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.
IN THE SUPREME COURT OF NORTH CAROLINA
No. 181A06
FILED: 26 JANUARY 2007
TAMMY P. FROST, Employee
v.
SALTER PATH FIRE & RESCUE, Employer,
VOLUNTEER SAFETY WORKERS’ COMPENSATION
FUND, Carrier
Appeal pursuant to N.C.G.S. §7A-30(2) from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 628 S.E.2d 22 (2006), affirming an opinion and award filed on 8 February 2005 by the North Carolina Industrial Commission. On 29 June 2006, the Supreme Court allowed defendants’ petition for discretionary review of additional issues. Heard in the Supreme Court 22 November 2006.
Ward
and Smith, P.A., by S. McKinley Gray, III and William A. Oden, III, for
plaintiff-appellee.
Cranfill,
Sumner & Hartzog, L.L.P., by Jonathan C. Anders and Meredith L. Taylor, for
defendant-appellants.
BRADY, Justice.
On 30 September 2001, plaintiff Tammy P. Frost, a volunteer
emergency medical technician (EMT) with defendant Salter Path Fire &
Rescue, was injured while operating a go-cart, an off road recreational
vehicle, at a private amusement park during a “Fun Day” event for Salter Path
Fire & Rescue volunteers.[Note 1]
The question presented is whether plaintiff’s injury arose out of her
employment. We hold that it did
not. Because the Commission’s findings
of fact do not support its conclusions of law, we reverse and remand the
decision of the Court of Appeals.
Plaintiff Tammy P. Frost was injured operating a go-cart at
a private amusement park on 30 September 2001 at the second annual “Fun Day”
arranged by defendant Salter Path Fire & Rescue. After operating the go-cart for approximately one hour, plaintiff
was injured when she rounded a corner on the track and collided with another
go-cart. She was transported to the
hospital emergency department for evaluation, where she was diagnosed with a
cervical strain and released the same day.
Plaintiff asserts that as a result of the go-cart accident, she now
suffers from unresolved neck and back pain that prevents her from working
altogether.
Plaintiff served as the volunteer emergency medical services
(EMS) captain for Salter Path Fire & Rescue.[Note 2] Her position as captain involved making sure
the ambulances were stocked, cleaned, and ready for use, as well as ensuring
that calls to the department were handled properly. Plaintiff testified during the hearing before the North Carolina
Industrial Commission (Commission) that she had volunteered as an EMT for the
Salter Path Fire & Rescue Department on and off for approximately twenty
years.
The concept of a “Fun Day” as a way for the community to
show appreciation for Department volunteers and their families was first
discussed at a meeting of Department members in 2000. The costs of the event were not paid out of the Department’s
operating budget, but were funded entirely by community donations and paid out
of a special account. Attendees did
sign a roster upon arrival; however, testimony demonstrated one purpose of the
roster was to determine the number of participants in order to calculate
payment to the amusement park.
The Commission made a finding of fact that participation in “Fun
Day” was voluntary, although volunteers were encouraged to attend if
possible. Many of the EMT volunteers
did not attend the event in 2001.
Plaintiff testified that her role at “Fun Day” was merely participatory,
although she did plan to personally thank the volunteers. The testimony further shows that no awards
or recognitions were given at the event, nor were there any organized
discussions concerning work or the Department.
Defendant’s insurance carrier denied plaintiff’s claim for
compensation based on her injury in a filing with the Commission on 3 October
2001. The stated reason for the denial
was that the injury was “not by accident within the course and scope of”
plaintiff’s employment. Plaintiff
requested that the claim be assigned for hearing on 4 June 2002. A deputy commissioner denied plaintiff’s
claim for compensation on 29 April 2004, from which plaintiff appealed to the
Full Commission. The Full Commission
reviewed plaintiff’s claim and, on 8 February 2005, filed its opinion and award
reversing the decision of the deputy commissioner and awarding plaintiff
benefits for temporary total disability.
Defendants filed a notice of appeal from the decision of the Full
Commission to the North Carolina Court of Appeals.
On 7 March 2006, a divided panel of the North Carolina Court
of Appeals issued its opinion holding that the evidence in the record did
support the findings of fact, which in turn supported the conclusions of law,
and that the Full Commission properly determined that plaintiff suffered a
compensable injury resulting in temporary total disability. The dissent disagreed, stating that some of
the Full Commission’s findings of fact were not supported by competent evidence
in the record, and therefore the findings did not in turn support the
conclusions of law reached by the Commission.
