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are subject to modification and technical correction prior to official
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authoritative.
NO. COA04-1292
NORTH CAROLINA
COURT OF APPEALS
Filed: 5 July 2005
JOANNE MUNOZ,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 109297
CALDWELL MEMORIAL HOSPITAL,
Employer,
and
ALLIED CLAIMS ADMINISTRATION,
Carrier,
Defendants.
Appeal by defendants from opinion
and award entered 28 June 2004 by the North Carolina Industrial
Commission. Heard in the Court of
Appeals 12 May 2005.
CHARLES G. MONNETT, III &
ASSOCIATES, by Craig O. Asbill, for plaintiff-appellee.
JONES, HEWSON & WOOLARD, by
Lawrence J. Goldman, for defendants-appellants.
TIMMONS-GOODSON, Judge.
Caldwell Memorial Hospital
(“Caldwell”) and Allied Claims Administration (“Allied”) (collectively,
“defendants”) appeal an opinion and award of the North Carolina Industrial
Commission awarding Joanne Munoz (“plaintiff”) compensation for injuries
resulting from an automobile collision.
For the reasons discussed herein, we affirm the opinion and award.
The facts and procedural history
pertinent to the instant appeal are as follows: On 5 January 2001, plaintiff began work for Caldwell as a home
health care nurse. Plaintiff’s position
with Caldwell required her to travel each day to an assigned patient’s
residence to provide care for the patient.
Plaintiff provided care for only one patient per day, and her hourly
wages began when she reached the patient’s home. As part of plaintiff’s compensation, Caldwell paid plaintiff
excess travel mileage if her patient’s residence was more than sixty miles
round trip from her own residence.
On 8 January 2001, plaintiff was
assigned to care for a patient in Lenoir, North Carolina. While on her way to the patient’s residence,
plaintiff decided to drop off her time slips at Caldwell’s office, which was
also located in Lenoir. As plaintiff
drove to Caldwell’s office, she was involved in an automobile collision and
suffered injuries to her head and back.
Caldwell denied plaintiff’s subsequent worker’s compensation claim,
contending that the collision did not arise out of and in the course of
plaintiff’s employment at Caldwell.
On 6 November 2002, the case was
heard by North Carolina Industrial Commission Deputy Commissioner Edward
Garner, Jr. (“the Deputy Commissioner”).
On 10 March 2003, the Deputy Commissioner entered an opinion and award
concluding that plaintiff’s injuries arose out of and in the course of her
employment at Caldwell. Based upon this
conclusion, the Deputy Commissioner awarded plaintiff $271.46 per week in
compensation.
Defendants appealed the Deputy
Commissioner’s award to a full panel of the North Carolina Industrial Commission
(“the Full Commission”). On 28 June
2004, the Full Commission entered an opinion and award affirming the Deputy
Commissioner’s prior award. The Full
Commission made the following pertinent conclusions of law:
5. In this case, the “traveling salesman” exception applies because plaintiff was injured while en route to visit a patient pursuant to a job with no fixed hours or place of work. Plaintiff’s job required that she report directly from her home to the patient’s home for which she would be caring each day rather than beginning her day at her employer’s fixed place of business. Plaintiff’s job required that she visit with only one patient per day, but during the four days that plaintiff had been employed, she had visited three different patients at three different residences, and worked varying hours each day. . . . [U]nder these circumstances, the “traveling salesman” exception would apply to each day upon leaving her house to travel to her patient’s home because plaintiff did not have a fixed work place or fixed work hours.
6. Plaintiff’s
employment was of a nature that failed to establish a fixed work place or fixed
work hours, and plaintiff’s mere intention to drop her pay slips off while
traveling the route to her patient’s home that would take her by her employer’s
place of business on January 8, 2001, did not constitute a “distinct” and
“total” departure on a personal errand.
Accordingly, the traumatic brain injury and other injuries resulting
from plaintiff’s automobile accident on January 8, 2001, are compensable as
they arose out of and in the course of her employment pursuant to the
“traveling salesman” exception to the “going and coming” rule.
. . . .
8. Plaintiff’s
injuries sustained while traveling to work on January 8, 2001, are compensable
pursuant to the “contractual duty” exception because [Caldwell] was under an
active contractual duty to reimburse plaintiff for her mileage at the time of
her automobile collision. Pursuant to
this mileage plan, plaintiff was paid mileage for the amount of miles she was
required to travel in excess of 60 miles roundtrip to a single patient’s
home. Thus, the “contractual duty”
exception would apply to a home health care nurse visiting a single patient
over the course of a day at the time that nurse traveled beyond a 30-mile
radius of her listed home address.
