All opinions are subject to modification
and technical correction prior to official publication in the
NO. COA08-439
Filed: 16 December 2008
DIANNA S. FLOYD,
Employee,
Plaintiff,
v.
I.C.
File No. 448304
EXECUTIVE PERSONNEL GROUP,
Employer,
NATIONAL BENEFITS AMERICA, INC.,
Carrier,
and
PENCO PRODUCTS, INC.,
Employer,
ACE USA/ESIS,
Carrier,
Defendants.
Appeal
by plaintiff from Opinion and Award entered 4 December 2007 by the North
Carolina Industrial Commission. Heard in
the Court of Appeals 25 September 2008.
Horn &
Vosburg, PLLC, by Martin J. Horn, for plaintiff appellant.
Cranfill Sumner
& Hartzog, L.L.P., by David A. Rhoades and Meredith Taylor Berard for Penco
Products, Inc. and ACE USA/ESIS defendant appellees.
Teague, Campbell,
Dennis & Gorham, L.L.P., by Bruce A. Hamilton, for Executive Personnel
Group and National Benefits America, Inc., defendant appellees.
McCULLOUGH, Judge.
Dianna
S. Floyd (“plaintiff”) appeals from an Opinion and Award of the North Carolina
Industrial Commission (“the Commission”) denying her claim for benefits under
the North Carolina Workers’ Compensation Act for injuries sustained during an
automobile collision. We affirm.
“[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). “The Commission’s findings of fact are conclusive on appeal
when supported by such competent evidence, ‘even though there [is] evidence
that would support findings to the contrary.’”
Plaintiff
has only challenged a portion of one of the Commission’s findings, Finding of
Fact 12. The Commission’s remaining unchallenged findings establish the
following:
Defendant
Executive Personnel Group (“EPG”) is a placement agency that supplies temporary
workers to various companies, including, among others, defendant Penco
Products, Inc. (“Penco”). Penco is a storage product manufacturer. EPG is
insured by defendant National Benefits America, Inc. (“National Benefits”), and Penco is insured
by defendant Ace USA/ESIS (“Ace USA”).
Pursuant
to an arrangement between Penco and EPG, Penco paid EPG a fee that was
approximately thirty-two percent higher than the wages paid to the temporary
workers. In return, EPG paid the temporary workers hourly wages, handled
administrative matters, and obtained a reasonable profit. EPG agreed to provide
workers’ compensation insurance for all temporary workers that it supplied to
Penco.
Once
an EPG temporary worker accrued a certain number of hours working for Penco,
usually between 500 to 1500 hours, the EPG temporary worker became eligible for
permanent employment with Penco. A temporary worker’s eligibility for permanent
employment, however, was contingent upon a Penco supervisor’s assessment of
Penco’s staffing needs and the worker’s ability. EPG did not participate in
Penco’s hiring decisions.
All
applicants for permanent employment with Penco were required to undergo a pre-employment
physical examination and drug screening. After passing the physical examination
and drug screening, the prospective employee was required to complete insurance
and tax forms, among other paperwork.
Moreover, there had been occasions where applicants had completed and
passed the pre-employment physical and drug screening, but were never hired by
Penco.
Plaintiff
began working for EPG in April of 2003 and had worked “off and on” as a
temporary worker at Penco for about two years.[Note 1] In February of
2004, plaintiff completed an application for permanent employment with Penco.
In June of 2004, Penco supervisors advised plaintiff that she would have to
complete a drug screening and physical examination. Penco scheduled the
physical examination with Dr. Domingo Rodriguez-Cue in
[p]laintiff understood that the physical
would be on her own time and that she would not be paid for attending or for
the mileage incurred by attending the exam. Defendant EPG did not require
plaintiff to undergo the physical examination or drug testing to maintain her
temporary employment.
On 17 June 2004, at 10:50 a.m.,
plaintiff underwent a pre-employment physical examination and drug screen at
Dr. Rodriguez-Cue’s office. On the way home from the examination, at 12:51
p.m., plaintiff was involved in an automobile collision.
On 21
July 2004, plaintiff filed a Form 18 claim for workers’ compensation benefits
for wrist, ankle, and knee injuries sustained during the collision pursuant to
N.C. Gen. Stat. §§97-22 to -24 (2007).
This claim was denied. The matter
was first heard before a Deputy Commissioner on 20 July 2006. On 26 April 2007,
the Deputy Commissioner entered an Opinion and Award finding that plaintiff was
not an employee of Penco at the time of the automobile accident, but that
plaintiff did have an employment relationship with EPG and that EPG was liable
for plaintiff’s injuries.
