Dunn v. Marconi Communications, Inc., COA03-129.

• Citation: 589 S.E.2d 150,161 NC App. 606
• Decision Date: 16 December 2003
• Docket Number: No. COA03-129.,COA03-129.
• Parties: Joseph B. DUNN, Employee, Plaintiff, v. MARCONI COMMUNICATIONS, INC., Employer, ACE USA, Carrier, Defendants.
• Court: North Carolina Court of Appeals

589 S.E.2d 150

161 NC App. 606

Joseph B. DUNN, Employee, Plaintiff, v. MARCONI COMMUNICATIONS, INC., Employer, ACE USA, Carrier, Defendants.

No. COA03-129.

Court of Appeals of North Carolina.

December 16, 2003.

The Jernigan Law Firm, by Leonard T. Jernigan, Jr., N. Victor Farah and Lauren R. Trustman, Raleigh, for plaintiff-appellant.

Teague, Campbell, Dennis & Gorham, L.L.P., by Dayle A. Flammia, for defendant-appellees.

EAGLES, Chief Judge.

Plaintiff Joseph B. Dunn appeals from an opinion and award of the full Industrial Commission denying workers' compensation benefits. Plaintiff asserts two arguments on appeal: that the Industrial Commission erred (1) by failing to apply the appropriate law to determine the compensability of plaintiff's claim and (2) by deferring to the deputy commissioner's judgment regarding the credibility of witnesses. After careful review of the transcript, exhibits, record and briefs, we affirm.

The evidence presented to the Commission tended to show that plaintiff was injured in an automobile accident on 14 April 2000. At the time of the accident, plaintiff was returning from his home in Maysville, North Carolina, to a job site located in Richmond, Virginia.

Plaintiff began working for defendant Marconi Communications, Inc. ("Marconi") in 1997. In 2000, plaintiff worked as a "lead man" for Marconi. As a lead man, plaintiff's job responsibilities consisted of supervising the installation of telephone equipment by teams of workers and maintaining the stock of materials necessary for the project. Plaintiff traveled frequently as part of his job. He testified that he had previously completed projects for Marconi in Oklahoma City, Oklahoma; Roswell, New Mexico; Dallas, Texas; Chattanooga, Tennessee; and Detroit, Michigan.

Marconi provided plaintiff a company van to drive and a company credit card in order to pay for gasoline for the van. Plaintiff was paid for any time he spent traveling between job sites. During weekends or between jobs, plaintiff would drive the company van to his home and then drive the van to the next job site.

Plaintiff used a pager that was turned on at all times. Plaintiff's supervisors contacted plaintiff using this pager in order to tell plaintiff the location of his next job site. Plaintiff testified that he called the company headquarters every week to inform the payroll clerk where to deliver his paycheck. The payroll clerk would then send plaintiff's paycheck to his location, using an express mail service if necessary.

Plaintiff was assigned to the project site in Richmond, Virginia, in late March or early April 2000. Marconi was hired to install telephone cable and equipment in the Bell Atlantic building. By 14 April 2000, the Marconi team was running behind schedule on the project. The team had begun the Richmond project later than expected and the project was further delayed by sabotage. Plaintiff testified that his immediate supervisor, Steve Wade, pressured the installation team and constantly asked plaintiff how much longer it would take to finish the project.

The Marconi crew working at the Bell Atlantic site was using a hydraulic crimper, a tool which is used to tighten cables during installation. When plaintiff worked the 8 p.m. shift on 13 April, he observed that the crew only had one hydraulic crimper in use. Plaintiff had an additional manual crimper, owned by Marconi, at his home in Maysville. Manual crimpers are used for the installation of smaller cables, while hydraulic crimpers are needed for larger cables.

Plaintiff decided to retrieve the crimper from Maysville in order to complete the project more quickly. At 8 a.m. on 14 April, a few hours after he got off work, plaintiff began the drive to Maysville. Plaintiff did not tell any of his co-workers that he was traveling home or that he was going to retrieve the additional crimper. Plaintiff's fiancee Sherry accompanied him on the trip to Maysville. Plaintiff estimated that it would take him four hours to drive from Richmond to Maysville.

Plaintiff and his fiancee arrived at plaintiff's home in Maysville around noon. Plaintiff retrieved the crimper from his house. He checked his mailbox but his paycheck had not yet arrived.