Defendants filed a notice of appeal as of right based on the dissent.
This Court allowed defendants’ petition for discretionary
review as to additional issues to consider whether the Commission erred in
finding and concluding that plaintiff met her burden to show the existence and
extent of her alleged disability from the date of her injury until April
2003. Due to our holding on the arising-out-of-employment
issue, we need not address the issue presented in defendants’ petition for
discretionary review.
“[W]hen reviewing Industrial Commission decisions, appellate
courts must examine ‘whether any competent evidence supports the Commission’s
findings of fact and whether [those] findings . . . support the Commission’s
conclusions of law.’” McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597
S.E.2d 695, 700 (2004) (citation omitted).
“Whether an accident arose out of the employment is a mixed question of
law and fact.” Sandy v. Stackhouse,
Inc., 258 N.C. 194, 197, 128 S.E.2d 218, 221 (1962) (citations omitted).
The workers’ compensation system is a creature of statute enacted by the General Assembly and is codified in Chapter 97 of the North Carolina General Statutes.
The social policy behind the Workers’
Compensation Act is twofold. First, the
Act provides employees swift and certain compensation for the loss of earning
capacity from accident or occupational disease arising in the course of
employment. Second, the Act insures
limited liability for employers.
Although the Act should be liberally construed to effectuate its intent,
the courts cannot judicially expand the employer’s liability beyond the
statutory parameters.
Hendrix
v. Linn-Corriher Corp., 317 N.C. 179, 190, 345 S.E.2d 374, 381 (1986)
(citations omitted). “The purpose of
the [Workers’ Compensation] Act . . . is not only to provide a swift and
certain remedy to an injured work[er], but also to insure a limited and
determinate liability for employers.” Barnhardt
v. Yellow Cab Co., 266 N.C. 419, 427, 146 S.E.2d 479, 484 (1966) (citation
omitted).
Section 97-2(6) of the North Carolina General Statutes
states the definition of injury under the Workers’ Compensation Act (Act) and
articulates the controlling rule in the case sub judice: “‘Injury and personal injury’ shall mean
only injury by accident arising out of and in the course of the employment . .
. .” N.C.G.S. §97-2(6) (2005). “‘Arising out of employment’ refers to the
manner in which the injury occurred, or the origin or cause of the
accident.” Leonard T. Jernigan, Jr., North
Carolina Workers’ Compensation: Law and Practice §5-3, at 38 (2d ed. 1995)
[hereinafter Jernigan, Workers’ Compensation](citing Taylor v. Twin
City Club, 260 N.C. 435, 132 S.E.2d 865 (1963)). The limiting language of the definition, requiring the injury
arise out of and in the course of employment, “[keeps] the Act within the
limits of its intended scope,--that of providing compensation benefits for
industrial injuries, rather than branching out into the field of general health
insurance benefits.” Duncan v. City
of Charlotte, 234 N.C. 86, 91, 66 S.E.2d 22, 25 (1951) (citations
omitted). “Thus the injury must spring
from the employment in order to be compensable under the Act. This requirement is often called the rule of
causal relation.” Jernigan, Workers’
Compensation §5-3, at 38 (citation omitted); see also Duncan, 234
N.C. at 91, 66 S.E.2d at 25 (stating that “[the] rule of causal relation is the
very sheet anchor of the Workmen’s Compensation Act”) Therefore, our analysis rests on the statutory language “arising
out of and in the course of the employment.”
See N.C.G.S. §97-2(6).
“An injury is said to arise out of the employment when it .
. . is a natural and probable consequence or incident of” the employment and “a
natural result of one of [its] risks,” so that “there is some causal relation
between the accident and the performance of some service of the
employment.” Taylor, 260 N.C. at
438, 132 S.E.2d at 868 (citations omitted).