9. Plaintiff’s
mere intent to drop her pay slip off, as required, while traveling the route to
her patient’s home that would take her by her employer’s place of business does
not constitute a “distinct” or “total” departure on a personal errand.
Based upon
these conclusions of law, the Full Commission awarded plaintiff $271.46 per
week in compensation. Defendants
appeal.
The issues on appeal are whether the
Full Commission erred by: (I) concluding
that plaintiff’s injury arose out of and in the course of her employment; and
(II) determining plaintiff’s average weekly wage.
Defendants first argue that the Full
Commission erred by concluding that plaintiff’s injuries arose out of and in the
course of her employment. Defendants
assert that because the collision giving rise to plaintiff’s injuries occurred
while plaintiff was driving her personal vehicle to work, plaintiff’s injuries
are not compensable. We disagree.
This Court’s review of a decision of
the Full Commission is limited to determining whether competent evidence
supports the Full Commission’s findings of fact, and whether the Full
Commission’s findings of fact support its conclusions of law. Adams v. AVX Corp., 349 N.C. 676, 681,
509 S.E.2d 411, 414 (1998). “Whether an
injury arises out of and in the course of a claimant’s employment is a mixed
question of fact and law[.]” Creel
v. Town of Dover, 126 N.C. App. 547, 552, 486 S.E.2d 478, 481 (1997).
The “going and coming rule” states
that “injuries sustained by an employee while going to or from work are not
ordinarily compensable” because the injuries do not arise out of or in the
course of employment. Bass v.
Mecklenburg County, 258 N.C. 226, 231-32, 128 S.E.2d 570, 574 (1962)
(citations omitted); Hunt v. Tender Loving Care Home Care Agency, Inc.,
153 N.C. App. 266, 269, 569 S.E.2d 675, 678, disc. review denied, 356
N.C. 436, 572 S.E.2d 784 (2002). The
rationale for this rule is that “the risk of injury while traveling to and from
work is one common to the public at large,” Creel, 126 N.C. App. at 555,
486 S.E.2d at 482, and “[a]n 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 go home.” Hunt, 153 N.C. App. at 269, 569 S.E.2d at 678. Nevertheless, the going and coming rule is
subject to exceptions. Such exceptions
have been recognized where:
(1) an employee
is going to or coming from work but is on the employer’s premises when the
accident occurs (premises exception); (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); (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); or (4) an employer
contractually provides transportation or allowances to cover the cost of
transportation (contractual duty exception).
Stanley v.
Burns Int’l Sec. Servs., 161 N.C. App. 722, 725, 589 S.E.2d 176, 178
(2003) (citations omitted).
In the instant case, the Full
Commission determined that both the traveling salesman exception and the
contractual duty exception apply. Defendants contend that the traveling salesman exception does not
apply because on the date of the collision, plaintiff had a fixed job location
at the residence of her patient. In
support of this contention, defendants cite this Court’s refusal to apply the
traveling salesman exception to the facts in Hunt. However, we conclude that Hunt is
distinguishable from the instant case.
In Hunt, we noted that “[i]f
travel is contemplated as part of the employment, an injury from an accident
during travel is compensable.” 153 N.C.
App. at 269, 569 S.E.2d at 678. Thus,
under the traveling salesman exception, “employees with no definite time and
place of employment . . . are within the course of their employment when making
a journey to perform a service on behalf of their employer.” Creel, 126 N.C. App. at 556-57, 486
S.E.2d at 483 (citations omitted). “The
applicability of the ‘traveling salesman’ rule to the facts [of a case] depends
upon the determination of whether [the] plaintiff had fixed job hours and a
fixed job location.” Hunt, 153
N.C. App. at 270, 569 S.E.2d at 678.
Like the plaintiff in the instant
case, the plaintiff in Hunt was a nursing aide whose work required her
to travel to a patient’s residence rather than report to her employer’s
premises. However, unlike the plaintiff
in the instant case, the plaintiff in Hunt had worked for her employer
for “over two years” and had worked “solely” with the same patient at the same
address. Id. at 270, 569 S.E.2d
at 678-79. Based upon these facts, this
Court determined in Hunt that the plaintiff’s “employment did not
require attending to several patients, at different locations with no fixed
work location.” Id. at 270, 569
S.E.2d at 679.
