Chavis v. TLC Home Health Care

TYSON, Judge

dissenting.

The majority’s opinion holds Ms. Chavis’s “accident occurred in the course of her employment making her injury compensable.” Ms. Chavis was not at work or “on-duty” and was completing a personal errand when the accident occurred. Also, this single car accident occurred after Ms. Chavis “blacked out,” an idiopathic condition that was the sole cause of the accident. Ms. Chavis’s injury did not “arise out of’ her employment. I respectfully dissent.

I. Standard of Review

The standard of review of an appeal from a decision by the Commission is well-established. “In reviewing an order and award of the Industrial Commission in a case involving workmens!’] compensation, [an appellate court] is limited to a determination of (1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are supported by the findings.” Moore v. Federal Express, 162 N.C. App. 292, 297, 590 S.E.2d 461, 465 (2004) (citation omitted). “As long as the Commission’s findings are supported by competent evidence of record, they will not be overturned on appeal.” Rackley v. Coastal Painting, 153 N.C. App. 469, 472, 570 S.E.2d 121, 124 (2002) (citation omitted).

However, “the Industrial Commission’s conclusions of law are reviewable de novo.” Whitfield v. Laboratory Corp. of Am., 158 N.C. App. 341, 348, 581 S.E.2d 778, 783 (2003) (citing Lewis v. Craven Regional Medical Center, 122 N.C. App. 143, 468 S.E.2d 269 (1996)). Under de novo review, the appellate court “considers the matter anew and freely substitutes its own judgment for the agency’s judgment.” Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002) (citation omitted).

*380II. “Arising Out of and in the Course of’ Employment

This Court has held that an employee who is injured in an accident while on a personal errand does not have a compensable claim. Bowser v. N.C. Dep’t of Corr., 147 N.C. App. 308, 311, 555 S.E.2d 618, 621 (2001), disc. rev. denied, 355 N.C. 283, 560 S.E.2d 796 (2002) (A traveling employee whose lodging and meals are provided by the employer at a specific location without reimbursement for meals taken at a different location is not within the course and scope of her employment while going to or returning from a meal taken at that different location.) Ms. Chavis’s injuries that occurred during a purely personal errand to deliver her father’s wallet to him did not “arise out of’ or occur “in the course of’ her employment.

TLC Home Care argues and the majority’s opinion agrees a plaintiff must prove her injury occurred under both conditions of “arising out of’ and “in the course of’ employment to receive workers’ compensation. See Ross v. Young Supply Co., 71 N.C. App. 532, 536-37, 322 S.E.2d 648, 652 (1984).

The words ‘arising out of’ refers to the origin or cause of the accident. The employee must be about his masters’ business. Taylor v. Wake Forest, 228 N.C. 346, 45 S.E. 387 (1947). The words ‘in the course of’ refer to the time and place and circumstances under which an accident occurred. The accident must occur during the period and place of employment. Plemmons v. White’s Service, 213 N.C. 148, 195 S.E. 370 (1938).

Id.

Here, Ms. Chavis was engaged in a purely personal errand to “drop off her father’s wallet,” was not at work, and was “off-duty” when her accident occurred. The accident did not occur while Ms. Chavis was at work or while she was on the employer’s premises. Ms. Chavis was off-duty and on a purely personal errand at the time and place the accident occurred.

III. Compensability

A. “Going and Coming” Rule

Under the “going and coming” rule, accidents which occur while an employee travels to and from work generally do not arise out of or in the course of employment. Royster v. Culp, Inc., 343 N.C. 279, 281, 470 S.E.2d 30, 31 (1996). The injury is not compensable unless the injured employee proves her injury occurred by showing one of the *381exceptions to the “going and coming” rule, i.e. “traveling salesman,” “contractual duty,” “special errand,” and “dual purpose.” Dunn v. Marconi Communications, Inc., 161 N.C. App. 606, 611, 589 S.E.2d 150, 154 (2003).

