White v. Battleground Veterinary Hospital

303 S.E.2d 547 (1983)

William Taylor WHITE, Employee-Plaintiff, Appellee
v.
BATTLEGROUND VETERINARY HOSPITAL, Employer; and Great American Insurance Company, Carrier, Defendants, Appellants.

No. 8210IC676.

Court of Appeals of North Carolina.

June 21, 1983.

Joseph P. Shore, and Smith, Moore, Smith, Schell & Hunter by Richmond G. Bernhardt, Jr., Greensboro, for plaintiff.

Womble, Carlyle, Sandridge & Rice by Allan R. Gitter and Richard T. Rice, Winston-Salem, for defendants.

WELLS, Judge.

Defendants' appeal raises the question of whether the Commission properly found and concluded that plaintiff's injury was caused by an accident arising out of and in the course of his employment with defendant employers.

On appeal from the Industrial Commission, the findings of the Commission are conclusive if supported by competent evidence and when the findings are so supported, appellate review is limited to review of the Commission's legal conclusions. Walston v. Burlington Industries, 304 N.C. 670, 285 S.E.2d 822 (1982); Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982). Findings of fact may be set aside by the appellate court only when there is no competent evidence to support them. Click v. Freight Carriers, 300 N.C. 164, 265 S.E.2d 389 (1980).

In its recent decision in Hoffman v. Truck Lines, Inc., 306 N.C. 502, 293 S.E.2d 807 (1982), our Supreme Court recited the law that dictates our approach in the present case as follows:

"Whether an injury arose out of and in the course of employment is a mixed question of law and fact, and where there is evidence to support the Commissioner's findings in this regard, we are bound by those findings." Barham v. Food World, 300 N.C. 329, 331, 266 S.E.2d 676, 678 (1980). An appellate court is, therefore, justified in upholding a compensation award if the accident is "fairly traceable to the employment as a contributing cause" or if "any reasonable relationship to employment exists." Kiger v. Service Co., 260 N.C. 760, 762, 133 S.E.2d 702, 704 (1963). In other words, compensability of a claim basically turns upon whether or not the employee was acting for the benefit of his employer "to any appreciable extent" when the accident occurred. Guest v. Iron & Metal Co., 241 N.C. 448, 452, 85 S.E.2d 596, 600 (1955).

Some risk inherent to the employment must be a contributing proximate cause of the accident and the risk must be enhanced by the employment and one to which the worker would not have been equally exposed to apart from the employment. Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977).

When the employee is injured during a "special errand" undertaken in the furtherance of the employer's business interests, he is entitled to compensation notwithstanding the fact that he is not upon the premises of his employer. Powers v. Lady's Funeral Home, 306 N.C. 728, 295 S.E.2d 473 (1982); see also Felton v. Hospital Guild of Thomasville, 57 N.C.App. 33, 291 S.E.2d 158, affirmed without precedential value, 307 N.C. 121, 296 S.E.2d 297 (1982). The employee so injured is entitled to workers' compensation so long as he is performing duties of his employer at the time. Barham v. Food World, 300 N.C. 329, 266 S.E.2d 676 (1980).

The evidence before the Commission in the present case was not sufficient to support the finding that plaintiff went to purchase the paper for use in his employment. Rather, all the evidence showed was that plaintiff's errand was strictly personal and that the paper was to be used by the employees on their break time for personal reasons. The incidental benefits accruing to the employer—having available "lost and found" advertisements and having available old newsprint to use in animal cages—were not appreciable enough to make plaintiff's errand sufficiently work-related to justify compensation. The Commission erred in concluding that plaintiff's accident arose out of and in the course of his employment.

For the reason stated, the award of the Commission must be and is

Reversed.

BECTON and EAGLES, JJ., concur.