Chavis v. Tlc Home Health Care

• Decision Date: 16 August 2005
• Docket Number: No. COA04-1454.,COA04-1454.
• Citation: 616 S.E.2d 403
• Court: North Carolina Supreme Court
• Parties: Leigh Ann CHAVIS, Employee-Plaintiff, v. TLC HOME HEALTH CARE, Employer-Defendant, and Pharmacists' Mutual Insurance Company, Carrier-Defendant.

616 S.E.2d 403

Leigh Ann CHAVIS, Employee-Plaintiff, v. TLC HOME HEALTH CARE, Employer-Defendant, and Pharmacists' Mutual Insurance Company, Carrier-Defendant.

No. COA04-1454.

Court of Appeals of North Carolina.

August 16, 2005.

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Appeal by Defendants from Opinion and Award entered 1 April 2004 by North Carolina

Industrial Commission. Heard in the Court of Appeals 8 June 2005.

Jones Martin Parris & Tessener Law Offices, PLLC, by J. Michael Riley and Gregory M. Martin, Raleigh, for plaintiff-appellee.

Young Moore & Henderson, P.A., by J. Aldean Webster, III, Raleigh, for defendant-appellants.

WYNN, Judge.

Under the Workers' Compensation Act, a traveling employee is in the course of employment once a personal deviation has been completed and the direct business route has been resumed. Cauble v. Soft-Play, Inc., 124 N.C.App. 526, 529, 477 S.E.2d 678, 679 (1996), disc. review denied, 345 N.C. 751, 485 S.E.2d 49 (1997). In this case, Plaintiff-Employee traveled to a patient's home, left on a personal errand, and was injured in an automobile accident on her return to the patient's home. Because the personal errand was complete and Plaintiff had resumed her business travel route, we hold that the accident occurred in the course of her employment making her injury compensable. Accordingly, we affirm the full Commission's Opinion and Award on this and other issues presented on appeal.

The evidence from the record on appeal tends to show that Plaintiff Leigh Ann Chavis, a certified nursing assistant ("CNA"), worked as a "runner" for Defendant TLC Home Health Care. As a "runner," Ms. Chavis traveled to multiple patients' homes in a single day. TLC Home Health Care reimbursed Ms. Chavis for the mileage she incurred from her home to the first patient's home, to and from each patient's home, and from her last patient's home to her home. TLC Home Health Care paid Ms. Chavis an hourly wage only for the time she spent in-home with the patient and not for the travel time.

On 26 October 2000, Ms. Chavis drove to her first patient's home at 8:00 a.m. to perform three-and-a-half hours of work. However, upon arriving at the home, the patient, Linda Galegos, informed Ms. Chavis that she was leaving to take care of some business at school. Ms. Galegos informed Ms. Chavis that she would be back home in approximately twenty minutes.

TLC Home Health Care had a policy that did not permit Ms. Chavis to wait in a patient's home when the patient was not there. But TLC Home Health Care had no written policy on what Ms. Chavis should have done when a patient told her to wait twenty minutes. Ms. Chavis testified that, on a previous occasion, Barbara Locklear, TLC Home Health Care's scheduling supervisor, informed her to "just go get something to eat or just do something till the time she come (sic) back, but if she's going to be gone more than an hour or two, you have to go to another client." But Ms. Locklear testified that in that situation Ms. Chavis should have called TLC Home Health Care to see if she should be immediately assigned to another patient.

Ms. Chavis told Ms. Galegos that she would meet her back at her home. Ms. Chavis then drove directly to her father's place of employment, dropped off his wallet, and drove directly back to Ms. Galegos's house. 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. Ms. Chavis's father contacted Ms. Locklear that day to inform her of the accident.

Ms. Chavis came under the care of George Dawson, III, M.D. for the injuries to her right foot. Dr. Dawson applied a soft cast, and Ms. Chavis was unable to walk without crutches for several months. On 10 November 2000, Dr. Dawson recommended that Ms. Chavis be out of work for a four-month period. On 6 April 2001, Dr. Dawson gave her a note to return to working regular duty on 9 April 2001. Before returning to work in April 2001, Ms. Chavis contacted TLC Home Health Care to inquire about sedentary work but was told none was available. Nonetheless, Ms. Chavis's contract was not terminated. Ms. Chavis filed a claim for workers' compensation which TLC Home Health Care denied. The claim came for a hearing before Deputy Commissioner Ronnie E. Rowell, who awarded Ms. Chavis temporary total disability from 26 October 2000 to 9 April 2001 and for an additional 43.2 weeks thereafter. TLC Home Health Care appealed to the full Commission. On 1 April 2004, the full Commission filed an Opinion and Award affirming Deputy Commissioner Rowell's award including all travel expenses. TLC Home Health Care was also ordered to pay all medical expenses and attorney's fees. TLC Home Health Care appeals from this Opinion and Award.

