{ "id": 11712005, "name": "JAMES RANDALL CREEL, Employee, Plaintiff-Appellant v. TOWN OF DOVER, Self-Insured Employer (administered by GAB Business Services, Inc.), Defendant-Appellant", "name_abbreviation": "Creel v. Town of Dover", "decision_date": "1997-07-01", "docket_number": "No. COA96-47", "first_page": "547", "last_page": "560", "citations": [ { "type": "official", "cite": "126 N.C. App. 547" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "93 ALR3d 659", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "47 ALR3d 566", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "472 S.E.2d 18", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "343 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798785, 798887, 798824, 798831, 798934 ], "year": 1996, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0513-02", "/nc/343/0513-05", "/nc/343/0513-04", "/nc/343/0513-01", "/nc/343/0513-03" ] }, { "cite": "468 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "286", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 124", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915971 ], "year": 1996, "pin_cites": [ { "page": "129", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0124-01" ] }, { "cite": "374 S.E.2d 477", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "479" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527216 ], "year": 1988, "pin_cites": [ { "page": "487-88" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0483-01" ] }, { "cite": "327 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719235, 4724236, 4726804, 4722549, 4725112 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0327-05", "/nc/313/0327-04", "/nc/313/0327-03", "/nc/313/0327-01", "/nc/313/0327-02" ] }, { "cite": "322 S.E.2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "641" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 540", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525870 ], "year": 1984, "pin_cites": [ { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0540-01" ] }, { "cite": "259 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "788", "parenthetical": "plaintiff's work required her to travel to various places about the community" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 748", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554559 ], "year": 1979, "pin_cites": [ { "page": "750", "parenthetical": "plaintiff's work required her to travel to various places about the community" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0748-01" ] }, { "cite": "352 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "240" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168083 ], "year": 1987, "pin_cites": [ { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0221-01" ] }, { "cite": "162 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "54" } ], "opinion_index": 0 }, { "cite": "1 N.C. App. 448", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553835, 8553878 ], "year": 1968, "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/nc-app/1/0448-01", "/nc-app/1/0448-02" ] }, { "cite": "476 S.E.2d 105", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867662 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0624-01" ] }, { "cite": "468 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798885, 798833, 798771, 798936, 798878 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0123-03", "/nc/343/0123-01", "/nc/343/0123-05", "/nc/343/0123-04", "/nc/343/0123-02" ] }, { "cite": "465 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "303" }, { "page": "304" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 129", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915796 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "131" }, { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0129-01" ] }, { "cite": "232 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "453", "parenthetical": "claimant intoxicated at time of automobile collision, but intoxication did not occasion the accident" } ], "opinion_index": 0 }, { "cite": "292 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567907 ], "year": 1977, "pin_cites": [ { "page": "218", "parenthetical": "claimant intoxicated at time of automobile collision, but intoxication did not occasion the accident" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0210-01" ] }, { "cite": "117 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1960, "pin_cites": [ { "page": "479", "parenthetical": "where \"any reasonable relationship\" with employment exists, court justified in upholding award as arising out of employment" }, { "page": "556" }, { "page": "478" }, { "page": "478" } ], "opinion_index": 0 }, { "cite": "253 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626303 ], "weight": 2, "year": 1960, "pin_cites": [ { "page": "557", "parenthetical": "where \"any reasonable relationship\" with employment exists, court justified in upholding award as arising out of employment" }, { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0554-01" ] }, { "cite": "295 