 31 N.C. App. 687, 690, 230
S.E.2d 772, 774 (1976) (stating that “[t]he fact that plaintiff
was being paid during the break is not sufficient to cause [an]
-11-
the Chilton factor questions establish that the holiday lunch
did not arise out of or in the course of Plaintiffs’ employment.
Further, we believe that the holiday lunch is similar to
the type of event that is described in Perry, quoted above,
which the Supreme Court stated would not arise out of the
employment. Specifically, here, though the holiday lunch was
not provided at Defendant’s expense, Defendant did provide “an
occasion” for the employees to participate in “an outing” which
“was a matter of good will” in that, as the Commission
determined, it was for the benefit of the employees and not
Defendant. Perry, 262 N.C. at 275, 136 S.E.2d at 646. However,
we note that Plaintiffs were not injured at the social event but
while traveling back to the workplace. Neither party cites to
any case where an employee was injured while traveling between
their workplace and a social event occurring during the workday.
In North Carolina, the general rule is that “[i]njuries
received by an employee while traveling to or from his place of
employment are usually not covered by the [Workers’
Compensation] Act unless the employer furnishes the means of
accident to arise out of her employment”).
2
Plaintiffs also challenge finding of fact 23 that
“Plaintiffs exposure to the risk of highway travel is a risk to
which the general public is equally exposed,” arguing that this
finding is a conclusion of law. In either case, we address this
issue of causation below in this opinion.
-12-
transportation as an incident of the contract of employment” or
if such injuries are sustained while the employee is “on
premises owned or controlled by the employer[.]” Strickland v.
King, 293 N.C. 731, 733, 239 S.E.2d 243, 244 (1977). This
general rule has been referred to as the “coming and going” rule
by our Supreme Court. See, e.g., Royster v. Culp, Inc., 343
N.C. 279, 281, 470 S.E.2d 30, 31 (1996). Our Courts have
explained that “the question of arising out of is not satisfied
. . . where the injury is due to the hazards of the public
highway – risks common to the general public.” Harless v.
Flynn, 1 N.C. App. 448, 458, 162 S.E.2d 47, 54 (1968) (emphasis
in original). See Roberts v. Burlington Industries, 321 N.C.
350, 358, 364 S.E.2d 417, 422-23 (1988); Rose v. City of Rocky
Mount, 180 N.C. App. 392, 401, 637 S.E.2d 251, 257 (2006), disc.
review denied, 361 N.C. 356, 644 S.E.2d 232 (2007).
The “going and coming” rule, however, is subject to a
number of exceptions. For instance, there is “the ‘traveling
salesman’ exception, the ‘contractual duty’ exception, the
‘special errand’ exception, and the ‘dual purpose’ exception.”
Dunn v. Marconi, 161 N.C. App. 606, 611, 589 S.E.2d 150, 154
(2003).
-13-
The “traveling salesman” exception applies where an
employee’s “work entails travel away from the employer’s
premises [and does not involve] . . . a distinct departure [to
make] . . . a personal errand.” Id. at 612, 589 S.E.2d at 155(citation omitted). The “special errand” exception applies
where the employee is “engaged in a special duty or errand for
his employer.” Id. (citation omitted). The “contractual duty”
exception applies where “the employer furnishes the means of
transportation as an incident of the contract of employment.”
Id. (citation omitted and emphasis added). However, this
“contractual duty” exception does not generally apply where the
transportation is “provided permissively, gratuitously, or as an
accommodation[.]” Hunt v. Tender Loving Care, 153 N.C. App.
266, 270, 569 S.E.2d 675, 679 (citation omitted), disc. rev.
denied, 356 N.C. 436, 572 S.E.2d 784 (2002). The “dual purpose”
exception applies in certain circumstances where a trip serves
“both business and personal purposes” and where it involves a
“service to be performed for the employer [that] would have
caused the journey to be made by someone even if it had not
coincided with the employee’s personal journey.” Dunn, 161 N.C.
App. at 612-13, 589 S.E.2d at 155 (citation omitted).
-14-
In the present case, the fact that Plaintiffs were riding
in an automobile provided by SHP does not bring the accident
within the “contractual duty” exception since the transportation
to the holiday lunch was not “an incident of the contract of”
their employment but, as found by the Commission, was provided
as an accommodation, as testified by SHP employee Sergeant
Taylor. See Hunt, supra. None of the other exceptions neatly
fit the present situation since Plaintiffs were not traveling to
perform work for their employer but were attending a social
event.
Plaintiffs argue that the “coming and going” rule does not
apply because “[i]n selecting the location and date of the
holiday lunch, [D]efendant increased [P]laintiffs’ risk of
having a motor vehicle accident as they did[,]” noting that the
location was a 20-30 minute drive from the workplace and that
SHP employees would not ever travel such a distance during their
lunch break since they only receive 30 minutes for lunch.
Essentially, Plaintiffs are arguing that the accident arose out
of their employment under the “increased risk” analysis that has
been applied by our Supreme Court. See Roberts v. Burlington
Industries, 321 N.C. 350, 358, 364 S.E.2d 417, 422-23 (1988).
-15-
Our Supreme Court in Roberts described the “increased risk”
approach as follows:
Under [an “increased risk analysis], 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. The causative danger must be
peculiar to the work and not common to the
neighborhood.”
Id. (citations, brackets, and quotation marks omitted). We
believe, however, that the “increased risk” analysis does not
apply where an employee voluntarily attends a social event
which, itself, does not arise out of his employment and is
injured due to a risk that is common to the public while
traveling on a public road to that event. Therefore, this
argument is overruled.
We believe that the Commission’s consideration of Perry v.
American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643 (1964), and
Chilton v. School of Medicine, 45 N.C. App. 13, 262 S.E.2d 347(1980) was appropriate as it first established that the social
event itself did not arise out of or in the course of
Plaintiffs’ employment. Further, the application of the “going
and coming” rule shows that Plaintiffs’ injuries were not
covered under the Workers’ Compensation Act where they were the
-16-
result of an accident caused by a risk that is common to the
public occurring while they were traveling on a public road
while returning to their workplace from that social event.
For the reasons stated above, we hold that the Commission’s
conclusion that Plaintiffs failed to meet their burden of
proving that the accident causing their injuries arose out of
and occurred in the course of their employment is supported by
the Commission’s findings; and, accordingly, the opinion and
award of the Commission is affirmed.
AFFIRMED.
Chief Judge MARTIN and Judge STEELMAN concur.