Hunt v. APAC Carolina, Inc., No. COA05-512 (NC 2/21/2006)

Decision Date21 February 2006
Docket NumberNo. COA05-512,COA05-512
CourtNorth Carolina Supreme Court
PartiesJAMES WILLIE HUNT, Employee, Plaintiff, v. APAC CAROLINA, INC./ASHLAND INC., Employer, ACE USA, Carrier, Defendants.

Appeal by defendants from opinion and award entered 3 January 2005 by the North Carolina Industrial Commission. Heard in the Court of Appeals 23 January 2006.

Huggins, Pounds & Davis, L.L.P., by Dallas M. Pounds, for plaintiff-appellee.

Womble Carlyle Sandridge & Rice, P.L.L.C., by Phillip J. Mohr, for defendants-appellants.


Defendants, APAC Carolina, Inc./Ashland Inc., and ACE USA, appeal an opinion and award concluding that plaintiff, James Willie Hunt, was injured during the course and scope of his employment and that he is temporarily and totally disabled. For the reasons discussed herein, we affirm the opinion and award of the Industrial Commission (Commission).

Defendant-employer, APAC, hired Hunt in September 2001 as a traffic flagger. Shortly thereafter, Hunt obtained his certification to operate heavy equipment and began operating a back hoe. Aside from his duties as a heavy equipment operator, Hunt also transported temporary workers APAC hired from the MegaForce employment agency to and from job sites. APAC compensated Hunt by adding one additional hour to his time card for each day he transported MegaForce employees. Initially, Hunt used his own vehicle to transport workers. However, in the spring of 2002, APAC provided him with a company truck to transport MegaForce employees. As part of the arrangement, APAC paid for the gas, oil, and other maintenance of the vehicle. Each employee, including Hunt, was required to pay $3.00 per day for each day they were provided transportation. APAC continued to compensate Hunt for one hour each day that he drove the truck. Hunt was not allowed to use the truck for personal reasons without prior approval from his employer, nor were his family members allowed to ride in the truck at any time. APAC tracked the truck's mileage each day and over weekends to ensure Hunt did not operate the truck for personal use.

On Friday, 4 October 2002, after leaving work, Hunt traveled eastbound on Highway 41 in Robeson County and took MegaForce employee Dennis Locklear home. Both Mr. Locklear and Hunt lived off of Highway 41. After dropping off Mr. Locklear, Hunt turned back onto Highway 41 and proceeded east towards his home. Shortly thereafter, he was involved in a motor vehicle accident. According to Hunt, his body was thrown forward and then back, striking the steering wheel. As a result of the accident, Hunt felt pain in his lower back and shortly thereafter experienced numbness radiating down his left leg. Conflicting evidence was presented as to whether Hunt's son was in the vehicle at the time of the accident. While Hunt awaited the arrival of the police, one of his employer's foremen passed the scene of the accident and stopped to offer assistance. Hunt used the foreman's phone to call APAC's safety director. He informed the safety director of the accident and requested authorization to obtain medical treatment. The safety director told Hunt to wait until Monday so that he could submit to a mandatory drug test at APAC's office. Over the weekend Hunt's pain progressively worsened. On Sunday, Hunt was called at home and told to report to a job site in Bladenboro. Hunt worked light duty on Monday and Tuesday flagging traffic. On Wednesday, 9 October 2002, Hunt received a call from his employer, telling him to report to the office in Fayetteville for a mandatory drug test. At that time, Hunt again requested authorization for medical treatment, but was told he needed to wait. When Hunt arrived at his employer's office, he was informed he had been terminated due to his poor driving record. Prior to Hunt's accident on 4 October 2002, APAC had implemented a continuing driver qualification policy in which any employee who was charged with eight points from the employer's point schedule in a twenty-four month period would be disqualified from driving a company vehicle. APAC terminated Hunt for violating the continuing driver qualification policy by receiving eight company driving points within twenty-four months and for having his son, an unauthorized person, in the company vehicle. Defendant asserted that Hunt accumulated these eight points for the following reasons: three points for the 4 October 2002 accident, three points for an accident occurring on 21 March 2002, and two points for a speeding violation on 23 April 2002. Conflicting evidence was presented as to the validity of two of the eight points.