On appeal, TLC Home Health Care argues that the full Commission erred by concluding that (1) Ms. Chavis's injury "arose out of" and "in the course of" her employment; (2) Ms. Chavis's average weekly wage should include what she was paid in milage reimbursement; (3) TLC Home Health Care must provide medical treatment should it become necessary; (4) Ms. Chavis was temporarily and totally disabled from 26 October 2000 to 9 April 2001; (5) Ms. Chavis gave notice of her injury to TLC Home Health Care; and (6) evidence should be excluded. We disagree.

The standard of review for this Court in reviewing an appeal from the full Commission is limited to determining "whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law." Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). Our review "`goes no further than to determine whether the record contains any evidence tending to support the finding.'" Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (citation omitted). The full Commission's findings of fact "are conclusive on appeal when supported by competent evidence," even if there is evidence to support a contrary finding, Morrison v. Burlington Indus., 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981), and may be set aside on appeal only "when there is a complete lack of competent evidence to support them[.]" Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000). It is not the job of this Court to re-weigh the evidence. Adams, 349 N.C. at 681, 509 S.E.2d at 414. Further, all evidence must be taken in the light most favorable to the plaintiff, and the plaintiff "is entitled to the benefit of every reasonable inference to be drawn from the evidence." Deese, 352 N.C. at 115, 530 S.E.2d at 553.

First, TLC Home Health Care argues that the full Commission erred in concluding that Ms. Chavis's accident arose out of her and in the course of her employment. We disagree.

Under the Workers' Compensation Act, an injury is compensable only if it is the result of an "accident arising out of and in the course of the employment[.]" N.C. Gen.Stat. § 97-2(6) (2004). "Whether an injury arose out of and in the course of employment is a mixed question of law and fact, and the Industrial Commission's findings in this regard are conclusive on appeal if supported by competent evidence." Culpepper v. Fairfield Sapphire Valley, 93 N.C.App. 242, 247, 377 S.E.2d 777, 780, aff'd per curiam, 325 N.C. 702, 386 S.E.2d 174 (1989) (citing Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977)). The employee must establish the "arising out of" and "in the course of" requirements to be entitled to compensation. Roberts v. Burlington Indus., Inc., 321 N.C. 350, 354, 364 S.E.2d 417, 420 (1988).

TLC Home Health Care argues that Ms. Chavis was not "in the course" of her employment when the accident occurred because she was on a personal errand. "The words `in the course of' refer to the time, place, and circumstances under which an accident occurred. The accident must occur during the period and place of employment." Ross v. Young Supply Co., 71 N.C.App. 532, 536-37, 322 S.E.2d 648, 652 (1984). North Carolina adheres to the rule that 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. Creel v. Town of Dover, 126 N.C.App. 547, 556, 486 S.E.2d 478, 483 (1997); Cauble, 124 N.C.App. at 528, 477 S.E.2d at 679.

Ms. Chavis's work required her to continuously travel to and from different patients' homes. Therefore, she was "in the course" of her employment while traveling unless on a personal errand. Id.

Indeed, we cannot agree with the dissent's claim that Ms. Chavis does not fit into this "traveling salesman" exception because she had fixed hours of employment. Ms. Chavis's job duty, "designated runner", required her to work for multiple patients in a day. She did not have a guarantee of a fixed number of patients in a day, and was only paid for the actual in-home time with the patients. Moreover, she did not have fixed work hours, as the number of patients she worked with in a day varied, which varied her hours.

Furthermore, TLC Home Health Care had a policy that did not permit Ms. Chavis to wait at a patient's home when the patient was not there. On a previous occasion, Ms. Locklear informed Ms. Chavis to "just go get something to eat or just do something till the time she come back, but if she's going to be gone more than an hour or two, you have to go to another client." This policy was in effect to prevent claims of theft against TLC Home Health Care employees and to comply with government regulations. By leaving the Galegos home, Ms. Chavis complied with the orders of TLC Home Health Care and furthered her employer's interests. See Cauble, 124 N.C.App. at 529, 477 S.E.2d at 680 (employee's death was "in the course of" employment where his travel, which included eating in a restaurant, was...