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "475" } ], "opinion_index": 0 }, { "cite": "306 N.C. 728", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573682 ], "year": 1982, "pin_cites": [ { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0728-01" ] }, { "cite": "158 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1968, "pin_cites": [ { "page": "571" }, { "page": "572" }, { "page": "571", "parenthetical": "even if employee deviated from employer's business the previous evening, he had returned to duties of employment at time of his death" } ], "opinion_index": 0 }, { "cite": "272 N.C. 433", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573243 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "437" }, { "page": "438" }, { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0433-01" ] }, { "cite": "293 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "198" }, { "page": "199" } ], "opinion_index": 0 }, { "cite": "306 N.C. 248", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568137 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "251" }, { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0248-01" ] }, { "cite": "189 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "806" } ], "opinion_index": 0 }, { "cite": "15 N.C. App. 253", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549521 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "255" }, { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nc-app/15/0253-01" ] }, { "cite": "456 S.E.2d 847", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "850" }, { "page": "850" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 624", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920169 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "627" }, { "page": "627" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0624-01" ] } ], "analysis": { "cardinality": 1142, "char_count": 31877, "ocr_confidence": 0.757, "pagerank": { "raw": 6.141541878772673e-07, "percentile": 0.9561704176575545 }, "sha256": "17be63ee6edfa05fd819f9cd7ee7e977ef98910b8fb936a4b7415d7b6b8fc61a", "simhash": "1:4cb3c2c62e7be23c", "word_count": 5175 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and McGEE concur." ], "parties": [ "JAMES RANDALL CREEL, Employee, Plaintiff-Appellant v. TOWN OF DOVER, Self-Insured Employer (administered by GAB Business Services, Inc.), Defendant-Appellant" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant 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\u2019s conclusion that there was insufficient evidence to show intoxication was a proximate cause of plaintiffs injury. We affirm the Commission.\nFacts and procedural history pertinent to consideration of defendant\u2019s appeal included the following: On the evening of 3 September 1993, plaintiff\u2019s 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.\nFollowing a hearing on plaintiff\u2019s claim for benefits under the Workers\u2019 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\u2019s 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.\nPlaintiff also appeals, assigning error to the Commission\u2019s failure \u201cto make a finding as to attorney\u2019s fees.\u201d N.C.G.S. \u00a7 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\u2019s decision on such matters. In the case sub judice, the Deputy Commissioner\u2019s 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.\nG.S. \u00a7 97-90 provides that in situations where there is no agreement between attorney and client about a compensation rate (as plaintiff\u2019s 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\u2019s 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.\nNeither 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\u2019s Opinion and Award omitted any reference to counsel fees. Plaintiff\u2019s argument is unpersuasive. Had he or his attorney brought the matter to the superior court in the manner set out in G.S. \u00a7 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\u2019s omission, however, neither plaintiff nor his attorney complied with G.S. \u00a7 97-90. Plaintiff\u2019s appeal of the Commission\u2019s decision (or lack thereof) as to counsel fees is therefore dismissed.\nIn reviewing a decision of the Commission, our review is limited to two issues: (1) whether any competent evidence in the record supports the Commission\u2019s findings of fact, and (2) whether such findings of fact support the Commission\u2019s 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\u2019s findings, they are binding on appeal. Mabe v. Granite Corp., 15 N.C. App. 253, 255, 189 S.E.2d 804, 806 (1972).\nDefendant 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 \u201carising out of and in the course of\u2019 his or her employment. N.C.G.S. \u00a7 97-2(6) (1991 & 1996 Cum. Supp.). Whether an injury arises out of and in the course of a claimant\u2019s 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).