Aaron v. New Fortis Homes, Inc.

493 S.E.2d 305 (1997)

Thomas AARON, Employee, Plaintiff,
v.
NEW FORTIS HOMES, INC., Employer, and The Maryland Insurance Group, Insurance Carrier, Defendants.

No. COA96-1539.

Court of Appeals of North Carolina.

November 18, 1997.

Law Offices of Nancy P. White by Nancy P. White and J. David Stradley, Raleigh, for plaintiff-appellee.

Wishart, Norris, Henninger & Pittman, P.A. by W. Timothy Moreau, Charlotte, for defendant-appellants.

EAGLES, Judge.

We first consider whether the Commission erred in finding that plaintiff's injuries were caused by an accident arising out of and in the course of his employment with New Fortis Homes, Inc. The standard of appellate review of an opinion and award of the Industrial Commission is well established. Our review "is limited to a determination of (1) whether the Commission's findings of fact are supported by any competent evidence in the record; and (2) whether the Commission's findings justify its legal conclusions." Counts v. Black & Decker Corp., 121 N.C.App. 387, 389, 465 S.E.2d 343, 345, disc. review denied, 343 N.C. 305, 471 S.E.2d 68 (1996)(citing Watkins v. City of Asheville, 99 N.C.App. 302, 392 S.E.2d 754,disc. review denied, 327 N.C. 488, 397 S.E.2d 238 (1990)).

Defendants first contend that the so-called "Going and Coming" rule applies to bar plaintiff's claim, arguing that injuries occurring while a covered worker is traveling to and from his place of employment are not compensable. See Jennings v. Backyard Burgers of Asheville, 123 N.C.App. 129, 131, 472 S.E.2d 205, 207 (1996). Defendant further argues that the "special errand" exception to the "Going and Coming" rule does not apply. Defendant contends the accident did not arise in the course of employment because plaintiff was not performing any specific duties for defendant and that the trip did not benefit the employer. Further, defendant argues, under the "increased risk" analysis, the hazard was common and plaintiff was not exposed to a greater danger than that of the general public. See Roberts v. Burlington Industries, Inc., 321 N.C. 350, 358, 364 S.E.2d 417, 422-23 (1988). We are not persuaded.

The Industrial Commission concluded that the accident occurred while plaintiff was performing a special errand that benefitted the employer. There were sufficient findings of fact supported by competent evidence on the record to support that conclusion of law.

Ordinarily, an injury occurring while an employee travels to or from work does not arise in the course of employment and is not compensable. See Jennings, 123 N.C.App. at 131, 472 S.E.2d at 207. The evidence here showed that the automobile accident occurred as plaintiff was in route from the worksite to the hospital while transporting a fellow employee, McDuff. Furthermore, travel was not an incident of plaintiff's employment as a roofer and construction worker. See Hicks v. Brown Shoe Co., 64 N.C.App. 144, 147, 306 S.E.2d 543, 544 (1983), disc. review denied, 311 N.C. 304, 317 S.E.2d 680 (1984) (injury arose in course of employment where traveling shoe salesperson killed while driving from one sales call to another).

The journey here was brought into the course of employment because plaintiff was performing a "special errand" that directly benefitted the employer. See McBride v. Peony Corp., 84 N.C.App. 221, 352 S.E.2d 236 (1987). There was testimony that McDuff had been injured on the job and required medical attention and that treatment was necessary before work could continue. Further, by protecting the health of McDuff and obtaining proper treatment for his injury, New Fortis Homes' exposure to a more serious workers' compensation claim by McDuff was reduced. Accordingly, we conclude there was competent evidence of record and adequate findings of fact to support the Commission's conclusion that the automobile accident occurred while plaintiff was on a "special errand" for defendant-employer.

We next consider whether the Commission erred in finding that plaintiff's injuries were causally related to the automobile accident and that plaintiff remains incapable of earning any wages since the accident.

Defendants claim that plaintiff has failed to prove that his right knee problems were causally related to the automobile accident. The plaintiff had various degenerative changes and other conditions of the knee that predated the accident. Plaintiff's treating physician, Dr. Edmund Campion, testified that there was "absolutely no way of telling" whether plaintiff's knee problems were caused by an old injury or a new injury. Additionally, defendants claim that there is evidence that plaintiff is working. Accordingly, defendants argue that plaintiff obviously is capable of earning wages.

There is competent evidence to support the Commission's finding that plaintiff's knee injury is causally related to the automobile accident. Our Supreme Court stated the standard of medical proof in workers' compensation cases in Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 265 S.E.2d 389 (1980):

There must be competent evidence to support the inference that the accident in question resulted in the injury complained of, I. e., some evidence that the accident at least might have or could have produced the particular disability in question.

Id. at 167, 265 S.E.2d at 391. Dr. Campion testified that the plaintiff's injuries were "entirely consistent" with the automobile accident and could have been caused by the accident. Additionally, plaintiff testified that he had no ligament damage prior to the accident and that he had never before seen a doctor for knee problems or knee pain. Accordingly, we conclude that there was competent evidence of record and adequate findings of fact to support the Commission's conclusion that the plaintiff's knee injury was causally related to the automobile accident.

There was also competent evidence of record to support the Commission's finding that plaintiff remained totally disabled as of the date of the hearing. Dr. Campion restricted plaintiff from any work until he had knee surgery. As of the date of the hearing, the plaintiff had not yet had knee surgery and Dr. Campion's advice remained in effect. Accordingly, there was sufficient evidence to support the Commission's findings.

Finally, we consider whether the Commission erred in determining plaintiff's average weekly wage and in denying defendants' motion for a new hearing or to take additional evidence. The cause must be remanded for the taking of additional evidence on the issue of plaintiff's wages and benefits.

The Form 22 relied upon in determining plaintiff's average weekly wage included income from sources other than New Fortis Homes, Inc. The calculation of an employee's average wage is governed by G.S. 97-2(5). In construing G.S. 97-2(5), our Supreme Court recently stated that the definition of average weekly wage and the methods of computing such wages set out in the statute "do not allow the inclusion of wages or income earned in employment or work other than that in which the employee was injured." McAninch v. Buncombe County Schools, 347 N.C. 126, 134, 489 S.E.2d 375, 380 (1997). The evidence before the Commission on the issue of wages, the Form 22, included wages from sources other than New Fortis Homes, Inc. Accordingly, on remand the Commission should take new evidence and calculate plaintiff's average weekly wage but not include wages from sources other than New Fortis Homes, Inc.

In sum, the Industrial Commission's conclusion that plaintiff's injuries arose out of and in the course of employment with New Fortis Homes, Inc. is affirmed. The Industrial Commission's conclusion that plaintiff's injuries are causally related to the automobile accident and that he remains incapable of earning any wages is affirmed. Finally, the Industrial Commission's determination of plaintiff's average weekly wage and its denial of defendant's motion for a new hearing or to take additional evidence are reversed. The cause is remanded to the Commission for hearing and determination of plaintiff's average weekly wage and appropriate award.

Affirmed in part, reversed in part, and remanded.

JOHN C. MARTIN, and TIMMONS-GOODSON, JJ., concur.