Plaintiff began to drive back to Richmond with his fiancee. He was scheduled to be at work at the Richmond project site at 8:00 p.m. that evening. Plaintiff was injured in an accident during the trip back to Richmond at approximately 5:15 p.m. The accident occurred about forty miles away from the job site. Plaintiff fell asleep while driving on Interstate 95 and ran off the highway. When the van left the highway, it flipped several times and plaintiff was thrown from the van. Plaintiff had not slept or taken a nap since before he reported to work the previous evening at 8:00 p.m., meaning that plaintiff had been awake for at least 21 hours at the time of the accident. Plaintiff sustained a concussion, a scalp laceration, several broken ribs, a collapsed lung, a bruised heart, and a compound fracture of his ankle as a result of the accident.

Defendants denied compensability of plaintiff's claim, based upon defendants' decision that plaintiff's accident did not arise out of the course and scope of his employment. Plaintiff's claim was then presented to the deputy commissioner on 26 January 2001. Defendants introduced testimony that tended to show that plaintiff did not have a legitimate business reason for driving to his home in Maysville. Marconi's human resources manager testified that, at the time of the accident, plaintiff had requested his paycheck be directly deposited in his bank account, so there was no reason for plaintiff to expect his paycheck to be delivered to his home. Plaintiff testified that he had signed up for the direct deposit program but then cancelled his participation in it. Plaintiff was unable to remember when he cancelled direct deposit of his paycheck.

In addition, plaintiff stated on cross-examination that he knew another employee at the Richmond work site had an extra crimper which was the same type of tool that he retrieved from his home in Maysville. However, plaintiff admitted that he did not ask the other employee if he could use the "extra" crimper before he decided to drive to Maysville. Plaintiff also testified that he did not investigate the Richmond area to determine whether there was a store in Richmond where he could buy an extra crimper. Plaintiff's supervisor testified that all employees were instructed on the procedure for getting tools locally if needed for the job site. Employees were instructed to buy tools at stores near the job site or to have tools shipped in by an express service from Marconi's headquarters. In addition, the supervisor stated that company policy forbids employees from keeping tools at home, as plaintiff claimed to have done. The supervisor further testified that having an extra crimper on the Richmond job site would not have hastened the completion of the project. There were not enough workers on site to operate another hydraulic crimper, and the manual crimper only fit small cables.

The deputy commissioner and full Commission both denied plaintiff's claim for workers' compensation benefits. The Commission denied plaintiff's claim because it found that plaintiff's stated reasons for traveling to Maysville were not credible. Plaintiff appeals.

It is well-settled that "appellate courts reviewing Commission decisions are limited to reviewing 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). However, the Commission's decision regarding whether "an accident arose out of and in the course of employment is a mixed question of law and fact; thus, this Court may review the record to determine if the findings and conclusions are supported by sufficient evidence." Bowser v. N.C. Dep't. of Corr., 147 N.C.App. 308, 311, 555 S.E.2d 618, 621 (2001)(quoting 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)), disc. rev. denied, 355 N.C. 283, 560 S.E.2d 796 (2002).

G.S. § 97-2(6) defines "injury" under the Workers' Compensation Act to refer to "injury by accident arising out of and in the course of the employment...." The "coming and going rule," which is the "general rule in this and other jurisdictions," states "that an injury by accident occurring en route from the employee's residence to his workplace or during the journey home is not one that arises out of or in the course of employment." Powers v. Lady's Funeral Home, 306 N.C. 728, 730-31, 295 S.E.2d 473, 475 (1982)(citing Humphrey v. Laundry, 251 N.C. 47, 110 S.E.2d 467 (1959)). However, the general rule barring compensability of injuries sustained while traveling to or from work is subject to several exceptions, including inter alia, the "traveling salesman" exception, the "contractual duty" exception, the "special errand" exception, and the "dual purpose" exception. See Powers, 306 N.C. 728,

295 S.E.2d 473 (1982); Hunt v. Tender Loving Care Home Care Agency, Inc., 153 N.C.App. 266, 569 S.E.2d 675,

disc. rev. denied, 356 N.C. 436, 572 S.E.2d 784 (2002); Creel v. Town of Dover, 126 N.C.App. 547, 486 S.E.2d 478 (1997).

Plaintiff argues that the full Commission erred by omitting several factual findings that, if found, would have provided sufficient evidence to allow plaintiff to recover under various exceptions to the "coming and going" rule. Plaintiff contends that the Commission's failure to find these facts indicates that the Commission misapprehended the law and failed to apply the proper standard when it denied workers' compensation benefits. We disagree.

As a preliminary matter, we note that this Court has held that when the Commission determines "the credibility of the...