Creel v. Town of Dover

• Citation: 486 S.E.2d 478,126 N.C.App. 547
• Decision Date: 01 July 1997
• Docket Number: No. COA96-47,COA96-47
• Parties: James Randall CREEL, Employee, Plaintiff-Appellant, v. TOWN OF DOVER, Self-Insured Employer (administered by GAB Business Services, Inc.), Defendant-Appellant.
• Court: North Carolina Court of Appeals

Page 478

486 S.E.2d 478

126 N.C.App. 547

James Randall CREEL, Employee, Plaintiff-Appellant, v. TOWN OF DOVER, Self-Insured Employer (administered by GAB Business Services, Inc.), Defendant-Appellant.

No. COA96-47.

Court of Appeals of North Carolina.

July 1, 1997.

Sumrell, Sugg, Carmichael & Ashton, P.A. by Rudolph A. Ashton, III, and Scott C. Hart, New Bern, and Kellum & Jones by Michael E. Garland, New Bern, for plaintiff.

Brooks, Stevens & Pope, P.A. by Daniel C. Pope, Jr., Michael C. Sigmon, and Patricia Wilson Medynski, Cary, for defendant.

JOHN, Judge.

Defendant appeals determination by the North Carolina Industrial Commission (the Commission) that plaintiff, mayor of the Town of Dover, sustained an injury arising out of and in the course of his employment. Defendant also assigns error to the Commission's conclusion that there was insufficient evidence to show intoxication was a proximate cause of plaintiff's injury. We affirm the Commission.

Facts and procedural history pertinent to consideration of defendant's appeal included the following: On the evening of 3 September 1993, plaintiff's wife received a telephone call from a Dover alderman informing her a city-owned truck was blocking traffic on Johnson Street. She relayed this message to plaintiff, who possessed the keys to the truck. Plaintiff agreed to move the truck and set out to Johnson Street on a bicycle. However, plaintiff first stopped at his place of business, an auto service center, and consumed an alcoholic beverage. He thereafter returned to his bicycle and resumed his errand. Unfortunately, plaintiff struck a mound of dirt approximately thirty seconds later, was thrown from the bicycle, and was severely injured.

Following a hearing on plaintiff's claim for benefits under the Workers' Compensation Act (the Act), the Deputy Commissioner ruled plaintiff had sustained an injury by accident arising out of and in the course of his employment, that defendant had failed to prove intoxication was a proximate cause of plaintiff's injury, and that plaintiff was entitled to benefits under the Act. In an Opinion and Award filed 21 September 1995, the Full Commission essentially affirmed the findings and conclusions of the Deputy Commissioner. Defendant filed notice of appeal to this Court 20 October 1995.

Plaintiff also appeals, assigning error to the Commission's failure "to make a finding as to attorney's fees." N.C.G.S. § 97-90 (1991 & 1996 Cum.Supp.) sets out the process through which counsel fees are approved by the Commission and also the procedure for disputing the Commission's decision on such matters. In the case sub judice, the Deputy Commissioner's Opinion and Award contained no findings regarding counsel fees. However, plaintiff registered no complaint regarding this omission in his appeal to the Commission, which likewise failed to address the issue in its Opinion and Award.

G.S. § 97-90 provides that in situations where there is no agreement between attorney and client about a compensation rate (as plaintiff's brief claims is the case here), the attorney or claimant may appeal a decision of the Commission regarding counsel fees to the superior court within five days of receipt of notice of the Commission's opinion. The Commission is then required to submit its findings and basis for the fee awarded to the superior court, which court then determines the appropriate fee to be allowed.

Neither plaintiff nor his attorney complied with the statutory procedure. Plaintiff claims he had no right to appeal the decision of the Commission to the superior court because the former's Opinion and Award omitted any reference to counsel fees. Plaintiff's argument is unpersuasive. Had he or his attorney brought the matter to the superior court in the manner set out in G.S. § 97-90, the Commission would thereby have been compelled to explain its failure to award counsel fees. Perhaps, as plaintiff claims, the Commission neglected to do so because of mere oversight. Whatever the explanation for the Commission's omission, however, neither plaintiff nor his attorney complied with G.S. § 97-90. Plaintiff's appeal of the Commission's decision (or lack thereof) as to counsel fees is therefore dismissed.

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In reviewing a decision of the Commission, our review is limited to two issues: (1) whether any competent evidence in the record supports the Commission's findings of fact, and (2) whether such findings of fact support the Commission's conclusions of law. Moore v. Davis Auto Service, 118 N.C.App. 624, 627, 456 S.E.2d 847, 850 (1995). Moreover, when there are no exceptions to the Commission's findings, they are binding on appeal. Mabe v. Granite Corp., 15 N.C.App. 253, 255, 189 S.E.2d 804, 806 (1972).