Risk of injury from a go-cart accident is not something a reasonable
person would contemplate upon entering service as a volunteer EMT, as it is not
a risk one would associate with the anticipated risks inherent in the job. See Gallimore v. Marilyn’s Shoes, 292
N.C. 399, 404, 233 S.E.2d 529, 532-33 (1977) (stating that if it can be shown
that the risk was incidental to employment, so that a reasonable person
familiar with the whole situation would have contemplated the risk when he entered
the employment, then the injury will have arisen out of the employment). The type of injury sustained by plaintiff in
the instant case could more aptly be characterized as a hazard which is equally
common to the general public outside of employment as an EMT. Roberts v. Burlington Indus., Inc.,
321 N.C. 350, 358, 364 S.E.2d 417, 422-23 (1988); Cole v. Guilford Cty.,
259 N.C. 724, 727, 131 S.E.2d 308, 311 (1963); Bryan v. T.A. Loving Co.
& Assocs., 222 N.C. 724, 728, 24 S.E.2d 751, 754 (1943) (noting that
when an injury “comes from a hazard to which the [worker] would have been
equally exposed apart from the employment or from a hazard common to others, it
does not arise out of the employment” and that “[t]he causative danger must be
peculiar to the work and not common to the neighborhood”; that is, “[i]t must
be incidental to the character of the business and not independent of the
relation of” employer and employee).
The Act’s application to injuries occurring during
recreational and social activities related to employment is well established in
the jurisprudence of North Carolina. In
1964 this Court issued its opinion in Perry v. American Bakeries Co.,
262 N.C. 272, 136 S.E.2d 643 (1964). Perry
involved an employee injured while diving into a swimming pool at the hotel
where the employee was attending a sales meeting. In Perry, the plaintiff was directed by his supervisor to
attend the sales meeting. Id. at
273, 136 S.E.2d at 644. The plaintiff
was told to arrive at the provided accommodations and location for the sales
meeting by 4:30 p.m. the day before the meeting began. Id.
The employer held a social hour for the attending employees at 5:30 p.m.
that day, which the plaintiff attended before going to dinner with a
coworker. 262 N.C. at 273, 136 S.E.2d
at 644-45. Upon returning to the
provided accommodations after dinner, the plaintiff, along with other
employees, swam in the pool maintained by the hotel for use of its guests. Id. at 273, 136 S.E.2d at 645. The plaintiff sustained a fractured cervical
vertebra while diving. Id.
This Court in Perry stated:
Where, as a
matter of good will, an employer at his own expense provides an occasion for
recreation or an outing for his employees and invites them to participate, but
does not require them to do so, and an employee is injured while engaged in the
activities incident thereto, such injury does not arise out of the
employment.
262
N.C. at 275, 136 S.E.2d at 646 (emphasis added) (citing Lewis v. W.B.
Lea Tobacco Co., 260 N.C. 410, 132 S.E.2d 877 (1963); Berry v. Colonial
Furn. Co., 232 N.C. 303, 306-07, 60 S.E.2d 97, 100 (1950); Hildebrand v.
McDowell Furn. Co., 212 N.C. 100, 112-13, 193 S.E. 294, 303 (1937)). This Court further stated: “Plaintiff’s activity in swimming was not a
function or duty of his employment, was not calculated to further directly or
indirectly his employer’s business to an appreciable degree, and was authorized
only for the optional pleasure and recreation of plaintiff while off duty
during his stay at the Inn.” Perry, 262
N.C. at 275, 136 S.E.2d at 646. Perry
is on point with our decision today as plaintiff was invited, but not
required, to operate a go-cart in conjunction with a purely voluntary “Fun Day”
arranged as a matter of good will by defendant. Id. Plaintiff was
injured “while engaged in the activities incident thereto,” and as illustrated
by Perry, “such injury does not arise out of the employment.” Id.
Further, plaintiff’s operation of the go-cart was not a function of
her duties or responsibilities to Salter Path Fire & Rescue. Plaintiff’s activities were authorized
merely for her optional pleasure and recreation while she was off duty.
Consistent with this Court’s holding in Perry, the
North Carolina Court of Appeals articulated a six question analysis from
Larson’s treatise to aid in determination of whether an injury arose out of
employment:
(1) Did the employer in fact sponsor the event?
(2) To what extent was attendance really voluntary?
(3) Was there some degree of encouragement to
attend evidenced by such factors as:
a. taking a record of attendance;
b. paying for the time spent;
c. requiring the employee to work if he did not
attend; or
d. maintaining a known custom of attending?
(4) Did the employer finance the occasion to a
substantial extent?
(5) Did the employees regard it as an employment
benefit to which they were entitled as of right?
(6) Did
the employer benefit from the event, not merely in a vague way through better
morale and good will, but through such tangible advantages as having an
opportunity to make speeches and awards?
