Avent v. PLT Constr., Emp'r, Bituminous Ins. Co.
| Decision Date | 02 April 2013 |
| Docket Number | No. COA12–1107.,COA12–1107. |
| Citation | 741 S.E.2d 512 |
| Parties | McGowen Lee AVENT, Employee, Plaintiff, v. PLT CONSTRUCTION, Employer, Bituminous Insurance Company, Carrier, Defendants. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by plaintiff from opinion and award entered 18 May 2012 by the North Carolina Industrial Commission. Heard in the Court of Appeals 12 February 2013.
Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson; and Thomas and Farris, P.A., by Albert S. Thomas, Jr., for plaintiff appellant.
Teague, Campbell, Dennis & Gorham, L.L.P., by Jan N. Pittman, for defendant appellees.
McGowen Lee Avent (“plaintiff”) appeals from an opinion and award entered by the North Carolina Industrial Commission (“the Commission”) denying compensation for injuries plaintiff sustained in an automobile accident while on his way to his assigned worksite for PLT Construction (“PLT”). On appeal, plaintiff contends the Commission erred in finding that he was commuting to a fixed worksite and concluding that the automobile accident in which he was involved therefore did not arise out of or occur within the course of his employment with PLT. In the alternative, plaintiff argues the Commission erred in failing to conclude that his traveling to his worksite was a substantial part of the services for which he was employed by PLT. After careful review, we affirm.
PLT is a construction company headquartered in Wilson, North Carolina. PLT's business primarily involves the construction of road beds, and PLT maintains multiple projects at various worksites throughout North Carolina at any given time. A single project can last from one month to five years in duration. PLT offers three types of employment: 1) full-time, 2) part-time, and 3) temporary. Full-time employees have the opportunity to maintain their employment with PLT and move to another project at the conclusion of the particular project to which they are assigned. However, if no job is available within a drivable distance for the employee or if the employee is not willing to travel to a newly assigned project, the employee is terminated. In some instances, PLT offers per diem expenses for employees traveling to a worksite, and some employees are provided company cars to travel to worksites.
Plaintiff first began working for PLT as a motor grader operator in 1998 and was assigned to work between Hampstead, North Carolina and Holly Ridge, North Carolina. In April 2000, plaintiff voluntarily left his employment with PLT and subsequently returned to work with PLT in October 2000. Since October 2000, plaintiff has worked for PLT during several different time periods.
Plaintiff's most recent employment with PLT began on 14 September 2009. At the time plaintiff applied for and accepted his most recent employment with PLT, he was living in Surf City, North Carolina. Plaintiff was hired by PLT as a full-time employee to perform work as a motor grader operator. Plaintiff was assigned to work on a project in Kinston, North Carolina, which was expected to last approximately three years. Plaintiff was paid on an hourly basis commencing when he arrived at the Kinston worksite and ending when he stopped working for the day. During his most recent employment with PLT, plaintiff was not separately compensated for travel to and from work and was not provided company transportation to and from work. As a full-time employee, plaintiff expected to continue his employment with PLT following completion of the Kinston project.
On 2 November 2009, while traveling to the Kinston worksite from his home in Surf City, plaintiff was involved in a serious automobile accident that left him paraplegic. Plaintiff was driving his personal vehicle at the time of the accident.
On 12 April 2010, plaintiff filed a Form 18 Notice of Accident to Employer stating that he was injured while “driving his own vehicle to an out of town, temporary work site[.]” On 14 April 2010, PLT filed a Form 19 Report of Employee's Injury. Thereafter, on 26 April 2010, PLT and its insurance carrier, Bituminous Insurance Company (collectively, “defendants”), filed a Form 61 Denial of Worker's Compensation Claim, contending that plaintiff's injury did not arise out of or occur within the course of his employment with PLT. Accordingly, on 28 October 2010, plaintiff filed a Form 33 Request That Claim be Assigned for Hearing.
On 6 April 2011, a hearing was held before Deputy Commissioner Philip A. Baddour, III (“Deputy Commissioner Baddour”), and on 31 October 2011, Deputy Commissioner Baddour entered an opinion and award denying plaintiff's claim after finding and concluding that plaintiff's automobile accident while driving from his home to his assigned job location did not occur within the course of his employment with PLT. Plaintiff appealed Deputy Commissioner Baddour's opinion and award to the Full Commission, and on 18 May 2012, the Full Commission entered an opinion and award affirming the deputy commissioner's opinion and award with minor modifications. On 15 June 2012, plaintiff entered timely written notice of appeal from the Commission's opinion and award to this Court.