\nThe phrase \u201carising out of\u201d refers to the requirement that there be some causal connection between the injury and claimant\u2019s employment. Clark v. Burton Lines, 272 N.C. 433, 437, 158 S.E.2d 569, 571 (1968). \u201cIn the course of\u2019 refers to the time and place constraints on the injury, id.; the injury must occur\nduring the period of employment at a place where an employee\u2019s 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\u2019s business.\nPowers v. Lady\u2019s Funeral Home, 306 N.C. 728, 730, 295 S.E.2d 473, 475 (1982).\n[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.\nHoyle, 306 N.C. at 252, 293 S.E.2d at 199.\nWe first address whether the Commission properly concluded plaintiff\u2019s injury \u201carose out of\u2019 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:\n1. 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.\n2. 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.\n3. 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\u2019s house. Plaintiff\u2019s 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.\nThe Commission\u2019s findings reflect a \u201creasonable relationship\u201d between plaintiff\u2019s trip to move the city-owned truck from its position blocking traffic and his employment as mayor of Dover, and fully support the Commission\u2019s conclusion of law that plaintiff sustained injury \u201carising out of\u201d his employment. See Allred v. Allred-Gardner, Inc., 253 N.C. 554, 557, 117 S.E.2d 476, 479 (1960) (where \u201cany reasonable relationship\u201d with employment exists, court justified in upholding award as arising out of employment).\nNotwithstanding, defendant contends plaintiff chose to perform his duties in an \u201cillogical, grossly inefficient\u201d 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.\nHowever, assuming defendant\u2019s characterization of plaintiff\u2019s conduct as \u201cillogical\u201d and \u201cgrossly inefficient\u201d 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:\nThe 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\u2019s conduct be flawless in its perfection, and let the employee\u2019s 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.\n1 Arthur Larson & Lex K. Larson, Larson\u2019s Workmen\u2019s Compensation Law \u00a7 2.10, at 1-5 (1996).\nThe sole circumstances in which fault of an employee operates to bar workers\u2019 compensation benefits are (1) when the employee\u2019s injury was proximately caused by intoxication or being under the influence of a controlled substance, or (2) when the injury was proximately caused by the employee\u2019s willful intention to injure or kill himself (or herself) or another. N.C.G.S. \u00a7 97-12 (1991); Allred, 253 N.C. at 556, 117 S.E.2d at 478. Further, the Act does not prohibit benefits based on an employee\u2019s intoxication at the time of injury; intoxication must proximately cause the injury in order to bar the employee\u2019s claim. Inscoe v. Industries, Inc., 292 N.C. 210, 218, 232 S.E.2d 449, 453 (1977) (claimant intoxicated at time of automobile collision, but intoxication did not occasion the accident). Defendant\u2019s arguments asserting plaintiff is barred from benefits because he was negligent in the manner in which he traveled to the truck and because he drank alcohol prior to his injury are thus unavailing.\nDefendant next maintains the Commission erred in its conclusion of law that plaintiff sustained an injury \u201cin the course of\u2019 his employment. We disagree.\nThe pertinent findings of the Commission, unexcepted to by defendant, are as follows:\n4. Plaintiff\u2019s wife could not drive him to the truck because she was dressed to go to bed. Plaintiff decided to ride his bicycle to the truck because if he drove a car to the truck, he would be unable to drive both vehicles. Before riding to the truck, plaintiff stopped at his business and consumed a beverage containing two or three ounces of alcohol.\n5. At the time plaintiff left for the truck, it was no longer daylight. Plaintiff rode to the truck by taking a route along Carmichael Street. There had been some construction along the side of the street, and the terrain was rough. A few moments after plaintiff had left his business, his bike struck a mound of dirt left by the construction crew. Plaintiff\u2019s bicycle stopped suddenly, and plaintiff was thrown over the handlebars. . . .\nIn challenging the Commission\u2019s conclusion plaintiff was injured in the course of his employment, defendant relies in the main upon what has been denominated the \u201ccoming and going\u201d rule. As a general practice, injuries occurring while an employee is going to or coming from work are not compensable, Kirk v. State of N.C. Dept. of Correction, 121 N.C. App. 129, 131, 465 S.E.2d 301, 303 (1995), disc. review allowed, 343 N.C. 123, 468 S.E.2d 783, review improv. granted, 344 N.C. 624, 476 S.E.2d 105 (1996), the rationale being that the risk of injury while traveling to and from work is one common to the public at large, Harless v. Flynn, 1 N.C. App. 448, 458, 162 S.E.2d 47, 54 (1968). However, if an employee is injured while performing a special duty or errand for the employer, the injury is compensable. McBride v. Peony Corp., 84 N.C. App. 221, 227, 352 S.E.2d 236, 240 (1987). Professor Larson has summarized the \u201cspecial errand\u201d rule as follows:\nWhen an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered [due to] the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.