After
a hearing on the matter, the Full Commission affirmed the Deputy’s
determination that Penco was not plaintiff’s employer at the time of the
collision and was therefore not liable for plaintiff’s injuries; however, the
Commission concluded that plaintiff’s collision did not arise out of, and was
not in the course of, her employment with EPG. Therefore, the Commission
reversed the Deputy’s determination that EPG was liable under the Workers’
Compensation Act for plaintiff’s injuries.
Plaintiff appeals.
I. Liability of Penco
First,
we address plaintiff’s contention that the Commission erred in concluding that
the motor vehicle accident did not arise from and did not occur in the scope
and course of plaintiff’s employment with Penco. We find our decision in Huntley
v. Howard Lisk Co., 154 N.C. App. 698, 573 S.E.2d 233 (2002), disc.
review denied, 357 N.C. 62, 579 S.E.2d 389 (2003), to be controlling on the
facts of this case.
It
is well established that our Workers’ Compensation Act (“the Act”), N.C. Gen.
Stat. §§97-1 to -200 (2007), applies only when an employer-employee
relationship exists. Hicks v.
every person engaged in . . . employment
under any appointment or contract of hire or apprenticeship, express or
implied, oral or written, including
aliens, and also minors, whether lawfully or unlawfully employed, but excluding
persons whose employment is both casual and not in the course of the trade,
business, profession, or occupation of his employer . . . .
N.C. Gen. Stat. §97-2(2)
(2007) (emphasis added). Thus, the existence of an employment agreement is
essential for the formation of an employer-employee relationship. Huntley,
154 N.C. App. at 702, 573 S.E.2d at 235.
In Huntley,
the plaintiff, a prospective employee, was injured while taking a driving test
that was part of the job application process for a position with the defendant.
Here,
the Commission found that “[a]lthough it was plaintiff’s understanding that she
was going to be hired as a permanent employee by Penco . . . if she passed the
physical and drug screen, the greater weight of the evidence shows that the
successful completion of Penco’s pre-employment physical and drug test did not
guarantee employment.” The Commission
also found that there had been instances where employees had passed the pre-employment
physical exam and drug screen, but were never hired by Penco. Plaintiff did not
assign error to these findings of fact, and they are, therefore, binding on
appeal. Johnson, 157 N.C. App. at 180, 579 S.E.2d at 118. Accordingly, the Commission’s factual
findings support the Commission’s conclusion that plaintiff failed to prove the
requisite employer-employee relationship necessary to recover workers’
compensation benefits from Penco under the Act.
II. Liability of EPG
Next,
we turn to plaintiff’s argument that the Commission erred in determining that
plaintiff’s car accident did not arise from or occur within the scope of her
employment with EPG. Plaintiff contends that EPG directly benefited from having
plaintiff obtain permanent employment with Penco. She argues that Penco’s hiring of EPG workers furthered EPG’s
business relationship with Penco and served as incentive for temporary workers
to seek employment with EPG. Therefore,
plaintiff reasons that plaintiff’s doctor’s appointment was related to and was
within the scope of her employment with EPG. We disagree.
For an
injury to be compensable under the Act, it must be an “injury by accident
arising out of and in the course of employment[.]” N.C. Gen. Stat. §97-2(6). “Whether an injury
arises out of and in the course of . . . employment is a mixed question of fact
and law, and our review is thus limited to whether the findings and conclusions are supported by
the evidence.” Creel v. Town of
The
phrase “arising out of” refers to the requirement that there be some causal
connection between the injury and claimant’s employment. “In the course of” refers
to the time and place constraints on the injury; the injury must occur
“during the period of employment at a
place where an employee’s duties are calculated to take him[.]”
Here,
the Commission found as fact in Finding of Fact 12:
[P]laintiff’s having her pre-employment
physical on June 17, 2004 was solely for the purpose of the possibility of
employment with defendant Penco and was not in furtherance of or related to her
employment as a temporary worker with defendant EPG. Plaintiff’s temporary
employment through defendant EPG and assignment
to defendant Penco did not require plaintiff to attend the pre-employment
physical and testing. . . . [The physical and drug screen were] not related
to her duties for defendant EPG. Defendant EPG was not involved in the payment
of or scheduling of the physical exam and drug testing. In addition, plaintiff’s
job duties with defendant EPG did not require plaintiff to drive her personal
vehicle to fulfill her employment duties.{note 2]
There
is competent evidence in the record to support this finding of fact. There is
evidence in the record that EPG is a temporary placement agency that placed
plaintiff to work at the Penco manufacturing plant and that plaintiff’s
placement with Penco did not require her to drive from worksite to worksite.
