All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NO. COA03-129
NORTH CAROLINA COURT OF APPEALS
Filed: 16 December 2003
JOSEPH
B. DUNN,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 048821
MARCONI
COMMUNICATIONS, INC.,
Employer,
ACE
USA,
Carrier,
Defendants.
Appeal by plaintiff from opinion and award entered 16 September 2002 by the North Carolina Industrial Commission. Heard in the Court of Appeals 17 November 2003.
The
Jernigan Law Firm, by Leonard T. Jernigan, Jr., N. Victor Farah and Lauren R.
Trustman, for plaintiff-appellant.
Teague,
Campbell, Dennis & Gorham, L.L.P., by Dayle A. Flammia, for
defendant-appellees.
EAGLES,
Chief Judge.
Plaintiff
Joseph B. Dunn appeals from an opinion and award of the full Industrial
Commission denying workers’ compensation benefits. Plaintiff asserts two
arguments on appeal: that the Industrial Commission erred (1) by failing to
apply the appropriate law to determine the compensability of plaintiff’s claim
and (2) by deferring to the deputy commissioner’s judgment regarding the
credibility of witnesses. After careful review of the transcript, exhibits, record
and briefs, we affirm.
The
evidence presented to the Commission tended to show that plaintiff was injured
in an automobile accident on 14 April 2000. At the time of the accident,
plaintiff was returning from his home in Maysville, North Carolina, to a job
site located in Richmond, Virginia.
Plaintiff
began working for defendant Marconi Communications, Inc. (“Marconi”) in 1997.
In 2000, plaintiff worked as a “lead man” for Marconi. As a lead man,
plaintiff’s job responsibilities consisted of supervising the installation of
telephone equipment by teams of workers and maintaining the stock of materials
necessary for the project. Plaintiff traveled frequently as part of his job. He
testified that he had previously completed projects for Marconi in Oklahoma
City, Oklahoma; Roswell, New Mexico; Dallas, Texas; Chattanooga, Tennessee; and
Detroit, Michigan.
Marconi
provided plaintiff a company van to drive and a company credit card in order to
pay for gasoline for the van. Plaintiff was paid for any time he spent
traveling between job sites. During weekends or between jobs, plaintiff would
drive the company van to his home and then drive the van to the next job site.
Plaintiff
used a pager that was turned on at all times. Plaintiff’s supervisors contacted
plaintiff using this pager in order to tell plaintiff the location of his next
job site. Plaintiff testified that he called the company headquarters every
week to inform the payroll clerk where to deliver his paycheck. The payroll
clerk would then send plaintiff’s paycheck to his location, using an express
mail service if necessary.
Plaintiff
was assigned to the project site in Richmond, Virginia, in late March or early
April 2000. Marconi was hired to install telephone cable and equipment in the
Bell Atlantic building. By 14 April 2000, the Marconi team was running behind
schedule on the project. The team had begun the Richmond project later than
expected and the project was further delayed by sabotage. Plaintiff testified
that his immediate supervisor, Steve Wade, pressured the installation team and
constantly asked plaintiff how much longer it would take to finish the project.
The
Marconi crew working at the Bell Atlantic site was using a hydraulic crimper, a
tool which is used to tighten cables during installation. When plaintiff worked
the 8 p.m. shift on 13 April, he observed that the crew only had one hydraulic
crimper in use. Plaintiff had an additional manual crimper, owned by Marconi,
at his home in Maysville. Manual crimpers are used for the installation of
smaller cables, while hydraulic crimpers are needed for larger cables.
Plaintiff
decided to retrieve the crimper from Maysville in order to complete the project
more quickly. At 8 a.m. on 14 April, a few hours after he got off work,
plaintiff began the drive to Maysville. Plaintiff did not tell any of his
co-workers that he was traveling home or that he was going to retrieve the
additional crimper. Plaintiff’s fiancée Sherry accompanied him on the trip to
Maysville. Plaintiff estimated that it would take him four hours to drive from
Richmond to Maysville.
Plaintiff
and his fiancée arrived at plaintiff’s home in Maysville around noon. Plaintiff
retrieved the crimper from his house. He checked his mailbox but his paycheck
had not yet arrived.
Plaintiff
began to drive back to Richmond with his fiancée. He was scheduled to be at
work at the Richmond project site at 8:00 p.m. that evening. Plaintiff was
injured in an accident during the trip back to Richmond at approximately 5:15
p.m. The accident occurred about forty miles away from the job site. Plaintiff
fell asleep while driving on Interstate 95 and ran off the highway. When the
van left the highway, it flipped several times and plaintiff was thrown from
the van. Plaintiff had not slept or taken a nap since before he reported to
work the previous evening at 8:00 p.m., meaning that plaintiff had been awake
for at least 21 hours at the time of the accident. Plaintiff sustained a
concussion, a scalp laceration, several broken ribs, a collapsed lung, a bruised
heart, and a compound fracture of his ankle as a result of the accident.