Generally, the employee must be injured while at work or on the employer’s premises to receive workers’ compensation. Hunt v. Tender Loving Care Home Care Agency, Inc., 153 N.C. App. 266, 269, 569 S.E.2d 675, 678, disc. rev. denied, 356 N.C. 436, 572 S.E.2d 784 (2002); see also Stanley v. Burns Int’l Sec. Servs., 161 N.C. App. 722, 725, 589 S.E.2d 176, 178 (2003) (citing Ellis v. Service Co., Inc., 240 N.C. 453, 456, 82 S.E.2d 419, 421 (1954)) (“An 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 return home.”). In Stanley, “[t]he [employee], was driving her own vehicle at the time of the accident, and her employer did not pay [her] for travel time to and from work or reimburse her for mileage [, and] . . . the [employee] was no longer on the employer’s premises.” 161 N.C. App. at 725, 589 S.E.2d at 178. There, we held the employee was subject to the “going and coming” rule and affirmed the Commission’s denial of compensation. Here, Ms. Chavis has also failed to show she falls within any exception to the “going and coming” rule. See Royster, 343 N.C. at 281, 470 S.E.2d at 31. Exceptions to the “going and coming” rule do not allow compensate for injuries that occur while an employee is engaged in purely personal errands.

B. “Traveling Salesman”

The “traveling salesman” exception allows compensation for injuries to employees “whose work requires travel away from the employer’s premises are within the course of their employment continuously during such travel, except when there is a distinct departure for a personal errand.” 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); Brewer v. Powers Trucking Co., 256 N.C. 175, 179, 123 S.E.2d 608, 611 (1962). In Jacobs v. Sara Lee Corp., an employee fell and injured his knee on an employer-sponsored trip while coming from a baseball game not included on his employee itinerary. 157 N.C. App. 105, 106-07, 577 S.E.2d 696, 698 (2003). “The Commission concluded as a matter of law, ‘plaintiff’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.’ ” Id.

*382This Court has also held, “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 v. Town of Dover, 126 N.C. App. 547, 556-57, 486 S.E.2d 478, 483 (1997); see also Hunt, 153 N.C. App. at 270, 569 S.E.2d at 678. (“The applicability of the ‘traveling salesman’ rule to the facts at bar depends upon the determination of whether plaintiff had fixed job hours and a fixed job location.”).

The majority’s opinion holds Ms. Chavis has proven she is entitled to compensation under the “traveling salesman” exception simply because she was required to travel “continuously” throughout the day to different patients. Their opinion also asserts Ms. Chavis had no “fixed” place of employment.

Ms. Chavis has failed to prove she is entitled to compensation under the “traveling salesman” exception for several reasons. Ms. Chavis was not on an overnight trip as is usually required by this exception. See Jacobs, 157 N.C. App. at 106-07, 577 S.E.2d at 698. While Ms. Chavis did not have one fixed place of employment, she did have fixed hours of employment. She was not compensated for time when she was not on duty. An employee must simultaneously have no definite place of work and no definite hours to be considered a traveling employee. Hunt, 153 N.C. App. at 270, 569 S.E.2d at 678. Here, Ms. Chavis was “off-duty” and was engaged in a personal errand while “off-duty” for her personal gain. See Bowser, 147 N.C. App. at 311, 555 S.E.2d at 621 (A traveling employee was denied compensation when on a personal errand to lunch.). Ms. Chavis failed to call her employer for a new assignment when her patient left the house. Although Ms. Chavis was told not to remain in the patient’s house, nothing required her to leave the patient’s premises, particularly where the patient would be gone for only “20 minutes.”