Chilton
v. Bowman Gray Sch. of Med., 45 N.C. App. 13, 15, 262 S.E.2d 347, 348
(1980) (citing 1A Larson, Workmen’s Compensation Law §22.23, p. 5-85, currently
2 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law §22.04[3],
at 22-23 (2006)). We are not unmindful
that Chilton has provided a helpful mode of analysis for the Court of
Appeals, the Industrial Commission, and the practitioner for the last
twenty-seven years. However, while the Chilton
factors may serve as helpful guideposts in this inquiry, this Court has never
recognized these factors as controlling and we decline to do so here, as a
review of this Court’s precedent in Perry makes the disposition of this
case clear.
Rice v. Uwharrie Council Boy Scouts of America is
distinguishable from the case sub judice. 263 N.C. 204, 139 S.E.2d 223 (1964). The plaintiff in Rice was employed by the defendant as a
District Scout Executive and was one of four executives of the Uwharrie Council
directed to attend a Scouting Executive Conference as a training course for
professional scouting. Id. at
205, 207, 139 S.E.2d at 224-25, 226. In
that case, the evidence and findings of the Industrial Commission “permitted
the inference [that] the employer impliedly required participation in” the
injurious activity, namely a fishing trip, not merely to amuse and entertain
the employee, but to aid his advancement and make him better qualified to carry
on his work in scouting. Id. at
208, 139 S.E.2d at 227. This Court
noted that “under such circumstances injuries suffered by employees in
recreational activities are compensable.”
Id. (citation omitted).
Unlike Rice, plaintiff’s participation was not required in the
case sub judice. Plaintiff was
invited to attend the event, but in no way was she required to do so. Rice is further distinguishable, as
the plaintiff in that case was engaged in activities of the sort one would
normally expect of the youth program, Boys Scouts of America, which emphasizes
outdoor activities. Defendant Salter
Path Fire & Rescue is not a social organization, and one would not normally
associate involvement in amusement park type recreational activities with the
duties and functions inherent in the work required of an EMT. Plaintiff attended the “Fun Day” of her own
will and for her own personal benefit and pleasure. Therefore, we hold that an employee who, on a purely voluntary
basis, attends a “Fun Day” and is injured while participating therein, cannot
be said to have suffered a compensable injury which arises out of and in the
course of the employment. Thus
defendant is not responsible under the Act for the non-compensable injuries
plaintiff suffered during her participation.
For the reasons discussed above, the Industrial Commission’s
findings of fact do not support its conclusion of law that plaintiff suffered
an injury by accident arising out of her employment. Based on the clear language of the Workers’ Compensation Act and
this Court’s prior decisions, we hold plaintiff’s injury was not compensable as
it did not arise out of her employment.
We therefore reverse the decision of the Court of Appeals and remand
this case to that court for further remand to the Industrial Commission for
proceedings not inconsistent with this opinion. As to the issue presented in defendants’ petition for
discretionary review, we conclude that discretionary review was improvidently
allowed.
REVERSED AND REMANDED; DISCRETIONARY REVIEW IMPROVIDENTLY
ALLOWED.
Justice HUDSON did not participate in the consideration or
decision of this case.
1. Although plaintiff was a volunteer
EMT, both parties have stipulated that the parties are subject to and bound by
the Workers’ Compensation Act and that, for purposes of the Act, an
employer-employee relationship existed between plaintiff and defendant on the
date of the injury.
2. Plaintiff was also employed as a waitress at a seasonal restaurant. However, the issues on appeal solely relate to plaintiff’s benefits from her service with defendant.
IN THE SUPREME COURT OF NORTH CAROLINA
No. 181A06
FILED: 26 JANUARY 2007
TAMMY P. FROST, Employee
v.
SALTER PATH FIRE & RESCUE, Employer,
VOLUNTEER SAFETY WORKERS’ COMPENSATION
FUND, Carrier
Justice TIMMONS-GOODSON dissenting.
Because I believe the record sustains the findings of fact
made by the Industrial Commission, and because I believe those findings of fact
support the Commission’s conclusions of law, I respectfully dissent.