\n1 Larson \u00a7 16.11, at 4-204.\nDefendant argues vigorously that plaintiff had \u201cno identifiable time and space limits on his employment,\u201d and thus cannot take advantage of the \u201cspecial errand\u201d exception to the \u201ccoming and going\u201d rule. Defendant cites testimony by plaintiff himself that the position of mayor did not constitute a \u201cnine-to-five job,\u201d but rather \u201cjust about a twenty-four-hour-a-day job.\u201d Plaintiff also indicated that most of his duties were administered from his auto shop rather than Town Hall. In addition, plaintiff stated he frequently was called away from his home at unusual hours to attend to town business. On such occasions, he would travel to the location of the particular problem requiring his attention.\nDefendant\u2019s objections miss the mark. If plaintiff had no fixed time and place of employment, his journey to move the truck would nonetheless fall within the course of his employment in that plaintiff would thereby be encompassed in that category of workers whose jobs expose them to the risk of travel. See Warren v. City of Wilmington, 43 N.C. App. 748, 750, 259 S.E.2d 786, 788 (1979) (plaintiff\u2019s work required her to travel to various places about the community).\nEmployees whose work entails travel away from the employer\u2019s premises are held in the majority of jurisdiction[s] to be within the course of their employment continuously during the trip, except when a distinct departure] on a personal errand is shown.\n1A Larson \u00a7 25.00, at 5-275; Clark, 272 N.C. at 438, 158 S.E.2d at 572; Kirk, 121 N.C. App. at 132, 465 S.E.2d at 304. Moreover, employees with no definite time and place of employment, (Professor Larson calls them \u201coutside\u201d employees, see 1 Larson \u00a7 16.02), are within the course of their employment when making a journey to perform a service on behalf of their employer. See 1 Larson \u00a7\u00a7 16.00-16.01.\nTherefore, the evidence to which defendant has pointed, e.g., that plaintiff had no set hours of employment as mayor and was frequently called from his home to attend to town business, bolsters rather than detracts from the Commission\u2019s conclusion that plaintiff\u2019s accident occurred in the course of his employment.\nDefendant counters that plaintiff was injured while making a personal side-trip to his shop to drink alcohol and that no obligation of his employment placed him in the location where he was injured. We agree that\n[a]n identifiable deviation from a business trip for personal reasons takes the employee out of the course of his employment until he returns to the route of the business trip, unless the deviation is so small as to be regarded as insubstantial.\n1 Larson \u00a7 19.00, at 4-352. However, an injury occurring after \u201cthe personal deviation has been completed and the direct business route has been resumed\u201d is compensable. Id. at \u00a7 19.32; see also Clark, 272 N.C. at 436, 158 S.E.2d at 571 (even if employee deviated from employer\u2019s business the previous evening, he had returned to duties of employment at time of his death).\nIn the case sub judice, the evidence indicated two approximately equidistant routes were available to plaintiff in order to reach the city truck from his house \u2014 U.S. Highway 70 or the less frequently traveled Carmichael Street. Plaintiff explained he chose the latter route because he thought it would be safer. Plaintiff lived on Kornegay Street, and his auto shop was located nearby on the corner of Kornegay and Carmichael. Plaintiff testified he left home and rode to his shop where he had a drink. After the drink, he returned to his bike and began riding. He testified, \u201cI come off of my property onto Carmichael. That\u2019s where the accident happened.\u201d\nDefendant objects that there was no competent evidence to support the Commission\u2019s finding that, \u201cPlaintiff rode to the truck by taking a route along Carmichael Street.\u201d Defendant insists the \u201cuncon-troverted evidence establishes that Plaintiff never made it onto Carmichael Street, but was thrown onto the roadside before ever making it onto the roadway.\u201d Therefore, defendant continues, plaintiff\u2019s \u201cdeviation had not ended at the time he was thrown from his bicycle in that he had not yet resumed travel upon the roadway at a point where his business trip should have commenced.\u201d Defendant\u2019s assertion is unfounded.\nAs related above, defendant testified the accident occurred after he had driven \u201coff of\u201d his property and onto Carmichael Street. Further, a photograph of the location where plaintiff fell was introduced into evidence. Plaintiffs daughter, who first discovered plaintiff after his fall, testified regarding the photo: \u201cIt\u2019s a picture of Carmichael Road where he had fallen.