C. “Contractual Duty”

“The ‘contractual duty’ exception states that ‘injuries received by an employee while traveling to or from his place of employment are usually not covered . . . unless the employer furnishes the means of transportation as an incident of the contract of employment.’ ” Dunn, 161 N.C. App. at 612, 589 S.E.2d at 155 (quoting Strickland v. King and Sellers v. King, 293 N.C. 731, 733, 239 S.E.2d 243, 244 (1977)). Even where the employer provides transportation to the employee, if the employee is on a personal errand neither the accident nor injury is compensable. In Dunn, an employee’s injuries from.a car accident *383were found not to be compensable by the Commission, even though he drove a company car and claimed he was going home for the sole intent and purpose of retrieving his employer’s equipment for a job site. 161 N.C. App. at 613, 689 S.E.2d at 156.

Like any other employee who commutes to work at personal expense, Ms. Chavis was required by TLC Home Care to provide her own reliable transportation to maintain employment. Additionally, “ ‘[i]f the transportation is provided permissively, gratuitously, or as an accommodation, the employee is not within the course of employment while in transit.’ ” Hunt, 153 N.C. App. at 270, 569 S.E.2d at 679 (citing Robertson v. Construction Co., 44 N.C. App. 335, 337, 261 S.E.2d 16, 18 (1979)).

TLC Home Care assigned error to the Commission’s finding of fact number four: “[P]laintiff was reimbursed for mileage incurred from her home to the first patient, from one patient’s home to the next, and then from her last patient to her home at the end of the day.” The transcript shows and Ms. Chavis admitted that during the week of her accident, “the rule applicable to [her] at TLC was that [she was] not reimbursed from [her] home to [her] first client.” Ms. Chavis did not seek reimbursement for mileage from TLC Home Care from her home to her first patient on her reimbursement slip for the day of the accident. TLC Home Care did not substitute mileage reimbursement for wages, but gave Ms. Chavis a mileage reimbursement in addition to her wage for travel between patients, not travel from Ms. Chavis’s home to her first patient. Ms. Chavis never sought reimbursement or was paid mileage reimbursement from her home to her first patient. The Commission’s conclusion of law number four is unsupported by competent evidence.

D. “Special Errand” and “Dual Purpose”

Ms. Chavis is not eligible for compensation under the remaining exceptions to the “going and coming” rule. 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, 142, 343 S.E.2d 551, 553, disc. rev. denied, 318 N.C. 417, 349 S.E.2d 600 (1986); Felton v. Hospital Guild, 57 N.C. App. 33, 34, 291 S.E.2d 158, 159, aff’d by an equally divided court, 307 N.C. 121, 296 S.E.2d 297 (1982); Dunn, 161 N.C. App. at 612, 589 S.E.2d at 155.

*384In Dunn, the “dual purpose” exception is defined as follows:

“When 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.”

161 N.C. App. at 612-13, 589 S.E.2d at 155 (quoting Felton, 57 N.C. App. at 37, 291 S.E.2d at 161 (quotation omitted)).

Ms. Chavis was not on a “special errand” for her employer, nor was she on an out-of-town business trip for a “dual purpose.” She was not on an errand for a patient, but purely for her personal benefit. Since Ms. Chavis has never made an overnight trip for her employer and was not being paid or traveling to her next patient, the employer received no benefit from her personal errand. The “special errand” and the “dual purpose” exceptions are inapplicable.

IV. Idiopathic Condition

The facts are undisputed and the majority’s opinion acknowledges, “While driving back to Ms. Galegos’s house, Ms. Chavis blacked out and ran her car off the road into the side of a church sustaining injuries to her right foot.” TLC Home Care argues Ms. Chavis’s accident did not “arise out of’ her employment because the accident was solely caused by her idiopathic condition. I agree. “ ‘Arising out of the employment’ refers to the origin or cause of the accidental injury.” Roberts v. Burlington Industries, 321 N.C. 350, 354, 364 S.E.2d 417, 420 (1988). Sustaining injuries from a single car accident after Ms. Chavis “blacked out” was a risk that she was equally exposed to and was not due to her employment. “[A] contributing proximate cause of the injury must'be a risk inherent or incidental to the employment, and must be one to which the employee would not have been equally exposed apart from the employment.” Culpepper v. Fairfield Sapphire Valley, 93 N.C. App. 242, 248, 377 S.E.2d 777, 781, aff’d, 325 N.C. 702, 386 S.E.2d 174 (1989) (citing Gallimore v. Marilyn’s Shoes, 292 N.C. 399, 404, 233 S.E.2d 529, 533 (1977)). “[T]he causative danger must be peculiar to the work and not com*385mon to the neighborhood.” Gallimore, 292 N.C. at 404, 233 S.E.2d at 532. Ms. Chavis’s injuries are not compensable on these facts.

