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NO. COA03-259
NORTH CAROLINA COURT OF APPEALS
Filed: 16 December 2003
DONALD
STANLEY, Husband, and
CHERYL
STANLEY, Daughter of
PATRICIA
STANLEY, Deceased Employee,
Plaintiffs,
v. North
Carolina Industrial Commission
I.C.
File No. 002238
BURNS
INTERNATIONAL SECURITY
SERVICES,
Employer,
LUMBERMANS
MUTUAL CASUALTY
COMPANY,
Carrier,
Defendants.
Appeal by plaintiffs from opinion and award filed 26 November 2002 by the North Carolina Industrial Commission. Heard in the Court of Appeals 12 November 2003.
McGougan,
Wright, Worley, Harper & Bullard, LLP, by Paul J. Ekster and Dennis T.
Worley, for plaintiff-appellants.
Lewis
& Roberts, P.L.L.C., by John D. Elvers and Jeffrey A. Misenheimer, for
defendant-appellees.
BRYANT,
Judge.
Donald
Stanley and Cheryl Stanley (collectively plaintiffs), husband and daughter of
the deceased Patricia Stanley, appeal an opinion and award of the North
Carolina Industrial Commission (the Commission) filed 26 November 2002 denying
their workers’ compensation claim.
In
its 26 November 2002 opinion and award the Commission found:
1. Patricia
Stanley, deceased, began working for . . . defendant-employer [(Burns
International Security Services)] on February 17, 1996. The deceased worked as
a Site Captain and Security Guard at Bricklanding Plantation that is located
outside of Shallotte, North Carolina. The deceased worked approximately 40
hours per week and worked a shift from 4:00 p.m. until midnight. The
deceased lived in Nakina, North Carolina . . . approximately 30 miles
from Bricklanding.
2. On
September 16, 1999, Hurricane Floyd passed through the area and resulted in
flooding to the area. . . . [D]efendant-employer’s site was closed on September
16, 1999, due to the hurricane. On September 17, 1999, . . . defendant-employer
was able to get officers back onsite for the 4:00 p.m. through midnight shift.
. . . [D]efendant-employer spoke with the deceased on that day and told her
that it was not necessary to come into work because the other officers . . .
could cover the site until the water receded and the roads were safe for
travel.
3. On
Monday, September 20, 1999, the deceased called . . . defendant-employer to
report that she still could not get to work. Ms. Dawn Greenburg again told the
deceased that it was not necessary for her to come into work until it was safe
to travel.
4. On
Monday, September 20 [sic], 1999, the deceased called . . . defendant-employer
and told . . . defendant-employer that she was coming to work that day. The
deceased worked September 21, September 22, September 23, and September 24,
1999. The deceased worked eight-hour shifts on each of those dates.
5. On
September 25 [sic], 1999, the deceased traveled to work and worked her shift
from 4:00 p.m. until midnight. At the conclusion of her shift, the deceased was
on her way home when she was involved in an automobile accident that resulted
in her death [on 25 September 1999].
6. The
deceased was driving her personal vehicle at the time of her death. . . .
[D]efendant-employer did not provide transportation to and from work to the
deceased employee. . . . [D]efendant-employer did not pay the deceased for
travel time to and from work. . . . [D]efendant-employer also did not reimburse
the deceased for mileage for travel to and from work.
7. At
the hearing, the deceased’s daughter alleged that the deceased was required to
come to work on September 24, 1999, or else risk losing her job. This
allegation was directly contradicted by the testimony of Ms. Dawn Greenburg and
Mr. Clayton Collins. Additionally, this allegation further lacks credibility
considering the fact that the deceased worked four complete shifts on September
21, 22, 23, and 24, 1999, prior to her untimely death. Both Ms. Greenburg and
Mr. Collins testified that [the deceased] was a good employee[] and that she
would never have been given any type of ultimatum as alleged by the deceased’s
daughter.
Based
on these findings, the Commission concluded that because “none of the
exceptions to the ‘going and coming rule’ appl[ied] in this case,” “the
deceased’s automobile accident did not arise out of and was not in the course
and scope of her employment with . . . defendant-employer” and was
therefore not compensable.
_______________________
The sole issue on appeal is whether the Commission’s findings support its conclusion that the deceased did not sustain a compensable injury by accident.[Note 1]
An employee is entitled to workers’ compensation benefits for injuries sustained in an accident arising out of and in the course of her employment. “Arising out of” refers to the cause of the accident; the employee must be about the business of the employer. “In the course of” points “to the time, place, and circumstances under which an accident occurred.” The accident must happen during the time and at the place of employment.
Hunt v. Tender Loving Care Home Care Agency, Inc., 153 N.C. App. 266, 269, 569 S.E.2d 675, 678 (2002) (quoting Ross v. Young Supply Co., 71 N.C. App. 532, 536-37, 322 S.E.2d 648, 652 (1984)). An employee is not engaged in the business of the employer while driving his or her personal vehicle to the place of work or while leaving the place of employment to return home. Ellis v. Service Co., Inc., 240 N.C. 453, 456, 82 S.E.2d 419, 421 (1954). Therefore, “[t]he general rule in this State is that an injury by accident occurring while an employee travels to and from work is not one that arises out of or in the course of employment.” Royster v. Culp, Inc., 343 N.C. 279, 281, 470 S.E.2d 30, 31 (1996). This rule is known as the “coming and going” rule. Id. Exceptions to this rule have been recognized when: (1) an employee is going to or coming from work but is on the employer’s premises when the accident occurs (premises exception), id.; (2) the employee is acting in the course of his employment and in the performance of some duty, errand, or mission thereto (special errands exception), Powers v. Lady’s Funeral Home, 306 N.C. 728, 731, 295 S.E.2d 473, 475 (1982); (3) an employee has no definite time and place of employment, requiring her to make a journey to perform a service on behalf of the employer (traveling salesman exception), Creel v. Town of Dover, 126 N.C. App. 547, 556-57, 486 S.E.2d 478, 483(1997); or (4) an employer contractually provides transportation or allowances to cover the cost of transportation (contractual duty exception), Hunt, 153 N.C. App. at 270, 569 S.E.2d at 679.
In this case, none of the exceptions to the “coming and going” rule apply. As found by the Commission, the deceased had voluntarily returned to work on 24 September 1999 and was traveling home after her shift had ended at midnight. The deceased was driving in her own vehicle at the time of the accident, and her employer did not pay the deceased for travel time to and from work or reimburse her for mileage. Moreover, at the time her vehicle swerved off the road, the deceased was no longer on the employer’s premises. While the deceased’s daughter testified that her mother had been pressured to come in to work on 24 September 1999 and threatened with losing her job if she did not report to work, arguably bringing this case into the special errand analysis, the Commission rejected this testimony as not credible in light of testimony from the deceased’s supervisors and the fact that the deceased had already worked for three days prior to her last shift. See Deese v. Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000) (the Commission is the “sole judge of the weight and credibility of the evidence”). As the Commission’s findings thus support its conclusion that none of the exceptions to the “coming and going” rule applied and the deceased therefore did not sustain a compensable injury by accident, there was no error.
Affirmed.
Judges McCULLOUGH and TYSON concur.
1. As plaintiffs did not challenge whether the Commission’s findings are supported by competent evidence our analysis is limited to whether the findings support the Commission’s conclusion. See In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003) (findings of fact not challenged on appeal “are deemed supported by competent evidence” and are binding on this Court).