\u201d In short, evidence in the record supports the Commission\u2019s finding that plaintiff was injured while riding to the truck on Carmichael Street at a point when his \u201cpersonal deviation ha[d] been completed and the direct business route ha[d] been resumed,\u201d 1 Larson \u00a7 19.32.\nFinally, defendant interposes objections to the Commission\u2019s findings and conclusion regarding the role of intoxication in plaintiff\u2019s case. Prior to addressing defendant\u2019s final contentions, we first emphasize that we express no opinion as to plaintiff\u2019s decision to consume an alcoholic beverage while engaged in a task of his office as Mayor of the Town of Dover. While such conduct may be of concern to the local electorate, our role is limited solely to a consideration of whether the Commission\u2019s legal conclusions are sustained by its findings of fact. Moore, 118 N.C. App. at 627, 456 S.E.2d at 850.\nThe Commission\u2019s findings included the following:\n4. . . . Before riding to the truck, plaintiff stopped at his business and consumed a beverage containing two or three ounces of alcohol.\n7. There is insufficient evidence of record from which the undersigned can infer from its greater weight that intoxication was a significant contributing factor to the incident on 3 September 1993. In fact, the evidence tends to rebut intoxication at the time of the accident since there was insufficient time from the consumption of the alcohol and the time of the accident for any appreciable amount of alcohol to enter plaintiff\u2019s bloodstream and travel to plaintiff\u2019s brain. . . .\nBased upon its findings, the Commission concluded:\n2. Defendant has failed to prove that intoxication was a proximate cause of plaintiff\u2019s injury by accident.\nWe reiterate that the relevant question in determining whether intoxication operates to bar benefits to a claimant under the Act is not whether the claimant was intoxicated at the time of the accident, but whether the claimant\u2019s intoxication \u201cwas more probably than not a cause in fact of the accident.\u201d Anderson v. Century Data Systems, 71 N.C. App. 540, 545, 322 S.E.2d 638, 641 (1984), disc. review denied, 313 N.C. 327, 327 S.E.2d 887 (1985). On this affirmative defense, the burden of proof is upon the employer and not the employee. Id. Finally, it is the province of the Commission to weigh any conflicting evidence regarding a claimant\u2019s intoxication and the contribution thereof to the accident at issue. Gaddy v. Anson Wood Products, 92 N.C. App. 483, 487-88, 374 S.E.2d 477, 479 (1988).\nDefendant initially contends no competent evidence supports the Commission\u2019s finding that plaintiff consumed a beverage containing \u201ctwo or three ounces of alcohol.\u201d An examination of the record reveals the following: plaintiff testified he consumed a beverage containing Seagram\u2019s 7 and Pepsi and that he drank the beverage from a 16-ounce cup which was less than half full. He also indicated alcohol made up \u201cprobably not even half\u201d the mixed drink and that the alcohol content was \u201cthree to four ounces probably.\u201d On cross-examination, he stated, \u201c[The alcohol content] was probably around four ounces. It could have been more \u2014 I mean, a little less.\u201d\nWhile the record admittedly lacks direct evidence the alcohol consumed by plaintiff comprised two ounces, the evidence indisputably supports that portion of the Commission\u2019s finding stating the drink contained three ounces of alcohol and the indication that the exact amount was not precisely determined. In any event, we do not believe a one-ounce discrepancy may reasonably be said to have had an effect on the Commission\u2019s ultimate resolution of the case \u2014 particularly in view of its further finding, supported by evidence in the record, that at the time of the accident no appreciable amount of alcohol could yet have entered plaintiff\u2019s bloodstream and affected his'brain.\nDefendant also insists the Commission \u201cignored\u201d evidence plaintiff had a blood alcohol level reading of .117 two and one-half hours following his fall. However, neither of the two medical experts whose depositions were presented by defendant expressed the opinion, based upon plaintiff\u2019s blood alcohol reading, that plaintiff was intoxicated at the time of his accident nor that intoxication proximately caused the accident. The experts simply expressed the opinion that, assuming plaintiff was intoxicated at that time, such intoxication could have been a contributing factor in his fall.