{ "id": 11800056, "name": "THOMAS AARON, Employee, Plaintiff v. NEW FORTIS HOMES, INC., Employer, and THE MARYLAND INSURANCE GROUP, Insurance Carrier, Defendants", "name_abbreviation": "Aaron v. New Fortis Homes, Inc.", "decision_date": "1997-11-18", "docket_number": "No. COA96-1539", "first_page": "711", "last_page": "717", "citations": [ { "type": "official", "cite": "127 N.C. App. 711" } ], "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": "489 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "380" } ], "opinion_index": 0 }, { "cite": "347 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551278 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0126-01" ] }, { "cite": "265 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "391" } ], "opinion_index": 0 }, { "cite": "300 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559969 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0164-01" ] }, { "cite": "352 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "84 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168083 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/84/0221-01" ] }, { "cite": "317 S.E.2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "injury arose in course of employment where traveling shoe salesperson killed while driving from one sales call to another" } ], "opinion_index": 0 }, { "cite": "311 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686309, 4684742, 4680939, 4682746, 4686078 ], "year": 1984, "pin_cites": [ { "parenthetical": "injury arose in course of employment where traveling shoe salesperson killed while driving from one sales call to another" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0304-02", "/nc/311/0304-05", "/nc/311/0304-01", "/nc/311/0304-04", "/nc/311/0304-03" ] }, { "cite": "306 S.E.2d 543", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "544" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526353 ], "year": 1983, "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0144-01" ] }, { "cite": "364 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "422-23" } ], "opinion_index": 0 }, { "cite": "321 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566796 ], "year": 1988, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0350-01" ] }, { "cite": "472 S.E.2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "207" }, { "page": "207" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 129", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11912019 ], "year": 1996, "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0129-01" ] }, { "cite": "397 S.E.2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492968, 2496467, 2498198, 2496765, 2494143 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0488-05", "/nc/327/0488-03", "/nc/327/0488-01", "/nc/327/0488-02", "/nc/327/0488-04" ] }, { "cite": "392 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "99 N.C. App. 302", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522424 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/99/0302-01" ] }, { "cite": "471 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "citing Watkins v. City of Asheville, 99 N.C. App. 302, 392 S.E.2d 754, disc. review denied, 327 N.C. 488, 397 S.E.2d 238 (1990)" } ], "opinion_index": 0 }, { "cite": "343 N.C. 305", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798896, 798810, 798767, 798951 ], "year": 1996, "pin_cites": [ { "parenthetical": "citing Watkins v. City of Asheville, 99 N.C. App. 302, 392 S.E.2d 754, disc. review denied, 327 N.C. 488, 397 S.E.2d 238 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0305-03", "/nc/343/0305-02", "/nc/343/0305-01", "/nc/343/0305-04" ] }, { "cite": "465 S.E.2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "345", "parenthetical": "citing Watkins v. City of Asheville, 99 N.C. App. 302, 392 S.E.2d 754, disc. review denied, 327 N.C. 488, 397 S.E.2d 238 (1990)" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917453 ], "year": 1996, "pin_cites": [ { "page": "389", "parenthetical": "citing Watkins v. City of Asheville, 99 N.C. App. 302, 392 S.E.2d 754, disc. review denied, 327 N.C. 488, 397 S.E.2d 238 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0387-01" ] } ], "analysis": { "cardinality": 580, "char_count": 13633, "ocr_confidence": 0.757, "pagerank": { "raw": 1.765759568169798e-07, "percentile": 0.7106694251286465 }, "sha256": "d8ee7a9a79559bbc5ec673d0136317ced47340179adcc5f39d0ef4907099f579", "simhash": "1:f13f45bbb4fc4a4c", "word_count": 2133 }, "last_updated": "2023-07-14T19:43:16.540119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, John C., and TIMMONS-GOODSON concur." ], "parties": [ "THOMAS AARON, Employee, Plaintiff v. NEW FORTIS HOMES, INC., Employer, and THE MARYLAND INSURANCE GROUP, Insurance Carrier, Defendants" ], "opinions": [ { "text": "EAGLES, Judge.