Defendants
denied compensability of plaintiff’s claim, based upon defendants’ decision
that plaintiff’s accident did not arise out of the course and scope of his
employment. Plaintiff’s claim was then presented to the deputy commissioner on
26 January 2001. Defendants introduced testimony that tended to show that
plaintiff did not have a legitimate business reason for driving to his home in
Maysville. Marconi’s human resources manager testified that, at the time of the
accident, plaintiff had requested his paycheck be directly deposited in his
bank account, so there was no reason for plaintiff to expect his paycheck to be
delivered to his home. Plaintiff testified that he had signed up for the direct
deposit program but then cancelled his participation in it. Plaintiff was
unable to remember when he cancelled direct deposit of his paycheck.
In
addition, plaintiff stated on cross-examination that he knew another employee
at the Richmond work site had an extra crimper which was the same type of tool
that he retrieved from his home in Maysville. However, plaintiff admitted that
he did not ask the other employee if he could use the “extra” crimper before he
decided to drive to Maysville. Plaintiff also testified that he did not
investigate the Richmond area to determine whether there was a store in
Richmond where he could buy an extra crimper. Plaintiff’s supervisor testified
that all employees were instructed on the procedure for getting tools locally
if needed for the job site. Employees were instructed to buy tools at stores
near the job site or to have tools shipped in by an express service from
Marconi’s headquarters. In addition, the supervisor stated that company policy
forbids employees from keeping tools at home, as plaintiff claimed to have
done. The supervisor further testified that having an extra crimper on the
Richmond job site would not have hastened the completion of the project. There
were not enough workers on site to operate another hydraulic crimper, and the
manual crimper only fit small cables.
The
deputy commissioner and full Commission both denied plaintiff’s claim for
workers’ compensation benefits. The Commission denied plaintiff’s claim because
it found that plaintiff’s stated reasons for traveling to Maysville were not
credible. Plaintiff appeals.
It
is well-settled that “appellate courts reviewing Commission decisions are
limited to reviewing whether any competent evidence supports the Commission’s
findings of fact and whether the findings of fact support the Commission’s
conclusions of law.” Deese v. Champion Int’l Corp., 352 N.C. 109, 116,
530 S.E.2d 549, 553 (2000). However, the Commission’s decision regarding
whether “an accident arose out of and in the course of employment is a mixed
question of law and fact; thus, this Court may review the record to determine
if the findings and conclusions are supported by sufficient evidence.” Bowser
v. N.C. Dep’t. of Corr., 147 N.C. App. 308, 311, 555 S.E.2d 618, 621 (2001)(quoting
Cauble v. Soft-Play, Inc., 124 N.C. App. 526, 528, 477 S.E.2d 678, 679
(1996), disc. rev. denied, 345 N.C. 751, 485 S.E.2d 49 (1997)), disc.
rev. denied, 355 N.C. 283, 560 S.E.2d 796 (2002).
G.S.
§97-2 (6) defines “injury” under the Workers’ Compensation Act to refer to
“injury by accident arising out of and in the course of the employment . . . .”
The “coming and going rule,” which is the “general rule in this and other
jurisdictions,” states “that an injury by accident occurring en route from the
employee’s residence to his workplace or during the journey home is not one
that arises out of or in the course of employment.” Powers v. Lady’s Funeral
Home, 306 N.C. 728, 730-31, 295 S.E.2d 473, 475 (1982)(citing Humphrey
v. Laundry, 251 N.C. 47, 110 S.E.2d 467 (1959)). However, the general rule
barring compensability of injuries sustained while traveling to or from work is
subject to several exceptions, including inter alia, the “traveling
salesman” exception, the “contractual duty” exception, the “special errand”
exception, and the “dual purpose” exception. See Powers, 306 N.C. 728,
295 S.E.2d 473 (1982); Hunt v. Tender Loving Care Home Care Agency, Inc.,
153 N.C. App. 266, 569 S.E.2d 675, disc. rev. denied, 356 N.C. 436, 572
S.E.2d 784 (2002); Creel v. Town of Dover, 126 N.C. App. 547, 486 S.E.2d
478 (1997).
Plaintiff
argues that the full Commission erred by omitting several factual findings
that, if found, would have provided sufficient evidence to allow plaintiff to
recover under various exceptions to the “coming and going” rule. Plaintiff
contends that the Commission’s failure to find these facts indicates that the
Commission misapprehended the law and failed to apply the proper standard when
it denied workers’ compensation benefits. We disagree.
