Lead Opinion
2. An employment relationship existed between plaintiff and defendant-employer at all relevant times herein.
3. Key Risk Management Services was the carrier on the risk at all times relevant herein.
4. Plaintiff sustained a compensable injury by accident on October 12, 1999.
5. Plaintiff has not returned to work for defendant-employer since his injury by accident on October 12, 1999.
6. Plaintiff's average weekly wage was $571.62, yielding a compensation rate of $381.10.
7. The parties stipulated to the plaintiff's medical records from Heritage Hospital, Accident and Injury Center, Boice-Willis Clinic, P.A., Nash Health Care Systems, Rocky Mount Neurosurgical Consultants, P.A., Nash Orthopaedic Associates, East Carolina Neurology, Pungo District Hospital, Seaboard Surgical Associates, P.A., and Pitt County Memorial Hospital, Inc.
8. The issues presented are:
a) Whether plaintiff sustained a compensable injury by accident arising out of the course of his employment with defendant-employer on October 12, 1999;
b) Whether plaintiff was commuting at the time of his injury on October 12, 1999; and
c) Whether plaintiff is entitled to any benefits under the North Carolina Workers' Compensation Act.
2. Plaintiff began working for defendant in spring 1999 as a mechanic. Defendant's business consists of supplying traveling mechanics to the job sites of various clients. Plaintiff had no regular work place. During the six months plaintiff worked for defendant, he had been assigned to four different job sites in Durham, Chapel Hill, Wilson and Raleigh. At the time of his accident, plaintiff had worked at the Mallinckrodt site in Raleigh for three months. The testimony at the Deputy Commissioner hearing established that the number of defendant's employees at the Mallinckrodt site was subject to change depending upon the needs of the client. In fact, at the time of the hearing the number of defendant's employees had decreased to three from the five or six employees working there at the time of plaintiff's accident. Plaintiff testified that "it was like a day-to-day thing. You never know where they're going to send you. Because, I mean that's what I was told when I got the job. You might move around. You may stay at a job. You never know."
3. Defendant paid its employees $10.00 per day for travel when the employee traveled to a work site that was located more than 50 miles away from defendant's home office in Rocky Mount. Since the sole basis for payment of the per diem was mileage, the correct classification for the payment is paid travel reimbursement.
4. On October 12, 1999, plaintiff was working for defendant at the Mallinckrodt plant in Raleigh. Since the Mallinckrodt plant is one of defendant's clients that is located more than 50 miles away from defendant's Rocky Mount office, plaintiff was paid a $10.00 a day travel reimbursement while he worked there. Plaintiff was also paid $10.00 a day while he was assigned to job sites in Durham and Chapel Hill, but was not paid the daily allowance while he was working in Wilson, since it is not more than 50 miles from Rocky Mount.
5. On October 12, 1999, plaintiff left the Mallinckrodt plant in Raleigh where he had been working that day to return home when suddenly and without warning another vehicle failed to yield at a stop sign and collided with plaintiff's vehicle.
6. Plaintiff struck his head during the accident and lost consciousness. Later the night of October 12, 1999, plaintiff began to have symptoms including loss of visual acuity, trouble walking in a straight line and severe pain in his back and neck. On October 13, 1999, plaintiff presented to Heritage Hospital where a CT brain scan was performed. The brain scan showed a subarachnoid cyst left of the quadrigemminal plate cistern of the medial temporal region.
7. Plaintiff was treated conservatively by Dr. McKinnon, a chiropractor, on October 18, 1999. Since chiropractic treatment was unable to reduce the pain in his back, and did not address his unsteadiness while walking, dizziness and head injury, on October 29, 1999, Dr. McKinnon referred plaintiff to Dr. Rosario Guarino.
8. Dr. Guarino, after initial examination, recommended completion of the chiropractic treatment. In a subsequent office visit, Dr. Guarino noted that plaintiff continued to have head shaking, arm shaking and pain in his forearms and shoulders. The physical exam revealed intermittent head tremor and some tremor of the outstretch hands. Dr. Guarino ordered an MRI scan of the cervical spine and referred plaintiff to Dr. Lucas J. Martinez.