Appellate courts’ review of a decision by the Industrial
Commission is limited to examining “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). This Court’s duty “‘goes no
further than to determine whether the record contains any evidence tending to
support the [Industrial Commission’s] finding.’” Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414
(1998) (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144
S.E.2d 272, 274 (1965)). Further,
“[t]he evidence tending to support plaintiff’s claim is to be viewed in the
light most favorable to plaintiff, and plaintiff is entitled to the benefit of every
reasonable inference to be drawn from the evidence.” Id. In other
words, evidence that might lead another finder of fact to make a different
decision is irrelevant unless the Commission’s findings are absolutely
unsupported by any evidence in the record.
While the majority articulates the appropriate standard of
review, it fails to follow it. Not only
does the majority fail to give deference to the findings of fact as instructed
by this Court’s precedent, the majority makes little mention of the
Commission’s findings of fact.
The issue before us is whether the Commission’s findings of
fact are supported by any competent evidence in the record and whether those
findings support the Commission’s conclusions of law. The Industrial Commission concluded that plaintiff’s injury arose
out of and in the course of her employment with Salter Path Fire & Rescue
(“Salter Path”) and was therefore compensable.
In my opinion, there was sufficient evidence in the record to support
the findings of fact and to sustain the Commission’s conclusions of law.
The Industrial Commission entered the following findings of
fact pertinent to our inquiry:
2. Plaintiff was injured at the Salter Path Fire and Rescue Fun Day on September 30, 2001. Fun Day was essentially an appreciation day, in which the community thanked volunteer firemen and rescue workers for their contribution and work in the community. The purpose for Fun Day was to boost the morale and goodwill of Salter Path volunteers, show appreciation for the unpaid volunteers of Salter Path, and to help develop camaraderie among the volunteers. Fun Day was initiated in 2000.
3. The Fun Day event was put on by Salter Path Fire and Rescue Corporation and was paid for out of a Special Donations Fund, rather than out of the Department’s operating budget. Salter Path Fire and Rescue Corporation paid for the admission of the volunteers and their families to Lost Treasures Golf and Raceway (“Lost Treasures”), the private amusement park where Fun Day was held, and provided lunch to the participants while at Fun Day.
4. Fun Day was a voluntary event, but Salter Path volunteers and their families were urged to attend if possible. Many volunteers did not attend. Those in attendance signed in at the Treasure Island main window and were given passes for free rides and a free lunch. One purpose of this sign-in sheet was to allow Treasure Island to compute the total cost, according to the discount ticket rates provided. Another possible purpose was to give management of the fire and rescue unit an attendance log. Notwithstanding that attendance was voluntary, Salter Path did keep attendance for the event. The employer received a tangible benefit from this event in that it helped to improve morale of volunteers and it provided an opportunity for leaders of the fire and rescue unit to encourage volunteers to continue their participation as volunteers. The volunteers viewed Fun Day as a benefit of their voluntary employment. The Chief of Salter Path, Ritchie Frost, told plaintiff that he wanted her to attend Fun Day.
5. On the morning of
September 30, 2001, plaintiff called Carteret County Communications
(“Communications”) to tell the dispatcher to set the tones for noon for all of
the volunteers’ beepers to remind them of Fun Day. Plaintiff and her husband then took the Salter Path Fire &
Rescue ambulance to Treasure Island and proceeded inside to ride the
go-carts. Plaintiff had signed in as
“on duty” prior to her injury and had intended to give a pep speech thanking
the EMS volunteers and encouraging their continued participation with Salter
Path just as she had done at the previous Fun Day.
The majority contends that no competent evidence supports the Commission’s findings of fact. As the Court of Appeals noted with regard to finding 3, however, “three witnesses testified without objection that Salter Path did sponsor the event and defendants do not dispute that the volunteers’ admission to the event was paid for by Salter Path’s special contribution fund.” __ N.C. App. __, __, 628 S.E.2d 22, 25 (2006). Competent evidence also supports finding 4. Specifically, volunteers who attended Fun Day signed in at the entrance to Lost Treasures. Further, it is undisputed that the Chief of Salter Path told plaintiff he wanted her to attend the event. Testimony also indicated that Salter Path benefitted from the event because the event encouraged volunteers’ continued participation. Thus, the Commission appropriately found that improving morale in a volunteer organization amounts to a tangible benefit. With regard to finding 5, plaintiff testified that she signed in as “on duty” the morning of Fun Day when she picked up the ambulance to drive it to Lost Treasures. In addition, she testified that she planned to give a pep talk to the volunteers at Fun Day. In light of the record, I would hold that the Commission’s findings are supported by competent evidence.