Defendant first contends the Commission erred in determining plaintiff sustained an injury arising out of and in the course of his employment as mayor of the Town of Dover. A claimant may receive compensation under the Act only for injury by accident "arising out of and in the course of" his or her employment. N.C.G.S. § 97-2(6) (1991 & 1996 Cum.Supp.). Whether an injury arises out of and in the course of a claimant's employment is a mixed question of fact and law, and our review is thus limited to whether the findings and conclusions are supported by the evidence. Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248, 251, 293 S.E.2d 196, 198 (1982).

The phrase "arising out of" refers to the requirement that there be some causal connection between the injury and claimant's employment. Clark v. Burton Lines, 272 N.C. 433, 437, 158 S.E.2d 569, 571 (1968). "In the course of" refers to the time and place constraints on the injury, id.; the injury must occur

during the period of employment at a place where an employee's duties are calculated to take him, and under circumstances in which the employee is engaged in an activity which he is authorized to undertake and which is calculated to further, directly or indirectly, the employer's business.

Powers v. Lady's Funeral Home, 306 N.C. 728, 730, 295 S.E.2d 473, 475 (1982).

[T]he two tests, although distinct, are interrelated and cannot be applied entirely independently. Rather, they are to be applied together to determine the issue of whether an accident is sufficiently work-related to come under the Act. Since the terms of the Act should be liberally construed in favor of compensation, deficiencies in one factor are sometimes allowed to be made up by strength in the other.

Hoyle, 306 N.C. at 252, 293 S.E.2d at 199.

We first address whether the Commission properly concluded plaintiff's injury "arose out of" his employment. The Commission made the following findings of fact, none of which have been excepted to by defendant and are therefore conclusive on appeal, see Mabe, 15 N.C.App. at 255, 189 S.E.2d at 806:

1. At the time of the 28 December 1994 hearing, plaintiff was 54 years old, with a date of birth of 2 February 1940. Plaintiff is self-employed and owns an auto service center. In addition to his business, plaintiff holds the elective office of mayor of defendant. In his position as mayor, plaintiff receives no wages.

2. On 3 September 1993 a city-owned truck was parked across traffic lanes on Johnson Street, a public road, to block traffic. The reason that the truck was used to block traffic was to prevent heavy construction equipment from driving on the road and damaging the pavement. After the workday was finished, no one from the town was instructed to move the truck; and it remained parked across traffic lanes.

3. Plaintiff had the keys to the truck, and members of the Board of Aldermen tried to locate plaintiff at his business which was next to his house. When they were unsuccessful in locating plaintiff, one of the aldermen telephoned plaintiff's house. Plaintiff's wife spoke to the alderman and told him that she did not know where plaintiff was. Later, she found plaintiff asleep on the couch in the den (she had not heard him when he came home from work). She told plaintiff of the problems with the truck, and plaintiff left home to move the truck from the street.

The Commission's findings reflect a "reasonable relationship" between plaintiff's trip to move the city-owned truck from its position blocking traffic and his employment as mayor of Dover, and fully support the Commission's conclusion of law that plaintiff sustained injury "arising out of" his employment. See Allred v. Allred-Gardner, Inc., 253 N.C. 554, 557, 117 S.E.2d 476, 479 (1960)(where "any reasonable relationship" with employment exists, court justified in upholding award as arising out of employment).

Notwithstanding, defendant contends plaintiff chose to perform his duties in an "illogical, grossly inefficient" manner, thereby breaking the causal connection between his journey and his employment. In particular, defendant points to evidence plaintiff traveled on a bumpy road at night on a bicycle unequipped with a light, and that he stopped to drink alcohol in the course of his trip to move the truck.

However, assuming defendant's characterization of plaintiff's conduct as "illogical" and "grossly inefficient" constitutes an assertion plaintiff was negligent, negligence of an employee in performing his duties does not bar the employee from compensation under the Act. Id. at 556, 117 S.E.2d at 478. As Professor Larson pointedly observes:

The right to compensation benefits depends on one simple test: Was there a work-connected injury? Negligence, and, for the most part, fault, are not in issue and cannot affect the result. Let the employer's conduct be flawless in its perfection, and let the employee's be abysmal in its clumsiness, rashness and ineptitude; if the accident arises out of and in the course of the employment, the employee receives an award. Reverse the positions, with a careless and stupid employer and a wholly innocent employee and the same award issues.

1 Arthur Larson & Lex K. Larson,...