\nMoreover, the Commission had before it evidence rebutting intoxication. Plaintiff himself testified he had not yet felt the effects of the alcohol when his bicycle went out of control. Further, plaintiffs emergency room physician stated he made no notes regarding any signs of intoxication having been exhibited by plaintiff, and that in cases of traumatic injury it was his practice to record such signs if they were indeed present. Another physician indicated, based upon his reading of a leading medical textbook, that alcohol is absorbed from the stomach and intestines within a five-minute period after being consumed, and that its peak effects occur anywhere from thirty to ninety minutes following consumption. Plaintiff reported he consumed the alcoholic beverage in less than five minutes, that he then immediately mounted his bicycle and began riding, and that the accident occurred no more than thirty seconds thereafter. Plaintiff further indicated the bicycle flipped due to holes in the road created by construction of a new water line.\nEven assuming arguendo defendant\u2019s evidence tended to show intoxication by plaintiff at the time of his accident and some connection between intoxication and plaintiff\u2019s fall, therefore, defendant\u2019s showing was countered by contrary evidence of plaintiff. As we have repeatedly held, the Commission, and not this Court, is \u201cthe sole judge of the credibility of witnesses\u201d appearing before it as well as the weight to be given their testimony. Pittman v. Thomas & Howard, 122 N.C. App. 124, 129, 468 S.E.2d 283, 286, disc. review denied, 343 N.C. 513, 472 S.E.2d 18 (1996) (citation omitted). The Commission thus did not err in its conclusion of law that defendant failed to prove intoxication was a proximate cause of plaintiff\u2019s injury by accident.\nAffirmed; plaintiff\u2019s appeal dismissed.\nJudges WYNN and McGEE concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Sumrell, Sugg, Carmichael & Ashton, P.A., by Rudolph A. Ashton, III, and Scott C. Hart, and Kellum & Jones, by Michael E. Garland, for plaintiff.", "Brooks, Stevens & Pope, P.A., by Daniel C. Pope, Jr., Michael C. Sigmon, and Patricia Wilson Medynskifor defendant." ], "corrections": "", "head_matter": "JAMES RANDALL CREEL, Employee, Plaintiff-Appellant v. TOWN OF DOVER, Self-Insured Employer (administered by GAB Business Services, Inc.), Defendant-Appellant\nNo. COA96-47\n(Filed 1 July 1997)\n1. Workers\u2019 Compensation \u00a7 475 (NCI4th)\u2014 attorney fees\u2014 no findings by Commission \u2014 not raised in superior court\nPlaintiff\u2019s appeal from an Industrial Commission decision as to attorney fees was dismissed where the findings and conclusions of the Deputy Commissioner contained no findings regarding attorney fees, plaintiff registered no complaint regarding this omission in his appeal to the Commission, and the Opinion and Award of the Commission did not address the issue. Neither plaintiff nor his attorney complied with the statutory procedure; had he or his attorney brought the matter to the superior court, the Commission would have been compelled to explain its failure to award counsel fees. N.C.G.S. \u00a7 97-90.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 724-726.\n2. Workers\u2019 Compensation \u00a7 114 (NCI4th)\u2014 mayor injured while going to move city truck \u2014 injury arising out of employment\nThe Industrial Commission did not err in determining that a workers\u2019 compensation plaintiff sustained an injury arising out of and in the course of his employment as mayor of a town where the Commission found that a city-owned truck was parked across a street to block heavy traffic during construction; the truck was left in place at the end of the day; plaintiff, who had keys to the truck, responded to a telephone call by riding his bicycle to move the truck; and he was injured on the way. The Commission\u2019s findings reflect a reasonable relationship between plaintiffs trip to move the truck and his employment as mayor and fully support the Commission\u2019s conclusion of law that plaintiff sustained injury arising out of his employment.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 264-270.\nWorkmen\u2019s compensation: injury sustained while attending employer-sponsored social affair as arising out of and in the course of employment. 47 ALR3d 566.\n3. Workers\u2019 Compensation \u00a7 121 (NCI4th)\u2014 mayor injured while going to move city truck \u2014 allegations that mayor negligent \u2014 unavailing\nA workers\u2019 compensation plaintiff was not barred from compensation where plaintiff was the mayor of a town; a city-owned truck parked across a street during construction was left in place at the end of the day; plaintiff had keys to the truck and was called; he rode his bicycle toward the truck, stopping for a drink at his place of business; and he was injured when he resumed his ride. Although defendant contends that plaintiff chose to perform his duties in an illogical, grossly inefficient manner, the sole circumstances in which the fault of an employee bars benefits are when the injury was proximately caused by intoxication or being under the influence of a controlled substance, or when the injury was proximately caused by the employees\u2019s willful intention to injure or kill himself or another.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 256, 503.