As
a preliminary matter, we note that this Court has held that when the Commission
determines “the credibility of the witnesses and the evidence and the weight
each is to receive,” the Commission “may not wholly disregard or ignore the
competent evidence before it.” Peagler v. Tyson Foods, Inc., 138 N.C.
App. 593, 601, 532 S.E.2d 207, 212 (2000)(internal citations omitted). “[T]he
Commission is not required to find facts as to all credible evidence.” Peagler,
138 N.C. App. at 602, 532 S.E.2d at 213. Therefore, merely because plaintiff
presented credible evidence, the Commission was not required to make findings
of fact regarding that evidence.
Here,
plaintiff contends that the Commission failed to make a finding that plaintiff
was on permanent “on call” status despite uncontroverted evidence that
plaintiff carried a pager twenty-four hours each day. Plaintiff argues that
such a finding would have allowed plaintiff to argue that his injury fell under
the “traveling salesman” exception to the “coming and going” rule. The
Commission also omitted any factual finding about defendant employer’s
furnishing of a company vehicle for plaintiff’s use, which would have enabled
plaintiff to argue that his injuries were compensable according to the
“contractual duty” exception. In addition, plaintiff contests the lack of
factual findings indicating that plaintiff had decision-making authority
regarding where to get work materials for the job site, that plaintiff’s
purpose in traveling to Maysville was to retrieve the crimper, and that
plaintiff’s return trip assumed a business purpose because he was returning to
work when the accident occurred. Any of these findings of fact would have
allowed plaintiff to argue that either the “special errand” or “dual purpose”
exception applied. Although plaintiff presented evidence that would tend to
support these proposed factual findings and therefore allow plaintiff to make
these arguments regarding compensability, we hold that the absence of these
proposed findings is not error here. The Commission’s finding of fact that
plaintiff’s evidence about the purpose of his trip to Maysville was “not
believable” eliminates all support for the exceptions to the “going and coming”
rule that plaintiff argues were present in this matter.
The
“traveling salesman” exception to the “going and coming” rule has been defined
as follows: “[E]mployees whose work entails travel away from the employer’s
premises are held . . . to be within the course of their employment
continuously during the trip, except when a distinct departure on a personal
errand is shown.” Chandler v. Teer Co., 53 N.C. App. 766, 768, 281
S.E.2d 718, 720 (1981)(quoting Brewer v. Trucking Co., 256 N.C. 175,
179, 123 S.E.2d 608, 611 (1962)), aff’d per curiam, 305 N.C. 292, 287
S.E.2d 890 (1982); see also Ross v. Young Supply Co., 71 N.C. App. 532,
322 S.E.2d 648 (1984). The “contractual duty” exception states that “[i]njuries
received by an employee while traveling to or from his place of employment are
usually not covered by the Act unless the employer furnishes the means of
transportation as an incident of the contract of employment.” Strickland v.
King and Sellers v. King, 293 N.C. 731, 733, 239 S.E.2d 243, 244 (1977).
However, the “contractual duty” exception can be negated if the Commission
finds that the employee, while using an employer-provided vehicle, abandoned
his employment-related purpose for using the vehicle. See Alford v.
Chevrolet Co., 246 N.C. 214, 217, 97 S.E.2d 869, 871 (1957). The “special
errand” exception allows an employee to recover for injuries sustained while
traveling to or from work if the injuries occur while the employee is engaged
in a special duty or errand for his employer. See Schmoyer v. Church of
Jesus Christ of Latter Day Saints, 81 N.C. App. 140, 343 S.E.2d 551, disc.
rev. denied, 318 N.C. 417, 349 S.E.2d 600 (1986); Felton v. Hospital
Guild, 57 N.C. App. 33, 291 S.E.2d 158, aff’d by an equally divided
court, 307 N.C. 121, 296 S.E.2d 297 (1982). The “dual purpose” exception is
defined as follows:
[W]hen
a trip serves both business and personal purposes, it is a personal trip if the
trip would have been made in spite of the failure or absence of the business
purpose and would have been dropped in the event of failure of the private
purpose, though the business errand remained undone; it is a business trip if a
trip of this kind would have been made in spite of the failure or absence of
the private purpose, because the service to be performed for the employer would
have caused the journey to be made by someone even if it had not coincided with
the employee’s personal journey.
Felton, 57 N.C. App. at 37, 291 S.E.2d at 161 (quoting 1 Arthur
Larson, The Law of Workmen’s Compensation §18.12 (1978)).
