Aaron v. New Fortis Homes, Inc.

• Decision Date: 18 November 1997
• Docket Number: No. COA96-1539,COA96-1539
• Citation: 493 S.E.2d 305,127 N.C.App. 711
• Parties: Thomas AARON, Employee, Plaintiff, v. NEW FORTIS HOMES, INC., Employer, and The Maryland Insurance Group, Insurance Carrier, Defendants.
• Court: North Carolina Court of Appeals

Page 305

493 S.E.2d 305

127 N.C.App. 711

Thomas AARON, Employee, Plaintiff, v. NEW FORTIS HOMES, INC., Employer, and The Maryland Insurance

Group, Insurance Carrier, Defendants.

No. COA96-1539.

Court of Appeals of North Carolina.

Nov. 18, 1997.

Certiorari Denied May 22, 1998.

Law Offices of Nancy P. White by Nancy P. White and J. David Stradley, Raleigh, for plaintiff-appellee.

Wishart, Norris, Henninger & Pittman, P.A. by W. Timothy Moreau, Charlotte, for defendant-appellants.

EAGLES, Judge.

We first consider whether the Commission erred in finding that plaintiff's injuries were caused by an accident arising out of and in the course of his employment with New Fortis Homes, Inc. The standard of appellate review of an opinion and award of the Industrial Commission is well established. Our review "is limited to a determination of (1) whether the Commission's findings of fact are supported by any competent evidence in the record; and (2) whether the Commission's findings justify its legal conclusions." Counts v. Black & Decker Corp., 121 N.C.App. 387, 389, 465 S.E.2d 343, 345, disc. review denied, 343 N.C. 305, 471 S.E.2d 68 (1996)(citing Watkins v. City of Asheville, 99 N.C.App. 302, 392 S.E.2d 754, disc. review denied, 327 N.C. 488, 397 S.E.2d 238 (1990)).

Defendants first contend that the so-called "Going and Coming" rule applies to bar plaintiff's claim, arguing that injuries occurring while a covered worker is traveling to and from his place of employment are not compensable. See Jennings v. Backyard Burgers of Asheville, 123 N.C.App. 129, 131, 472 S.E.2d 205, 207 (1996). Defendant further argues that the "special errand" exception to the "Going and Coming" rule does not apply. Defendant contends the accident did not arise in the course of employment because plaintiff was not performing any specific duties for defendant and that the trip did not benefit the employer. Further, defendant argues, under the "increased risk" analysis, the hazard was common and plaintiff was not exposed to a greater danger than that of the general public. See Roberts v. Burlington Industries, Inc., 321 N.C. 350, 358, 364 S.E.2d 417, 422-23 (1988). We are not persuaded.

The Industrial Commission concluded that the accident occurred while plaintiff was performing a special errand that benefitted the employer. There were sufficient findings of fact supported by competent evidence on the record to support that conclusion of law.

Ordinarily, an injury occurring while an employee travels to or from work does not arise in the course of employment and is not compensable. See Jennings, 123 N.C.App. at 131, 472 S.E.2d at 207. The evidence here showed that the automobile accident occurred as plaintiff was in route from the worksite to the hospital while transporting a fellow employee, McDuff. Furthermore, travel was not an incident of plaintiff's employment as a roofer and construction worker. See Hicks v. Brown Shoe Co., 64 N.C.App. 144, 147, 306 S.E.2d 543, 544 (1983), disc. review denied, 311 N.C. 304, 317 S.E.2d 680 (1984) (injury arose in course of employment where traveling shoe salesperson killed while driving from one sales call to another).

The journey here was brought into the course of employment because plaintiff was performing a "special errand" that directly benefitted the employer. See McBride v. Peony Corp., 84 N.C.App. 221, 352 S.E.2d 236 (1987). There was testimony that McDuff had been injured on the job and required medical attention and that treatment was necessary before work could continue. Further, by protecting the health of McDuff and obtaining proper treatment for his injury, New Fortis Homes' exposure to a more serious workers' compensation claim by McDuff was reduced. Accordingly, we conclude there was competent evidence of record and adequate findings of fact to support the Commission's conclusion that the automobile accident occurred while plaintiff was on a "special errand" for defendant-employer.

We next consider whether the Commission erred in finding that plaintiff's injuries were causally related to the automobile accident and that plaintiff remains incapable of earning any wages since the accident.

Defendants claim that plaintiff has failed to prove that his right knee problems were causally related to the automobile accident. The plaintiff had various degenerative changes and other conditions of the knee that predated the accident. Plaintiff's treating physician, Dr. Edmund Campion, testified that there was "absolutely no way of telling" whether plaintiff's knee problems were caused by an old injury or a new injury. Additionally, defendants claim that there is evidence that plaintiff is working. Accordingly, defendants argue that plaintiff obviously is capable of earning wages.

There is competent evidence to support the Commission's finding that plaintiff's knee injury is causally related to the automobile accident. Our Supreme Court stated the standard of medical proof in workers' compensation cases in Click v. Pilot Freight Carriers, Inc., 300...