9. Plaintiff presented to Dr. Lucas Martinez, a neurosurgeon, with complaints of neck pain radiating into both thumbs, left on the worse than the right. Dr. Martinez also noted plaintiff's abnormal shaking of the head, which was unrelated to his neck complaints. Dr. Martinez found that the complaints and injury for which he treated plaintiff were related to the October 12, 1999 automobile accident.
10. Dr. Martinez ordered a myelogram, which confirmed that plaintiff had a herniated disc at C6-C7. Dr. Martinez recommended an anterior cervical discectomy and fusion. After the myelogram, plaintiff suffered from chemical meningitis secondary to the myelogram dye.
11. Dr. Martinez performed an anterior cervical discectomy and fusion with left iliac bone graft at the C6-C7 level. During follow-up visits plaintiff continued to have pain and limited motion in the spine. Plaintiff also had complaints of bi-lateral numbness in the fourth and fifth fingers. On September 19, 2000, Dr. Martinez released plaintiff with a 10% permanent partial disability rating to the back and permanent work restrictions. Dr. Martinez had no further treatment besides the administration of pain medication to offer plaintiff, so he encouraged plaintiff to follow up with his family physician, Dr. Gregory Jones, for pain management.
12. At the time of the Deputy Commissioner hearing, Dr. Jones continued to treat plaintiff for severe pain, which Dr. Jones relates to the October 12, 1999 automobile accident. Dr. Jones also testified that he has had the opportunity to observe plaintiff not only in his office, but also in the community and through these observations, Dr. Jones believes that plaintiff is suffering from severe pain. Dr. Jones is also treating plaintiff for depression secondary to severe pain. Dr. Jones relates plaintiff's head injury to the October 12, 1999 accident.
13. Since plaintiff continued to have short-term memory loss and dizziness, he was referred to East Carolina Neurology by Dr. Jones. He was diagnosed with post-motor concussive syndrome with pre-syncopal symptoms and mild short-term memory impairment, neck pain post cervical diskectomy and back pain. It was documented that plaintiff also suffers from objective sensory deficits, including bilateral hand numbness and bilateral lower extremity dysesthetic sensation. Dr. Price at East Carolina Neurology referred plaintiff to a pain clinic and physical therapy.
14. The competent evidence in the record establishes that defendant's livelihood is built upon being able to provide skilled labor to its clients located across the state. Defendant's mechanics are required to travel to any job site to which they are assigned. These job sites are always subject to change. Plaintiff's travel was for the benefit of defendant. Moreover, defendant paid its employees $10.00 per day for travel when they worked at a site located more than 50 miles from defendant's home office in Rocky Mount and plaintiff was paid $10.00 per day for reimbursement for travel to the Mallinckrodt site.
15. The greater weight of the competent evidence in the record establishes that plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant on October 12, 1999 and that plaintiff continues to be unable to perform any work as a result of his injury by accident and requires ongoing medical treatment due to the October 12, 1999 accident.
2. Due to plaintiff's employment as a mechanic with no regular place of business who was assigned to defendant's customers wherever he was needed, he was required to travel in his own vehicle back and forth to the locations to which he was assigned. Travel was an inherent and necessary part of the employment. Such travel was for the benefit of his employer since defendant was in the business of supplying mechanics who traveled to its customers' job sites. Travel was required of plaintiff and was contemplated as a part of the work assigned to plaintiff as a mechanic who traveled to and from various job sites. Plaintiff was therefore acting within the course and scope of his employment at the time his injury was sustained and plaintiff's injury is compensable under the "traveling salesman's exception" to the coming and going rule. Rossv. Young Supply Co., supra.