The next step of our inquiry is whether the Commission’s
findings of fact support its conclusions of law. The Commission based its conclusions of law on the test set out
in Chilton v. Bowman Gray School of Medicine, 45 N.C. App. 13, 15, 262
S.E.2d 347, 348 (1980), for whether an injury sustained at an
employer-sponsored recreational event or social activity arose out of and in
the course of employment. The majority
declines to adopt Chilton, but does recognize that it is consistent with
this Court’s holding in Perry v. American Bakeries Co., 262 N.C. 272,
275, 136 S.E.2d 643, 646 (1964). I
agree. In the instant case, the
Commission concluded that “the evidence in the instant cause establishes
affirmative answers to at least four of the six Chilton questions, and,
arguably, all six.” Therefore, the
Commission concluded that “[p]laintiff suffered an injury by accident on
September 30, 2001, arising out of . . . employment with the
defendant-employer.” I agree that the Chilton
factors support plaintiff’s position.
The majority bases its analysis on Perry v. American
Bakeries Co., 262 N.C. 272, 275, 136 S.E.2d 643, 646 (1964), in which this
Court held that an employee’s injury that occurred while swimming during free
time at an employer-sponsored sales meeting did not arise out of his
employment. The plaintiff in Perry
was a route salesman supervisor for American Bakeries in Raleigh. Id. at 272, 136 S.E.2d at 644. At the time of the accident, he was
attending a sales meeting in Greensboro.
Id. at 273, 136 S.E.2d at 644-45. The plaintiff stayed overnight at an inn, and his lodging was
paid for by his employer. Id. at
273, 136 S.E.2d at 644. He arrived in
Greensboro the day before the meeting began and attended a social hour hosted
by his employer. Id. After the social hour ended, the plaintiff
went to dinner with a coworker, then returned to his hotel and decided to swim
in the hotel pool. Id. at 273,
136 S.E.2d at 645. At that time, the
plaintiff sustained a diving injury. Id. As a result of his injury, he remained in
the hospital for sixty-five days and was out of work for five months. Id.
His employer paid the plaintiff’s salary during those five months. Id.
The majority distinguishes Rice v. Uwharrie Council Boy
Scouts of America, 263 N.C. 204, 207-08, 139 S.E.2d 223, 226-27 (1964), in
which this Court affirmed the Industrial Commission’s finding that an injury
sustained by an employee while deep-sea fishing at an employer-sponsored
conference arose out of his employment.
The plaintiff in Rice was a District Scout Executive from
Lexington, North Carolina. Id.
at 205, 139 S.E.2d at 224. At the time
of his injury, he was attending a five-day Scouting Executive Conference at
Jekyll Island, Georgia, at his employer’s expense. Id. at 205, 139 S.E.2d at 225. The plaintiff fractured his leg during a deep-sea fishing outing,
and the evidence before the Commission indicated that such recreational activities
were “‘a planned part of the program.’”
Id. at 207, 139 S.E.2d at 226.
The plaintiff was out of work for more than five months and was paid his
regular salary during that time. Id.
at 205, 139 S.E.2d at 224.
Based on the Commission’s findings of fact, I find the
instant case to be more comparable to Rice than to Perry. In Rice, this Court found that “[t]he
evidence and findings permit the inference the employer impliedly required
participation in the scheduled activities, . . . not merely for the purpose of
furnishing amusement and entertainment for the employee.” Id. at 208, 139 S.E.2d at 227. Similarly, here, the Commission’s findings
permit the inference that the event was not wholly voluntary and that the event
benefitted Salter Path in a tangible way.
I refer specifically to the Commission’s findings that plaintiff was
told by the Chief of Salter Path that he wanted her to attend Fun Day and that
the event benefitted Salter Path in terms of volunteer retention. Moreover, Perry can be distinguished
from the instant case in the same way this Court in Rice distinguished
it. In Rice, the Court recited
the facts of Perry as follows:
“Mr. Perry entered the swimming pool entirely on his own after the
social hour provided by his employer was over.” Id. (emphasis added).
Here, however, plaintiff was injured while engaging in activities at the
very event her employer asked her to attend.
Because the Commission’s findings of fact are supported by some credible evidence in the record and because those findings support the Commission’s conclusions of law, I would affirm the Court of Appeals. Therefore, I respectfully dissent.