\n4. Workers\u2019 Compensation \u00a7 150 (NCI4th)\u2014 mayor injured while going to move city truck \u2014 no fixed time and place of employment \u2014 within the course of his employment\nA workers\u2019 compensation plaintiff was injured in the course of his employment where he was the mayor of a town in which a city-owned truck had been left parked across a street by a construction crew; he was called to move the truck because he had keys; his wife was dressed for bed and could not drive him; he decided to ride his bicycle because he would be unable to drive two vehicles back; he stopped at his business on the way for a drink; and he was injured when his bicycle struck a mound of dirt left by the construction crew. Although defendant argues that plaintiff had no identifiable time and space limits on his employment and thus cannot take advantage of the special errand exception to the coming and going rule, if plaintiff had no fixed time and place of employment, his journey to move the truck would fall within the course of his employment in that he would be in the category of workers whose jobs expose them to the risk of travel.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 264-270.\nModern status as to duration of employment where contract specifies no term but fixes daily or longer compensation. 93 ALR3d 659.\n5. Workers\u2019 Compensation \u00a7 139 (NCI4th)\u2014 mayor injured while going to move city truck \u2014 personal deviation \u2014 journey resumed\nThe evidence supported the Industrial Commission\u2019s finding that a workers\u2019 compensation plaintiff was injured after his personal deviation had been completed and his direct business route resumed where plaintiff was the mayor of a town; he was called at night at his home on Kornegay Street to move a city truck which construction crews had left blocking a street; he rode his bicycle so that he would not have two motor vehicles on the scene; he chose a Carmichael Street route which he thought would be safer and stopped for a drink at his business place on the comer of Komegay and Carmichael Streets; he was injured when he resumed his trip and his bike struck a mound of dirt left by the constmction crew; plaintiff testified that he rode his bike off his property onto Carmichael before the accident; and his daughter identified a picture of Carmichael as where he had fallen.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 293.\n6. Workers\u2019 Compensation \u00a7 129 (NCI4th)\u2014 mayor injured while going to move city truck \u2014 alcoholic beverage en route \u2014 evidence of intoxication insufficient\nThe Industrial Commission did not err by concluding that defendant failed to prove that intoxication was a proximate cause of a workers\u2019 compensation plaintiff\u2019s injury where plaintiff was the mayor of a town who was called at night to move a city truck which workers had left blocking a street; plaintiff rode his bicycle toward the site so that he would not have two vehicles on the scene; he stopped for a drink at his workplace on the way; and he was injured when he rode into a mound of dirt left by the construction crew. The relevant question in determining whether intoxication operates to bar benefits to a claimant under the Act is not whether the claimant was intoxicated, but whether the intoxication was more probably than not a cause in fact of the accident, and it is the province of the Commission to weigh any conflicting evidence regarding a claimant\u2019s intoxication and the contribution thereof to the accident. The evidence indisputably supports the portion of the Commission\u2019s finding that the drink consumed by plaintiff contained three ounces of alcohol and the indication that the exact amount was not precisely determined; in light of the Commission\u2019s finding that no appreciable amount of alcohol could have entered plaintiff\u2019s bloodstream by the time of the accident, a one ounce discrepancy in the amount of alcohol in the drink may not reasonably be said to have had an effect on the ultimate resolution; neither of the two medical experts whose depositions were presented by defendant expressed the opinion that plaintiff was intoxicated at the time of his accident or that intoxication proximately caused the accident; the Commission had before it evidence rebutting intoxication; and, assuming that defendant\u2019s evidence tended to show intoxication, that showing was countered by contrary evidence of plaintiff. The Commission is the sole judge of the credibility of witnesses appearing before it as well as the weight to be given their testimony.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 256, 503.\nAppeal by plaintiff and defendant from Opinion and Award entered 21 September 1995 by the North Carolina Industrial Commission. Heard in the Court of Appeals 26 September 1996.\nSumrell, Sugg, Carmichael & Ashton, P.A., by Rudolph A. Ashton, III, and Scott C. Hart, and Kellum & Jones, by Michael E. Garland, for plaintiff.\nBrooks, Stevens & Pope, P.A., by Daniel C. Pope, Jr., Michael C. Sigmon, and Patricia Wilson Medynskifor defendant." }, "file_name": "0547-01", "first_page_order": 585, "last_page_order": 598 }