In the instant case, plaintiff had
only been employed at Caldwell for four days at the time of the collision, and
she had been assigned to three different patients at different locations on
each date of her employment. Although
the parties stipulated that “plaintiff . . . would visit only one patient per
day[,]” the parties also stipulated that “[s]ome of [Caldwell’s] home health
care nurses were limited to a single patient and some would see multiple
patients[.]” The parties further
stipulated that plaintiff’s wages would “begin upon reaching a patient’s
residence.” Thus, unlike in Hunt,
plaintiff was not assigned “solely” to the patient she was en route to assist
on the date of her injury. Instead, the
record supports the Full Commission’s determination that plaintiff’s employment
with Caldwell involved multiple patients, and that plaintiff had “no fixed
hours or place of work.” Therefore, we
conclude that the Full Commission did not err by determining that the traveling
salesman exception applies to the instant case.
Defendants also contend that the
Full Commission erred by determining that the contractual duty exception
applies to the instant case. In Hunt,
this Court stated that “where an employer provides transportation or allowances
to cover the cost of transportation, injuries occurring while going to or returning
from work are compensable” under the contractual duty exception. Id.
For a claim to
fall within this exception, the transportation must be provided as a matter of
right as a result of the employment contract.
If the transportation is provided permissively, gratuitously, or as an
accommodation, the employee is not within the course of employment while in
transit. Where the cost of transporting
employees to and from work is made an incident to the contract of employment,
compensation benefits have been allowed.
Id. (citations omitted).
In the instant case, plaintiff’s
employment with Caldwell included a mileage compensation plan “for approved
patient care, education, and business miles.”
The plan provided that “[f]or those having only one patient [per day],
mileage will be paid if greater than 60 miles roundtrip from their listed home
address.” In Hunt, we rejected
the plaintiff’s claim that her accident was covered under a similar
compensation policy, noting that “[t]he parties stipulated that [the] plaintiff
was not compensated for her travel because she did not travel over” the
relevant amount of mileage necessary for compensation under the policy. Id. at 271, 569 S.E.2d at 679. However, in the instant case, the parties
stipulated that “[t]he distance between the residence of [] plaintiff . . . and
the residence of the patient she was visiting on January 8, 2001, was in excess
of 60 miles round trip[,]” and the parties also stipulated that plaintiff
“would be reimbursed as per [the mileage compensation plan] for mileage to a
patient’s residence in Lenoir.” The
Full Commission noted these stipulations prior to determining that the
contractual duty exception applies to the instant case. We conclude that the Full Commission did not
err in its determination.
Defendants maintain that neither the
traveling salesman nor the contractual duty exceptions should apply to
plaintiff’s claim because at the time
of the collision, plaintiff was driving to Caldwell’s office rather than her
patient’s residence. We disagree.
This Court has noted that the
traveling salesman exception does not apply where the evidence demonstrates a
distinct departure by the employee on a personal errand. Dunn v. Marconi Communications, Inc.,
161 N.C. App. 606, 612, 589 S.E.2d 150, 155 (2003). Similarly, we have also noted that “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.” Id. However, our courts have further recognized
that workers’ compensation rules are subject to “liberal construction,” and
therefore, “‘[w]here any reasonable relationship to employment exists, or
employment is a contributory cause, the court is justified in upholding the
award as “arising out of employment.”‘”
Kiger v. Service Co., 260 N.C. 760, 762, 133 S.E.2d 702, 704
(1963) (quoting Allred v. Allred-Gardner, Inc., 253 N.C. 554, 557, 117
S.E.2d 476, 479 (1960)). In the
instant case, defendants contend that plaintiff’s route the date of the
collision was not the most direct to her patient’s residence, and that at the
time of the collision, plaintiff had “doubled back” to drop off her time
slips. However, we note that in Creel,
this Court agreed that “‘[a]n identifiable deviation from a business trip for
personal reasons takes the employee out of the course of his employment until
he returns to the route of the business trip, unless the deviation is so small
as to be regarded as insubstantial.’”
126 N.C. App. at 557, 486 S.E.2d at 483 (quoting 1 Arthur Larson &
Lex K. Larson, Larson’s Workmen’s Compensation Law §19.00, at 4-352
(1996)). Moreover, in Smith v.