Likewise, Eleanor Gardner, the Human Resources Manager at Penco, testified that
Penco does not require temporary workers to pursue permanent employment. There
is evidence that EPG did not pay for plaintiff’s doctor’s visit, nor did EPG
have any role in scheduling the visit.
Likewise, plaintiff testified that “she wasn’t on company time” at the
time of the collision.
The
Commission’s finding that plaintiff’s job duties with EPG did not require her
to drive an automobile, supports the conclusion that the risk of an automobile
collision was not a risk to which plaintiff was exposed because of the nature
of her employment with EPG. As such, plaintiff’s employment with EPG was not a
contributing proximate cause of plaintiff’s injury; therefore, plaintiff’s
injury did not “arise from” her employment with EPG. Gallimore, 292 N.C.
at 404, 233 S.E.2d at 533. Moreover, the Commission’s findings of fact also
support the conclusion that plaintiff’s injury did not occur within the scope
of her employment with EPG, as the injury occurred on “her own time” rather
than on company time, and it did not occur at a place where plaintiff’s duties
were “calculated to take [her].” Creel, 126 N.C. App. at 552-53, 486
S.E.2d at 478. Thus, the Commission
properly concluded that plaintiff’s automobile accident did not arise out of or
in the course or her employment with EPG, and plaintiff’s injuries are,
therefore, not compensable under the Act.
III. Arguments Not Before the Commission
Plaintiff
raises two additional arguments in support of her contention that the
Commission erred in concluding that the automobile accident did not occur
during the course of plaintiff’s employment with EPG and Penco. First, relying
on the common law loaned servant doctrine,[Note
3] plaintiff contends that she was an employee of both the temporary agency
EPG and Penco, the special employer, at the time of the collision. Second,
plaintiff contends that although her work for Penco usually required her to
work inside of the manufacturing plant, the automobile accident occurred during
the scope of her employment with Penco under the special errand exception. [Note 4]
Plaintiff,
however, raises these arguments for the first time on appeal. The “law does not
permit parties to swap horses between courts in order to get a better mount” on
appeal. Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934). We briefly note that we find neither of these
arguments persuasive; however, because these arguments were not raised before
the Full Commission, we will not address them on appeal.
IV. Sufficiency of Factual Findings
By her
final assignments of error, plaintiff contends that the Commission erred by
failing to make findings of fact regarding the consequences of not submitting
to a pre-employment physical examination and drug screening, the details
surrounding the scheduling of plaintiff’s doctor appointment, and the benefits
to both employers of having their employees submit to such examinations. We
disagree.
“‘[T]he
Commission is not required . . . to find facts as to all credible evidence.
That requirement would place an unreasonable burden on the Commission. Instead
the Commission must find those facts which are necessary to support its
conclusions of law.’” Peagler v. Tyson Foods, Inc., 138 N.C. App. 593,
602, 532 S.E.2d 207, 213 (2000) (citation omitted). As previously discussed,
the Commission made sufficient findings of fact to support its conclusions of
law. Therefore, its findings of fact are sufficient. This assignment of error
is overruled.
For
the foregoing reasons, we affirm the Commission’s Opinion and Award denying
plaintiff’s claim for workers’ compensation benefits for the injuries sustained
during her automobile collision.
Affirmed.
Judges
TYSON and
NOTES
1. The Full Commission did not expressly find this fact;
however, there is evidence in the record to support it. We include it solely to
help establish the factual background of the case.
2. Finding of Fact 12 is the only finding of fact that
plaintiff challenges on appeal. Plaintiff only assigns error, however, to the
extent that the “Commission distinguishes between the employers EPG (the
temporary personnel service) and Penco (the manufacturing business.)” While it is not clear to which portion of
Finding of Fact 12 plaintiff objects, we assume arguendo, that plaintiff
has assigned error to all of Finding of Fact 12.
3. Under the loaned servant doctrine, “a general employee of
one can also be the special employee of another while doing the latter’s work
and under his control.”
4. 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.” Dunn v. Marconi Communications, Inc., 161 N.C. App. 606, 612,
589 S.E.2d 150, 155 (2003).