3. The dissent relies upon the decision in a recent Court of Appeals case, Hunt v. Tender Loving Care Home Care Agency, ___ N.C. App. ___,
4. Another exception to the coming and going rule is that when the employer provides transportation or provides compensation to cover the cost of transportation, injuries occurring while going to or returning from work are compensable. Puett v. Bahnson Co.,
5. Based on the totality of the circumstances in this case, on October 12, 1999 plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant. N.C. Gen. Stat. §
6. As a result of plaintiff's compensable injury by accident, plaintiff is entitled to total disability compensation at the rate of $381.10 per week beginning October 12, 1999 and continuing until plaintiff returns to work or until further Order of the Commission. N.C. Gen. Stat. §
7. As a result of plaintiff's compensable injury by accident, plaintiff is entitled to have defendant pay for all of his medical expenses incurred or to be incurred, as a result of his compensable injury by accident, including all examinations, evaluations and treatments, for so long as such evaluations, examinations and treatments may reasonably be required to effect a cure, give relief and will tend to lessen the period of plaintiff's disability. N.C. Gen. Stat. §§
2. Defendant shall pay for all of plaintiff's medical expenses incurred or to be incurred, as a result of his compensable injury by accident of October 12, 1999, including all examinations, evaluations and treatments, for so long as such evaluations, examinations and treatments may reasonably be required to effect a cure, give relief and will tend to lessen the period of plaintiff's disability.
3. A reasonable attorney's fee of 25% of the compensation benefits due plaintiff under Paragraph 1 of this Award is approved for plaintiff's counsel. Defendant shall pay to plaintiff's counsel one fourth of the lump sum awarded to plaintiff. Thereafter, every fourth compensation check shall be deducted from the sum due plaintiff and paid directly to plaintiff's counsel.
4. Defendant shall pay the costs, including an expert witness fee of $335.00 to Dr. Martinez, to the extent this fee has not already been paid.
This the ___ day of May 2002.
S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER
CONCURRING WITH A SEPARATE OPINION:
S/_______________ CHRISTOPHER SCOTT COMMISSIONER
DISSENTING WITH A SEPARATE OPINION:
S/_______________ RENEE C. RIGGSBEE COMMISSIONER
Concurrence Opinion
In the case at bar, the plaintiff was a mechanic for a company that provides labor to various sites around North Carolina. The plaintiff had worked for the defendant for six months before the injury. During this period, he had been assigned to four different worksites. The plaintiff had worked in Durham, Chapel Hill, and Wilson before he was assigned to the Raleigh plant in which he was injured. The number of defendant's employees at the Raleigh plant fluctuated constantly and, taken with his previous movement between job sites, the plaintiff's assignment to this particular plant must be thought of as less than permanent.
The defendant's employees received a $10 daily travel stipend when they worked more than 50 miles from the defendant's home base in Rocky Mount. While assigned to the Raleigh plant the plaintiff did receive the stipend. Plaintiff testified that his assigned work location was "like a day-to-day thing. You never know where they are going to send you."
These facts are in sharp contrast to the facts of the case the dissent cites, Hunt v. Tender Loving Care Home Care Agency, ___ N.C. App. ___,
In the spectrum of "fixed work location" cases, the facts of the Hunt case, which reflect a nearly permanent work assignment, put it at an extreme end, while the case at bar is in the middle of the spectrum, and is, therefore, compensable. The Hunt court imbues with great importance the fact that the Hunt plaintiff worked at only one location for her entire work history with that defendant. This crucial distinction removes the case at bar from the Hunt analysis.
S/_______________ CHRISTOPHER SCOTT COMMISSIONER
Dissenting Opinion
For the reasons discussed in Hunt v. Tender Loving Care Home CareAgency, ___ N.C. App. ___,
To the contrary, the undisputed evidence is that plaintiff had fixed hours of employment (from 7:30 a.m. to 4:00 p.m.) at a fixed work site (the Mallinckrodt plant in Raleigh) at the time of his accident. The evidence does not show that plaintiff's job was similar in any respect to a traveling salesman. See Hunt v. Tender Loving Care Home Care Agency, ___ N.C. App. ___,
Plaintiff was assigned to work at the Mallinckrodt plant in Raleigh in July 1999 and he continued to work at that location, without exception, until the date of his accident on October 12, 1999. Although plaintiff testified that when he first went to work for defendant that they "might" move him around, he also testified that he was also told that he "may stay at a job." Plaintiff did not know. [Tr. p 19.] The evidence is that defendant had at least a seventeen-year working relationship with Mallinckrodt and that there was no discussion, or other reason to believe, that defendant would not continue to have employees assigned to the Mallinckrodt plant in Raleigh. No one told plaintiff that he would be transferred from the Mallinckrodt site. [Tr. pp. 19-20, 48-49.] The Mallinckrodt plant in Raleigh was plaintiff's regular place of employment, and had been his regular place of employment for more than three months at the time of the injury. There is no evidence to suggest that plaintiff would be moved from this location. Thus, the facts in this case are no different from those involving the employee's assignment in Hunt v. Tender Loving Care, supra.