\nWe first consider whether the Commission erred in finding that plaintiffs injuries were caused by an accident arising out of and in the course of his employment with New Fortis Homes, Inc. The standard of appellate review of an opinion and award of the Industrial Commission is well established. Our review \u201cis limited to a determination of (1) whether the Commission\u2019s findings of fact are supported by any competent evidence in the record; and (2) whether the Commission\u2019s findings justify its legal conclusions.\u201d Counts v. Black & Decker Corp., 121 N.C. App. 387, 389, 465 S.E.2d 343, 345, disc. review denied, 343 N.C. 305, 471 S.E.2d 68 (1996) (citing Watkins v. City of Asheville, 99 N.C. App. 302, 392 S.E.2d 754, disc. review denied, 327 N.C. 488, 397 S.E.2d 238 (1990)).\nDefendants first contend that the so-called \u201cGoing and Coming\u201d rule applies to bar plaintiff\u2019s claim, arguing that injuries occurring while a covered worker is traveling to and from his place of employment are not compensable. See Jennings v. Backyard Burgers of Asheville, 123 N.C. App. 129, 131, 472 S.E.2d 205, 207 (1996). Defendant further argues that the \u201cspecial errand\u201d exception to the \u201cGoing and Coming\u201d rule does not apply. Defendant contends the accident did not arise in the course of employment because plaintiff was not performing any specific duties for defendant and that the trip did not benefit the employer. Further, defendant argues, under the \u201cincreased risk\u201d analysis, the hazard was common and plaintiff was not exposed to a greater danger than that of the general public. See Roberts v. Burlington Industries, Inc., 321 N.C. 350, 358, 364 S.E.2d 417, 422-23 (1988). We are not persuaded.\nThe Industrial Commission concluded that the accident occurred while plaintiff was performing a special errand that benefitted the employer. There were sufficient findings of fact supported by competent evidence on the record to support that conclusion of law.\nOrdinarily, an injury occurring while an employee travels to or from work does not arise in the course of employment and is not compensable. See Jennings, 193 N.C. App. at 131, 472 S.E.2d at 207. The evidence here showed that the automobile accident occurred as plaintiff was in route from the worksite to the hospital while transporting a fellow employee, McDuff. Furthermore, travel was not an incident of plaintiffs employment as a roofer and construction worker. See Hicks v. Brown Shoe Co., 64 N.C. App. 144, 147, 306 S.E.2d 543, 544 (1983), disc. review denied, 311 N.C. 304, 317 S.E.2d 680 (1984) (injury arose in course of employment where traveling shoe salesperson killed while driving from one sales call to another).\nThe journey here was brought into the course of employment because plaintiff was performing a \u201cspecial errand\u201d that directly benefited the employer. See McBride v. Peony Corp., 84 N.C. App. 221, 352 S.E.2d 236 (1987). There was testimony that McDuff had been injured on the job and required medical attention and that treatment was necessary before work could continue. Further, by protecting the health of McDuff and obtaining proper treatment for his injury, New Fortis Homes\u2019 exposure to a more serious workers\u2019 compensation claim by McDuff was reduced. Accordingly, we conclude there was competent evidence of record and adequate findings of fact to support the Commission\u2019s conclusion that the automobile accident occurred while plaintiff was on a \u201cspecial errand\u201d for defendant-employer.\nWe next consider whether the Commission erred in finding that plaintiff\u2019s injuries were causally related to the automobile accident and that plaintiff remains incapable of earning any wages since the accident.\nDefendants claim that plaintiff has failed to prove that his right knee problems were causally related to the automobile accident. The plaintiff had various degenerative changes and other conditions of the knee that predated the accident. Plaintiff\u2019s treating physician, Dr. Edmund Campion, testified that there was \u201cabsolutely no way of telling\u201d whether plaintiff\u2019s knee problems were caused by an old injury or a new injury. Additionally, defendants claim that there is evidence that plaintiff is working. Accordingly, defendants argue that plaintiff obviously is capable of earning wages.\nThere is competent evidence to support the Commission\u2019s finding that plaintiff\u2019s knee injury is causally related to the automobile accident. Our Supreme Court stated the standard of medical proof in workers\u2019 compensation cases in Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 265 S.E.2d 389 (1980):\nThere must be competent evidence to support the inference that the accident in question resulted in the injury complained of, i. e., some evidence that the accident at least might have or could have produced the particular disability in question.