Central Transport, 51 N.C. App. 316, 321, 276 S.E.2d 751, 754 (1981), we
held that an employee’s injury from an automobile collision arose out of and in
the course of his employment, and was not incurred during a distinct departure,
even though the collision occurred “approximately four and a half hours after
[the employee] had delivered his load of chemicals, and while he was . . .
heading in a direction which would have been opposite to the most direct route
back” to his employer’s business. In
the instant case, we conclude that even if plaintiff deviated from the most
direct route of her travel in order to drop off her time slips, this deviation
does not rise to the level of a distinct departure. Plaintiff stipulated that “[s]he was on her way to see a patient”
when the collision occurred, but because “[s]he had extra
time . . . she decided to drop off [her] time slips at”
Caldwell’s office. Plaintiff also
stipulated that she was required to drop her time slips off at Caldwell’s
office by 5:00 p.m. on Mondays, including Monday, 8 January 2001, the date of
the collision. Although we note that
plaintiff would not be reimbursed for the mileage she incurred in driving to
drop off her time slips, we also note that Caldwell’s office was located in the
same town as plaintiff’s patient’s residence.
In light of the foregoing, we conclude that the Full Commission
correctly determined that plaintiff’s “mere intention to drop her pay slips off
while traveling the route to her patient’s home” did not prevent application of
the traveling salesman and contractual duty exceptions. Accordingly, we overrule defendants’ first
argument.
Defendants’ final argument is that
the trial court erred by determining plaintiff’s average weekly wage. N.C. Gen. Stat. 97-2(5) (2003) governs the determination of an injured worker’s
average weekly wage, and it provides in pertinent part as follows:
Average Weekly
Wages. -- “Average weekly wages” shall mean the earnings of the injured
employee in the employment in which he was working at the time of the injury
during the period of 52 weeks immediately preceding the date of the injury . .
. . Where the employment prior to the injury extended over a period of fewer
than 52 weeks, the method of dividing the earnings during that period by the
number of weeks and parts thereof during which the employee earned wages shall
be followed; provided, results fair and just to both parties will be thereby
obtained. Where, by reason of a
shortness of time during which the employee has been in the employment of his
employer or the casual nature or terms of his employment, it is impractical to
compute the average weekly wages as above defined, regard shall be had to the
average weekly amount which during the 52 weeks previous to the injury was
being earned by a person of the same grade and character employed in the same
class of employment in the same locality or community.
But where for
exceptional reasons the foregoing would be unfair, either to the employer or
employee, such other method of computing average weekly wages may be resorted
to as will most nearly approximate the amount which the injured employee would
be earning were it not for the injury.
In the instant case, prior to the
hearing, the parties stipulated in pertinent part as follows:
3. With respect to average weekly wage, during the year 2000, [Caldwell’s] PRN (as needed) LPNs worked:
a. If each week is averaged, the total
average hours per week is 23.94.
b. With a weighted average (weeks with 10
LPNs working would receive twice the weight as weeks with 5 LPNs working), the
average hours per week is 22.76.
Based in part
upon this stipulation, the Full Commission concluded in pertinent part as
follows:
11. In this case, plaintiff’s average weekly wage is best determined by employing another method as set forth in N.C. Gen. Stat. §97-2(5) because plaintiff’s employment prior to her injury extended over a period of less than 52 weeks. Accordingly, plaintiff’s average weekly wage shall be that of a similar situated employee who has been employed by [Caldwell] for more than one year. Since the parties stipulated that other LPNs worked an average of 23.94 hours per week, at $17.00 per hour for 23.94 hours per week, plaintiff’s average weekly wages are $406.98, which yields a compensation rate of $271.46 per week.
Defendants contend that the Full
Commission should have used the weighted average hours detailed in the
stipulation rather than the straight average.
However, notwithstanding their assertion that the weighted average “more
accurately reflects expected hours of a PRN LPN,” defendants cite no authority
in support of their argument and fail to demonstrate why the weighted average
is preferred. As discussed above, our
review on appeal of an opinion and award of the Full Commission is limited to
determining whether competent evidence supports the Full Commission’s findings
of fact, and whether those findings of fact support the Full Commission’s
conclusions of law. Adams, 349
N.C. at 681, 509 S.E.2d at 414. In the
instant case, the Full Commission’s conclusion of law indicates that it based
its decision to use the straight average upon the stipulation agreed to by both
parties. Thus, in light of the
foregoing, we conclude that the Full Commission did not err in its
determination regarding plaintiff’s average weekly wage. Therefore, we overrule defendants’ final
argument, and accordingly, we affirm the Full Commission’s opinion and award.
Affirmed.
Judges McCULLOUGH and STEELMAN
concur.