The majority also appears to infer a "traveling" or incidental status to plaintiff's employment at the Mallinckrodt plant because the number of defendant's employees that worked at that plant fluctuated. [Finding of Fact 2.] The evidence, however, is that the fluctuation in the number of employees would not have affected plaintiff's employment at the Mallinckrodt plant. [Tr. p. 51.] During periods of plant shutdowns at the Mallinckrodt plant, additional employees would be assigned to the plant. Plaintiff, however, was a regular employee, not a situational, plant shutdown employee; the fact that other employees might be temporarily assigned to the Mallinckrodt plant is irrelevant to plaintiff's status.
There is no question that the "going and coming" rule applies to this case. Under this rule, travel to and from work generally does not arise out of or in the course of employment. Royster v. Culp,
Rather, the issue is whether the "traveling salesman" exception applies. In Hunt v. Tender Loving Care, the Court of Appeals recently stated:
"Recognizing that travel to and from work is inherent in nearly all jobs, Professor Larson notes that `for employees having fixed hours and place of work, [an accident occurring while] going to and from work is covered only on the employer's premises.' 1 Arthur Larson Lex K. Larson, Larson's Workers' Compensation Law, § 13.01 (2001).
The Court of Appeals held that the nurse's aide who traveled to one patient's house and had fixed hours of employment at this location was not in the course and scope of her employment when injured while traveling to her home from the patient's residence. See Hunt v. Tender Loving Care,supra.
If plaintiff's job routinely required him to work at different locations on different days, or to travel to different locations on the same day, this travel may be compensable because the employee had no definite time and place of employment. See Hunt v. Tender Loving Care,supra; Creel v. Town of Dover,
The majority's findings of facts should be set aside and this case remanded to the Commission under the rule that "facts found under misapprehension of the law will be set aside on the theory that the evidence should be considered in its true legal light." See Helms v.Rea,
Plaintiff testified that he guessed that the per diem was based on mileage from Rocky Mount [Tr. p. 4.], but he acknowledged that he was not aware of how the per diem was calculated [Tr. p. 22.] Plaintiff also testified that he was not paid for his mileage to and from the work site; rather, he understood that, if the job were more than a certain distance from Rocky Mount, the employee would be paid a per diem. [Tr. p. 22.] Plaintiff received the per diem when he worked in Durham, Chapel Hill, and Raleigh, but not when he worked in Wilson. [Tr. p. 32.]
Angela Davis, defendant's human resource director, testified that a per diem was not provided to every employee. Payment of a per diem required two things: the project manager included a per diem in the job quote, and the job was located more than fifty miles from Rocky Mount, the location of defendant's home office. [Tr. p. 38.] The per diem was paid to the employee no matter where the employee lived or worked. Every employee working at the job site received the per diem without regard to where the employee was traveling from or how far he had to drive. [Tr. p. 39.] No mileage statements were turned in to justify the per diem. It is significant that whether a per diem was paid depended on INCO's contract with its customer, and if the per diem was not quoted in the contract, the employees received no per diem irrespective of travel. [Tr. p. 45.] As plaintiff's supervisor, Mr. Lee, testified, all INCO employees at the Mallinckrodt plant were paid a $10.00 per diem. [Tr. p. 50.]
Thus, the undisputed evidence is that the per diem was paid pursuant to a contract between Mallinckrodt and INCO and was not determined by travel actually incurred by the employee. Plaintiff was not paid for his travel to and from work, and the per diem was not an incident of plaintiff's employment contract with defendant. If an employee worked where defendant negotiated for the per diem, the employee would receive the benefit; if not, the employee would have no right to a per diem and otherwise had no right to be reimbursed for his travel expenses.
The contractual duty exception requires that the provision for transportation be an incident to the contract for employment between the employee and his employer. Lassiter v. Telephone Co.,
For these reasons, I respectfully dissent.
S/_______________ RENEE C. RIGGSBEE COMMISSIONER