TLC Home Care also argues that Ms. Chavis’s single car accident was caused when she “blacked out,” an idiopathic condition and not from any increased travel risk. Again, I agree. “[Wjhere the accident and resultant injury arise out of both the idiopathic condition of the workman and hazards incident to the employment, the employer is liable. But not so where the idiopathic condition is the sole cause of the injury.” Vause v. Equipment Co., 233 N.C. 88, 92-93, 63 S.E.2d 173, 176 (1951) (emphasis supplied).

Ms. Chavis testified, “ [t]he only thing I remember was I was fixing to hit the side of the road. I know I was going around a curve, the next thing I know I was hitting the side of the church. That’s the only thing I can remember.” Ms. Chavis testified she experienced a blackout. The majority’s opinion asserts, “Ms. Chavis’s job duties required her to constantly travel in her car, increasing her travel risk.” This notion is unsupported by any facts. Ms. Chavis commuted to and from work in her personal vehicle. She was off-duty and engaged in a purely personal errand when the accident occurred. Her risk was no greater than any other commuting employee or where an off-duty employee leaves work to get a meal, go to the bank, or engage in any other personal pursuit where all employees who drive are “equally exposed apart from the employment.” Culpepper, 93 N.C. App. at 248, 377 S.E.2d at 781. Ms. Chavis’s injuries were caused solely by an accident as a result of her blackout, which the Commission acknowledged was an “idiopathic condition.” The Commission’s opinion and award should be reversed.

V. Conclusion

Nothing in these facts show Ms. Chavis’s injuries “arose out of’ or occurred “in the course of’ her employment. Her injuries occurred when “going and coming” to work and while she was on a purely personal errand. A distinguishable line exists to “constitute a ‘distinct’ and ‘total’ departure on a personal errand” from the normal work routine or route. Munoz v. Caldwell Memorial Hospital, 171 N.C. App. 386, 388, 614 S.E.2d 448, 450 (2005). Ms. Chavis was off-duty and returning to her original job site to resume work when the accident occurred. She was not at work or reimbursed for mileage when the accident occurred. The “going and coming” rule precludes compensation and Ms. Chavis has failed to prove she comes within any exception to the rule.

*386The majority’s decision will allow any off-duty employee who is injured while traveling on a purely personal errand to assert a workers’ compensation claim. Workers’ compensation insurance is not general liability insurance and requires a causal relation of the injury to the employment. See Bryan v. Church, 267 N.C. 111, 115, 147 S.E.2d 633, 635 (1966) (“The rule of causal relation is ‘the very sheet anchor of the Workmen’s Compensation Act,’ and has been adhered to in our decisions, and prevents our Act from being a general health and insurance benefit act.”) (citation omitted).

The majority’s opinion is an unprecedented and unwarranted extension of employers’ liability for workers who are injured while not at work and while engaging in a purely personal pursuit. I cannot distinguish the facts here from when an off-duty employee leaves work in their personal vehicle and engages in an activity that has no connection to or benefit for their employer.

Millions of workers leave and return to work daily in their personal vehicles for personal meals, doctor’s appointments, banking, and any other personal errands that have no connection to or benefit for their employer. If an accident or injury occurs during these purely personal trips, the coming and going rule applies and no workers’ compensation liability accrues to their employer. The cause of Ms. Chavis’s injury was solely from a single car accident after she “blacked out.” The Commission’s opinion and award is erroneous and should be reversed. I respectfully dissent.