The day Hunt was notified of his termination he again requested permission to seek medical treatment. Hunt testified he was told to speak with the human resources manager, who informed him that since he had been terminated she could not speak with him regarding a worker's compensation claim. Immediately thereafter, Hunt went to the emergency room at Southeastern Regional Medical Center. He was diagnosed with a muscle strain and discharged. He was not restricted from working.

On 4 November 2002, Hunt saw Dr. H.M. Livingston, Jr., a chiropractor. He complained of radiating lower back pain and numbness in his left leg. Dr. Livingston opined Hunt was unable to work at any type of employment. Hunt last saw Dr. Livingston for treatment on 13 January 2003. At that time, Dr. Livingston felt Hunt had not reached maximum chiropractic improvement based on his continued complaints of pain. Hunt next received treatment at Carolina Complete Rehabilitation Center where he attended physical therapy eleven times between 4 March and 10 April 2003. On 13 May 2003, Hunt underwent a functional capacity evaluation, from which his doctor concluded he was able to work at the light physical demand level for an eight-hour day. However, Hunt's position with defendant-employer was considered heavy duty and not within his physical work restraints. On 4 December 2003, over one year after the accident, Hunt was evaluated by Dr. Andrew Bush. Dr. Bush noted inconsistencies in the records and the physical examination and was concerned with the lack of objective findings and the fact no MRI had been performed. He recommended Hunt undergo an MRI and a second functional capacity exam before he would be able to give an opinion as to Hunt's medical condition.

Following Hunt's termination, he began receiving unemployment compensation benefits starting 14 October 2002. As a condition of receiving those benefits, he conducted two job searches per week, but was unable to secure any employment.

The Commission determined Hunt suffered a compensable injury, finding that his automobile accident arose out of and in the course of his employment. The Commission awarded Hunt on-going temporary total disability benefits at the weekly rate of $ 297.86, subject to defendant receiving a credit for unemployment benefits that Hunt received. It also ordered defendants to pay for all reasonably necessary medical and vocational rehabilitation expenses Hunt had incurred or would incur as a result of his compensable injury. Defendants appeal.

Standard of Review

Our review of an award by the Industrial Commission is limited to: (1) whether there was any competent evidence before the Commission to support its findings; and (2) whether such findings support its legal conclusions. Lewis v. Orkand Corp., 147 N.C. App. 742, 744, 556 S.E.2d 685, 687 (2001). Findings of fact from an opinion and award of the Commission, if supported, are deemed conclusive, even if there is evidence that would support findings to the contrary. Id. On appeal this Court does not weigh the evidence, as the Commission is the "sole judge of the weight and credibility of the evidence[.]" Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). Instead our "duty 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). We must view the evidence in the light most favorable to the plaintiff, who is entitled to the benefit of every reasonable inference that may be drawn therefrom. Id.

I. Arising Out of the Course and Scope of Employment

In their first argument, defendants contend the Commission erred in determining the accident arose out of the course and scope of employment because the automobile accident occurred after Hunt had completed his duties for his employer and while driving home. We disagree.

"'An employee is entitled to workers' compensation benefits for injuries sustained in an accident arising out of and in the course of [their] employment.'" Stanley v. Burns Int'l Sec. Servs., 161 N.C. App. 722, 724, 589 S.E.2d 176, 178 (2003) (citations omitted). "Arising out of" refers to the cause of the accident, such that there is a "causal connection between the accident and the employment[.]" Battle v. Electric Co., 15 N.C. App. 246, 250, 189 S.E.2d 788, 791 (1972). "In the course of"refers to "the time, place, and circumstances of the accident." Id. The accident will be deemed to have arisen "in the course of" the employment "if it occurs while the employee is engaged in a duty which he is authorized or directed to undertake or in an activity incidental thereto." Id. Whether an injury arises out of and in the course of an employee's job presents a mixed question of law and fact. Creel v. Town of Dover, 126 N.C. App. 547, 552, 486 S.E.2d 478, 481 (1997). As such, our review is confined to whether the findings and conclusions are supported by the evidence. Id.

Workers' compensation rules are subject to liberal construction. Munoz v. Caldwell Mem'l Hosp., ___ N.C. App. ___, ___, 614 S.E.2d 448, 452-453 (2005). Thus, "[w]here any reasonable relationship to employment exists, or employment is a contributory cause, the...

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