\nId. at 167, 265 S.E.2d at 391. Dr. Campion testified that the plaintiff\u2019s injuries were \u201centirely consistent\u201d with the automobile accident and could have been caused by the accident. Additionally, plaintiff testified that he had no ligament damage prior to the accident and that he had never before seen a doctor for knee problems or knee pain. Accordingly, we conclude that there was competent evidence of record and adequate findings of fact to support the Commission\u2019s conclusion that the plaintiff\u2019s knee injury was causally related to the automobile accident.\nThere was also competent evidence of record to support the Commission\u2019s finding that plaintiff remained totally disabled as of the date of the hearing. Dr. Campion restricted plaintiff from any work until he had knee surgery. As of the date of the hearing, the plaintiff had not yet had knee surgery and Dr. Campion\u2019s advice remained in effect. Accordingly, there was sufficient evidence to support the Commission\u2019s findings.\nFinally, we consider whether the Commission erred in determining plaintiff\u2019s average weekly wage and in denying defendants\u2019 motion for a new hearing or to take additional evidence. The cause must be remanded for the taking of additional evidence on the issue of plaintiff\u2019s wages and benefits.\nThe Form 22 relied upon in determining plaintiff\u2019s average weekly wage included income from sources other than New Fortis Homes, Inc. The calculation of an employee\u2019s average wage is governed by G.S. 97-2(5). In construing G.S. 97-2(5), our Supreme Court recently stated that the definition of average weekly wage and the methods of computing such wages set out in the statute \u201cdo not allow the inclusion of wages or income earned in employment or work other than that in which the employee was injured.\u201d McAninch v. Buncombe County Schools, 347 N.C. 126, 489 S.E.2d 375, 380 (1997). The evidence before the Commission on the issue of wages, the Form 22, included wages from sources other than New Fortis Homes, Inc. Accordingly, on remand the Commission should take new evidence and calculate plaintiff\u2019s average weekly wage but not include wages from sources other than New Fortis Homes, Inc.\nIn sum, the Industrial Commission\u2019s conclusion that plaintiffs injuries arose out of and in the course of employment with New Fortis Homes, Inc. is affirmed. The Industrial Commission\u2019s conclusion that plaintiff\u2019s injuries are causally related to the automobile accident and that he remains incapable of earning any wages is affirmed. Finally, the Industrial Commission\u2019s determination of plaintiff\u2019s average weekly wage and its denial of defendant\u2019s motion for a new hearing or to take additional evidence are reversed. The cause is remanded to the Commission for hearing and determination of plaintiff\u2019s average weekly wage and appropriate award.\nAffirmed in part, reversed in part, and remanded.\nJudges MARTIN, John C., and TIMMONS-GOODSON concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Law Offices of Nancy P. White, by Nancy P. White and J. David Stradley, for plaintiff-appellee.", "Wishart, Norris, Henninger & Pittman, P.A., by W. Timothy Moreau, for defendant-appellants." ], "corrections": "", "head_matter": "THOMAS AARON, Employee, Plaintiff v. NEW FORTIS HOMES, INC., Employer, and THE MARYLAND INSURANCE GROUP, Insurance Carrier, Defendants\nNo. COA96-1539\n(Filed 18 November 1997)\n1. Workers\u2019 Compensation \u00a7 149 (NCI4th)\u2014 injury while taking supervisor to hospital \u2014 special errand\nThe Industrial Commission did not err by finding in a workers\u2019 compensation action that plaintiff\u2019s injuries were caused by an accident arising out of and in the course of his employment where plaintiff was a roofer and construction worker; his supervisor stepped on a nail and asked plaintiff to take him to the hospital; plaintiff was injured in an automobile accident on the way to the hospital; and he was unable to return to work due to his injuries. This journey was brought into the course of employment because plaintiff was performing a \u201cspecial errand\u201d that directly benefitted the employer in that treatment of the supervisor was necessary before work could continue and in that defendant\u2019s exposure to a more serious workers\u2019 compensation claim was reduced by obtaining proper treatment for the injury.