Appellate review of an opinion and award of the Industrial Commission is generally limited to consideration of two issues: “(1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are justified by the findings of fact.” Clark v. Wal–Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005). “The Industrial Commission's findings of fact ‘are conclusive on appeal if supported by competent evidence even though there is evidence to support a contrary finding.’ “ Roberts v. Century Contractors, Inc., 162 N.C.App. 688, 691, 592 S.E.2d 215, 218 (2004) (quoting Murray v. Associated Insurers, Inc., 341 N.C. 712, 714, 462 S.E.2d 490, 491 (1995)). “This “ Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (quoting Anderson v. Lincoln Constr. Co ., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). “This Court reviews the Commission's conclusions of law de novo.” Roberts, 162 N.C.App. at 691, 592 S.E.2d at 218.
Furthermore, “[t]he Commission's determination that an accident arose out of and in the course of employment is a mixed question of law and fact.” Ramsey v. Southern Indus. Constructors, Inc., 178 N.C.App. 25, 30, 630 S.E.2d 681, 685 (2006). Accordingly, when presented with an issue such as the one in the present case, “[t]his Court reviews the record to determine if the findings of fact and conclusions of law are supported by the record.” Id.
Plaintiff argues on appeal that the Commission erred in finding and concluding that he was commuting to a fixed worksite at the time of his automobile accident and that he was therefore barred from compensation for his injuries. Plaintiff contends that the “traveling salesman exception” to the “going and coming rule” applies to the facts of this case because he had no fixed worksite or fixed working hours at the time of his automobile accident.
“For an injury to be compensable under the Worker's Compensation Act, the claimant must prove three elements: (1) that the injury was caused by an accident; (2) that the injury was sustained in the course of the employment; and (3) that the injury arose out of the employment.” Hollar v. Montclair Furniture Co., 48 N.C.App. 489, 490, 269 S.E.2d 667, 669 (1980). “The ‘going and coming’ rule states that an accident occurring while an employee travels to and from work generally does not arise out of or in the course of employment.” Hunt v. Tender Loving Care Home Care Agency, Inc., 153 N.C.App. 266, 269, 569 S.E.2d 675, 678 (2002). Ordinarily, “[a]n 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 go home.” Id. Therefore, “[a]ccidents falling within this rule are not compensable.” Id.
However, our Courts have recognized multiple exceptions to the going and coming rule:
(1) an employee is going to or coming from work but is on the employer's premises when the accident occurs (premises exception); (2) the employee is acting in the course of his employment and in the performance of some duty, errand, or mission thereto (special errands exception); (3) an employee has no definite time and place of employment, requiring [him] to make a journey to perform a service on behalf of the employer (traveling salesman exception); or (4) an employer contractually provides transportation or allowances to cover the cost of transportation (contractual duty exception).
Stanley v. Burns Int'l Sec. Servs., 161 N.C.App. 722, 725, 589 S.E.2d 176, 178 (2003) (citations omitted). Under the “traveling salesman” exception, “ ‘[i]f travel is contemplated as part of the employment, an injury from an accident during travel is compensable.’ “ Munoz v. Caldwell Mem'l Hosp., 171 N.C.App. 386, 390, 614 S.E.2d 448, 451 (2005) (alteration in original) (quoting Hunt, 153 N.C.App. at 269, 569 S.E.2d at 678). Such claims are compensable because “ ‘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.’ “ Hunt, 153 N.C.App. at 270, 569 S .E.2d at 678 (ellipsis in original) (quoting Creel v. Town of Dover, 126 N.C.App. 547, 556–57, 486 S.E.2d 478, 483 (1997)). Thus, “[t]he applicability of the ‘traveling salesman’ [exception] to the facts [of a particular case] depends upon the determination of whether [the] plaintiff had fixed job hours and a fixed job location.” Id.
In the present case, the Commission made the following two findings of fact:
11. At the time of his accident, Plaintiff was...
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