Hunt v. TENDER LOVING CARE HOME CARE AGENCY, COA01-1571.

• Docket Nº: No. COA01-1571.
• Citation: 569 S.E.2d 675, 153 NC App. 266
• Case Date: October 01, 2002
• Court: Court of Appeal of North Carolina (US)

569 S.E.2d 675
153 NC App. 266

Ginger Dayle HUNT, Employee, Plaintiff,
v.
TENDER LOVING CARE HOME CARE AGENCY, INC., Employer,
Pharmacists Mutual Insurance Company, Carrier, Defendants

No. COA01-1571.

Court of Appeals of North Carolina.

October 1, 2002.

569 S.E.2d 677

Musselwhite, Musselwhite, Musselwhite & Branch, by James W. Musselwhite, Lumberton, for plaintiff-appellee

Young Moore and Henderson P.A., by Joe E. Austin, Jr. and Zachary C. Bolen, Raleigh, for defendants-appellants.

TYSON, Judge.

Defendants, Tender Loving Care Home Care Agency, Inc. ("employer") and Pharmacists Mutual Insurance Company ("carrier"), appeal from the opinion and award of the North Carolina Industrial Commission ("Commission"). The Commission reversed the decision of the Deputy Commissioner and awarded benefits to Ginger Hunt ("plaintiff") on the basis that the injury arose out of or in the course of employment. We reverse the opinion and award of the Commission.

I. Facts

Plaintiff was employed by employer as a certified nursing aide (CNA). Plaintiff's job included caring for Ms. Locklear, her sole patient, in Ms. Locklear's home and running errands for her. The plaintiff drove her personal vehicle to and from Ms. Locklear's residence and used it to run Ms. Locklear's errands. Plaintiff's work schedule was set from 7:30 a.m. through 3:30 p.m. on weekdays, and from 1:00 p.m. to 8:00 p.m. on Saturdays. Plaintiff had been employed in this position since March 1997. Ms. Locklear had been plaintiff's only patient during the entire period of her employment.

On Wednesday, 1 September 1999, plaintiff was injured in an accident while driving her personal vehicle to her home from Ms. Locklear's house. The distance between the two houses is approximately 13 miles.

At the time of the accident, employer reimbursed its CNAs for certain mileage expenses. Under employer's policy, CNAs who drove more than 30 miles on a weekday, either because they lived more than 15 miles from their patients or they were required to run patient errands, were reimbursed for excess mileage. All CNAs were reimbursed for their commuting and patient errand mileage on the weekends, regardless of the miles traveled. According to the employer, the policy concerning weekday travel was based on the fact that a CNA's average commute was approximately 15 miles one way.

Plaintiff's injury caused her to be out of work from 2 September 1999 through 28 February 2000. Plaintiff returned to work part-time for the defendant on 29 February 2000, and returned to work full-time on 4 April 2000. Plaintiff suffers a 10% permanent partial impairment of her left leg.

After employer filed a Form 61, Denial of Claim, plaintiff filed a Form 33 Request for Hearing. The hearing was scheduled for 21 September 2000. Both parties agreed that no actual testimony or presence at the hearing was necessary and submitted stipulations and exhibits. The Deputy Commissioner issued an opinion denying plaintiff workers' compensation benefits because the accident arose while plaintiff was coming to and from work. The Full Commission reversed the Deputy Commissioner's decision on 13 August 2001 on the grounds (1) that these facts fell within the "traveling salesmen's exception" to the coming and going rule, and (2) that employer's reimbursement for mileage on some days and not others was arbitrary.

II. Issue

Defendants argue that the Commission erred as a matter of law in concluding that the plaintiff sustained an injury by accident arising out of and in the course of her employment.

III. Standard of Review

Our review of a decision of the Commission 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 conclusion of law." Creel v. Town of Dover, 126 N.C.App. 547, 552, 486 S.E.2d 478, 480 (1997)(citing Moore v. Davis Auto Service, 118 N.C.App. 624, 627, 456 S.E.2d 847, 850 (1995)). The Commission's conclusions of law are reviewable. Grant v. Burlington Industries, Inc., 77

569 S.E.2d 678

N.C.App. 241, 247, 335 S.E.2d 327, 332 (1985) (citation omitted). "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." Creel at 552, 486 S.E.2d at 481 (citing Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248, 251, 293 S.E.2d 196, 198 (1982))

IV. "Arising Out of and in the Course of Employment"

Defendants contend that plaintiff's injury was not an accident that arose out of and in the course of plaintiff's employment with employer. Defendants argue that plaintiff worked a fixed work schedule and was commuting home from a fixed place of work. Defendants assert that plaintiff's injury occurred within the "going and coming" rule, and that plaintiff is not entitled to reimbursement and workers' compensation benefits for this particular trip.

An employee is entitled to workers' compensation benefits for injuries sustained in an accident arising out of and in the course of employment. See Ross v. Young Supply Co., 71 N.C.App. 532, 536, 322 S.E.2d 648, 652 (1984). "Arising out of" refers to the...