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NO. COA02-413
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2003
TIM
JACOBS,
Employee-Plaintiff
v. North
Carolina Industrial Commission
I.C.
File No. 940754
SARA
LEE CORPORATION,
Employer-Defendant
and
KEMPER
INSURANCE COMPANIES,
Carrier-Defendant
Appeal by plaintiff from an opinion and award entered 7 January 2002 by the North Carolina Industrial Commission. Heard in the Court of Appeals 23 January 2003.
Frederick
R. Stann, for plaintiff-appellant.
Hedrick,
Eatman, Gardner & Kincheloe, L.L.P., by Jeffrey A. Kadis and Hope F.
Smelcer, for defendants-appellees.
CALABRIA,
Judge.
Plaintiff
appeals asserting the North Carolina Industrial Commission (“Commission”) erred
by determining that plaintiff was on a personal deviation from employment
related activities when he was injured and therefore is not entitled to
compensation under the Workers’ Compensation Act. Commissioner Laura Kranifeld
Mavretic dissented from the majority’s opinion, agreeing with Deputy
Commissioner Amy L. Pfeiffer’s determination that plaintiff was not on a
personal deviation but rather was returning to work when he was injured, and
therefore his injury is compensable.
Pertinent
to this appeal, the Commission found the following facts. Plaintiff was
employed by defendant Sara Lee Corporation (“Sara Lee”) as a salesman for
eighteen years before he was injured. His job duties “consisted mostly of
outside sales activities” which “involved traveling to the places of business
of customers and prospective customers to promote defendant-employer’s products
and to take orders.” Sara Lee offered trips to food shows as an incentive to
its sales force. Plaintiff “had taken approximately twenty such trips during
his employment with [Sara Lee].” Sara Lee provided transportation and spending
money for the employees, and the employees were paid their normal salaries. Plaintiff
won such a trip in May 1999, and Sara Lee provided plaintiff with a program of
the food show events. On 23 May 1999, while plaintiff was in Chicago on one
such trip, plaintiff bought a ticket to the White Sox-Yankees game and
“personally chose to attend the ball game.” “While exiting the ballpark,
plaintiff slipped and fell, twisting and rupturing a tendon in his right knee.”
In finding of fact number six, the Commission found:
Plaintiff
indicated that he left the ball game early because it started to rain and that
he intended to go to a ‘Dave & Busters’ party which was listed on a program
of events available to salespeople who, like plaintiff, had won the privilege
of taking the trip to Chicago. Defendant-employer did not expect plaintiff to
attend the ball game; the baseball game was not on the itinerary of events
related to the food show; and travel to and from the ball game was [] entirely
for plaintiff’s benefit and did not serve any interests of defendant-employer.
Plaintiff was free to attend, or not attend, events on the itinerary that was
provided to him; defendant-employer anticipated that Plaintiff would attend
some portion of the food show only. Plaintiff was free to travel to baseball
games, take city tours, site see, or to remain in his hotel; plaintiff was not
required to attend any particular function, and plaintiff was not required to
attend a ‘Dave & Busters’ party, which was scheduled to begin several hours
after the time plaintiff left the ball park. The greater weight of the evidence
is that the attendance [at] the ball game was a deviation from any benefit the
employer could have anticipated from plaintiff’s attendance at any food show
event, and plaintiff was still on his deviation to the ballgame when he fell.
The Commission concluded as a matter of
law, “[p]laintiff’s injury while on a deviation to a baseball game is not
compensable. Plaintiff had not ended his personal deviation when he was injured
leaving the ballpark.”
Plaintiff
appeals asserting the Commission erred by finding as fact and concluding as a
matter of law that plaintiff’s injury arose while he was on a personal
deviation. Defendant asserts the Commission properly determined that plaintiff
was on a personal deviation, and, alternatively, his injury is not compensable
because plaintiff’s attendance at the Dave & Busters party was not work
related and did not benefit Sara Lee.
This
Court’s review of workers’ compensation cases is “limited to the consideration
of two questions: (1) whether the Full Commission’s findings of fact are
supported by competent evidence; and (2) whether its conclusions of law are
supported by those findings.” Calloway v. Memorial Mission Hosp., 137
N.C. App. 480, 484, 528 S.E.2d 397, 400 (2000). “This Court does not weigh the
evidence and decide the issue on the basis of its weight; rather, this Court’s
duty goes no further than to determine whether the record contains any evidence
tending to support the finding.” Devlin v. Apple Gold, Inc., ___ N.C.
App. ___, ___, 570 S.E.2d 257, 261 (10-15-2002). “If there is competent
evidence to support the findings, they are conclusive on appeal even though
there is evidence to support contrary findings.” Boles v. U.S. Air Inc.,
148 N.C. App. 493, 498, 560 S.E.2d 809, 812 (2002). “The Industrial Commission’s
conclusions of law, however, are reviewable de novo.” Holley v. ACTS,
Inc., 152 N.C. App. 369, 371, 567 S.E.2d 457, 459 (2002).