All
of the exceptions relied upon by plaintiff can be eliminated from consideration
based upon a finding that plaintiff was on a personal errand at the time of his
accident and that the trip did not serve a dual business purpose. Here, the
Commission found that:
The
greater weight of the competent evidence fails to support plaintiff’s testimony
that the purpose of his April 14, 2000 trip to Maysville, North Carolina with
an anticipated return to Richmond, Virginia by 8:00 p.m. to work his next shift
was to either pick up a manual crimper for the benefit of his employer or to
pick up his paycheck.
This finding was sufficient to indicate
that the Commission rejected the evidence offered to show that plaintiff had a
business-related reason for his trip to Maysville. The “dual purpose” rule
cannot apply to plaintiff’s claim because no legitimate business purpose
existed according to the Commission’s factual finding.
The
Commission’s holding that plaintiff’s accident did not occur within the course
and scope of his employment is a mixed question of law and fact. Therefore, we
must analyze whether sufficient evidence supports the Commission’s findings of
fact. Here, plaintiff offered two reasons for the trip to Maysville: (1) the
necessity of getting a manual crimper and (2) the retrieval of his paycheck.
Defendants responded by offering evidence that tended to show that plaintiff
knew that neither of these goals required him to make an eight-hour round trip
journey. Defendants presented evidence that plaintiff’s paychecks were being
electronically deposited into his bank account, meaning that plaintiff did not
need to drive home in order to retrieve his paycheck. In addition, defendants
and plaintiff presented evidence that tended to show that Marconi would send an
employee’s paycheck to him on a job site by an express delivery service if
requested by the employee. Defendants also presented evidence that Marconi had
a company policy of shipping in necessary tools or buying tools locally and
that plaintiff knew of this policy. In addition, plaintiff knew that a
co-worker at the same job site had the exact tool that plaintiff thought was
needed. Plaintiff did not ask his co-worker for the tool, nor did he tell
anyone where he was going when he left Richmond. Finally, defendants presented
evidence that indicated the additional tool that plaintiff allegedly traveled
home to get was not needed on the Richmond job site. Sufficient evidence
supports the Commission’s conclusion that plaintiff’s stated reasons for
returning home were not credible. Therefore, this assignment of error is
overruled.
Plaintiff’s
second argument is that the full Commission improperly deferred to the deputy
commissioner’s credibility determinations. Plaintiff contends that the full
Commission may not rely on the deputy commissioner’s findings at all, because
the full Commission is the sole judge of credibility. We disagree.
The
finding of fact that plaintiff disputes on appeal reads as follows, in
pertinent part:
In
light of the fact that the Deputy Commissioner had the opportunity to view the
witnesses and make reasonable inferences therefrom from their conduct and
having considering [sic] all competent evidence of record, the Full
Commission concludes that plaintiff traveled home for some unknown personal
reason.
We note that the Commission’s finding of
fact states that the Commission reached its decision after reviewing all
competent evidence of record. Plaintiff argues that the Commission cannot rely
upon the credibility determinations of the deputy commissioner according to Adams
v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998). The Adams case
stated:
Whether the full Commission conducts
a hearing or reviews a cold record, N.C.G.S. §97-85 places the ultimate
fact-finding function with the Commission -- not the hearing officer. It is the
Commission that ultimately determines credibility, whether from a cold record
or from live testimony. Consequently, in reversing the deputy commissioner’s
credibility findings, the full Commission is not required to demonstrate, as Sanders
states, “that sufficient consideration was paid to the fact that credibility
may be best judged by a first-hand observer of the witness when that
observation was the only one.”
Adams, 349 N.C. at 681, 509 S.E.2d at 413 (quoting Sanders v.
Broyhill Furniture Industries, 124 N.C. App. 637, 641, 478 S.E.2d 223, 226
(1996), disc. rev. denied, 346 N.C. 180, 486 S.E.2d 208 (1997), overruled
by Adams, 349 N.C. 676, 509 S.E.2d 413 (1998)). Adams clearly holds
that the full Commission is not required to defer to the deputy commissioner’s
credibility determinations simply because the deputy commissioner viewed the
testimony or other evidence firsthand. However, Adams does not hold, as
plaintiff argues here, that the full Commission may not consider the deputy
Commissioner’s findings.
Assuming
arguendo that Adams does forbid the full Commission from giving
any consideration to the deputy commissioner’s credibility determinations, the
Commission here did not commit reversible error. The Commission stated that it
considered all the evidence and made factual findings different from the
findings of the deputy commissioner, as noted in plaintiff’s first argument on
appeal. Because the full Commission did not rely solely upon the deputy
commissioner’s credibility determination, we overrule this assignment of error.
For
the reasons stated above, the Industrial Commission’s opinion and award is
affirmed.
Affirmed.
Judges
MARTIN and LEVINSON concur.