\n2. Workers\u2019 Compensation \u00a7 120 (NCI4th)\u2014 knee injury\u2014 previous degeneration \u2014 injury consistent with accident\u2014 no previous pain\nThere was competent evidence to support the Industrial Commission\u2019s finding in a workers\u2019 compensation action that plaintiffs knee injury is causally related to an automobile accident suffered in the course of his employment where plaintiff had various degenerative changes and other conditions of the knee that predated the accident, but plaintiff\u2019s doctor testified that plaintiff\u2019s injuries were \u201centirely consistent\u201d with the automobile accident and could have been caused by the accident, and plaintiff testified that he had no ligament damage prior to the accident and that he had never before seen a doctor for knee problems or knee pain.\n3. Workers\u2019 Compensation \u00a7 228 (NCI4th)\u2014 disability \u2014 doctor\u2019s restriction\nThere was competent evidence to support the Industrial Commission\u2019s finding that a workers\u2019 compensation plaintiff remained totally disabled as of the date of the hearing where plaintiff\u2019s doctor restricted him from any work until he had knee surgery and plaintiff had not yet had the surgery.\n4. Workers\u2019 Compensation \u00a7 260 (NCI4th)\u2014 average weekly wage \u2014 Form 22 \u2014 other sources\nThe Industrial Commission erred in a workers\u2019 compensation action by denying defendants\u2019 motion for a new hearing or to take additional evidence on the issue of plaintiffs\u2019 wages and benefits where the Form 22 relied upon in determining plaintiff\u2019s average weekly wage included income from other sources.\nAppeal by defendants from opinion and award entered 16 September 1996 by the Full Commission. Heard in the Court of Appeals 9 September 1997.\nOn 30 April 1994, plaintiff, a 30-year-old roofer and construction worker, was working on a home being built by defendant-employer, New Fortis Homes, Inc. While stepping down from a ladder, plaintiff\u2019s supervisor, Thomas McDuff, stepped on a nail and injured himself, requiring medical assistance. Accordingly, McDuff asked the plaintiff, Thomas Aaron, to take him to the hospital. Aaron agreed and on the way to the hospital, he became involved in an automobile accident and sustained disabling feet, leg, and facial injuries. Aaron underwent medical treatment and was unable to return to work due to his injuries. Aaron remains incapable of earning wages and has not been released for any type of work. Aaron initiated this proceeding seeking workers\u2019 compensation benefits for injuries resulting from the automobile accident.\nThe matter was initially heard before a Deputy Commissioner on 1 March 1995. The parties agreed by stipulation to determine plaintiffs wages using a Form 22 Wage Chart under the belief that New Fortis Homes would have records of wages paid to Aaron. Accordingly, wages were not an issue at the hearing. Following the hearing, the Deputy Commissioner gave defendants thirty days within which to submit a Form 22 Wage Chart.\nFollowing the hearing, defendants discovered that they had documentation only of amounts paid to McDuff, who was the contractor on the crew that included Aaron. In an effort to determine Aaron\u2019s wages, defendants requested that plaintiff\u2019s attorney (who also represented McDuff) procure wage records. As a result, plaintiff himself filled out the Form 22 for submission to the Industrial Commission, including income from sources other than New Fortis Homes, Inc., and McDuff signed and certified it. On 3 April 1995, defendants notified the deputy commissioner regarding the Form 22 and asked for a thirty (30) day extension to obtain the wage records. On 3 May 1995, defendants notified the deputy commissioner that they would not stipulate to the Form 22 and requested that the record be left open until defendants could depose McDuff.\nIn an Opinion and Award filed 19 February 1996, the Deputy Commissioner ruled in favor of plaintiff and awarded him total temporary disability compensation of $466/week as determined by the Form 22 Wage Chart. Defendants appealed and filed a Motion for New Hearing to Take Additional Evidence or for the Commission to Receive Further Evidence.\nBy Opinion and Award dated 16 September 1996, the Full Commission affirmed the Deputy Commissioner\u2019s decision. The Commission concluded that plaintiff was on a special errand that benefitted his employer. Accordingly, the injury arose out of and occurred in the course of employment. The Commission also denied defendants\u2019 motions, reasoning that defendants should have requested additional time to complete the record prior to its being closed. Defendants appeal.\nLaw Offices of Nancy P. White, by Nancy P. White and J. David Stradley, for plaintiff-appellee.\nWishart, Norris, Henninger & Pittman, P.A., by W. Timothy Moreau, for defendant-appellants." }, "file_name": "0711-01", "first_page_order": 747, "last_page_order": 753 }