In
the case at bar, there is competent evidence to support the Commission’s
findings of fact. Plaintiff admits “it was certainly reasonable for the
Commission to find that the ballgame was a personal departure.” Plaintiff
asserts the Commission erred in finding of fact number six, finding that
“plaintiff was still on his deviation to the ballgame when he fell.” This
finding is supported by competent evidence. Plaintiff’s testimony explains, “I
was going to catch a cab, leaving the stadium to go [to the Dave & Busters
party]_ almost on the sidewalk to catch a cab. And I was walking down a ramp at
about a forty-five degree angle.” Plaintiff elaborated, “we walked down the
first [cement ramp] from the third level to the second level okay. And I got
about [a] third or halfway down the second level and my leg just went up in the
air . . . [a]ll the weight came down on my knee and I just twisted my knee.”
This is competent evidence to support the finding that plaintiff was still at
the stadium, on a deviation, at the time of the injury. This finding of fact,
in turn, supports the conclusion of law that “[p]laintiff’s injury while on a deviation
to a baseball game is not compensable.”
Plaintiff
argues, however, that the Commission’s opinion should be reversed because the
conclusion of law that “[p]laintiff’s injury while on a deviation to a baseball
game is not compensable” results from an error of law. Plaintiff asserts North
Carolina law provides for compensation for an employee who is injured on a
business trip after starting to return to work from a personal deviation
because the deviation is deemed to have ended. We hold the Commission did not
err.
Generally,
‘[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.’ 1 Larson §19.00, at 4-352. However, an injury occurring after
‘the personal deviation has been completed and the direct business route has
been resumed’ is compensable. Id. at §19.32.
Creel v. Town of Dover, 126 N.C. App. 547, 557, 486 S.E.2d 478,
483 (1997). In Creel, plaintiff, on an errand for his employer, made a
personal deviation, and was injured upon returning to complete the errand.
Plaintiff and defendant disagreed as to where, precisely, plaintiff was
injured. Plaintiff asserted he was on Carmichael Street, in furtherance of the
errand, and had resumed the business route. Defendant argued that plaintiff was
injured “before [he] ever ma[de] it onto the roadway,” and therefore his
deviation had not ended because “he had not yet resumed travel upon the
roadway” where the employment required him to travel. Creel, 126 N.C.
App. at 557-558, 486 S.E.2d at 484. This Court found sufficient evidence
supported the Commission’s finding that plaintiff “was injured while riding . .
. on Carmichael Street at a point when his ‘personal deviation ha[d] been
completed and the direct business route ha[d] been resumed’“ and therefore
affirmed the Commission’s award for plaintiff. Creel, 126 N.C. App. at
558,486 S.E.2d at 484 (quoting 1 Larson §19.32). As Creel demonstrates,
unless the deviation is determined to be insubstantial, an argument not
asserted by plaintiff in this case, compensability depends on whether the
employee is “on the direct business route” or “on a personal deviation” when he
is injured.
Plaintiff
asserts Chandler v. Teer Co., 53 N.C. App. 766, 281 S.E.2d 718 (1981),
is controlling. In Chandler, this Court noted, a “traveling employee is
compensated for injuries received while returning to his hotel, while going to
a restaurant or while returning to work after having made a detour for
his own personal pleasure.” Chandler, 53 N.C. App. at 770, 281 S.E.2d at
721 (emphasis added). In Chandler, the employee was compensated for
injuries occurring while returning to work from a personal deviation. Plaintiff
asserts that, like Chandler, he was returning to work from a personal
deviation, and therefore on injury occurring on the return trip from his
deviation should be compensable. However, the Court, in Chandler,
explained that recovery was based on North Carolina’s “rule that an employee
injured while traveling to and from his employment on the employer’s
premises is covered by the Act. . . . [And] it [wa]s undisputed that [the
plaintiff] was back within the confines of [the job site] when the accident
occurred.” Chandler, 53 N.C. App. at 769, 281 S.E.2d at 720 (emphasis
added). Therefore, the plaintiff’s injury was compensable in Chandler
not because the plaintiff was “returning to work,” but rather because he had
“returned to the route of the business trip,” and was, in fact, on the job
site. Although the Court used the general language “returning to work,” Chandler
highlights that the operative fact is not when the employee decided to
return from a deviation and travel towards the business route, but rather
whether in fact he had returned to the business route or site when he
was injured. In the case at bar, although plaintiff decided to leave his
personal deviation and return to the business route, the Commission, based upon
competent evidence, found as fact that plaintiff had not in fact exited
the ball park and this finding supports the Commission’s conclusion that
plaintiff was still on a deviation when he was injured.
The
test developed by our case law is whether, at the time of the injury, the
employee was on a substantial personal deviation, and therefore his injury is
not compensable, or whether the employee had returned to the business route,
and therefore his injury is compensable under the Workers’ Compensation Act. We
hold the Commission did not commit an error of law in determining that
plaintiff was still on his personal deviation at the ball game when he was
injured and therefore his injury is not a compensable injury.
Although
the Commission made findings of fact regarding plaintiff’s attendance at the
events listed by Sara Lee on the weekend’s itinerary, the Commission made no
findings of fact or conclusions of law as to whether the Dave & Busters
party was work related. However, since this case is controlled by personal deviation
analysis, we, like the Commission, need not reach the issue of whether the Dave
& Busters party was work related.
Since
competent evidence supports the Commission’s findings of fact, which in turn
support the conclusions of law, and the conclusions of law are consistent with
applicable law, we affirm the decision of the Commission.
Affirmed.
Judges
McGEE and HUNTER concur.