{ "id": 9249421, "name": "GINGER DAYLE HUNT, Employee, Plaintiff v. TENDER LOVING CARE HOME CARE AGENCY, INC., Employer, PHARMACISTS MUTUAL INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Hunt v. Tender Loving Care Home Care Agency, Inc.", "decision_date": "2002-10-01", "docket_number": "No. COA01-1571", "first_page": "266", "last_page": "272", "citations": [ { "type": "official", "cite": "153 N.C. App. 266" } ], "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": "944 S.W.2d 524", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 50383 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "527" }, { "page": "525" }, { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/ark/328/0381-01" ] }, { "cite": "261 S.E.2d 16", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "18" } ], "opinion_index": 0 }, { "cite": "44 N.C. App. 335", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552678 ], "year": 1979, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/nc-app/44/0335-01" ] }, { "cite": "122 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "725", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "255 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572716 ], "year": 1961, "pin_cites": [ { "page": "725", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/255/0724-01" ] }, { "cite": "58 S.E.2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1950, "pin_cites": [ { "page": "634" }, { "page": "634" } ], "opinion_index": 0 }, { "cite": "231 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631900 ], "weight": 2, "year": 1950, "pin_cites": [ { "page": "712" }, { "page": "713" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0711-01" ] }, { "cite": "162 S.E.2d 119", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "120" } ], "opinion_index": 0 }, { "cite": "1 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554551 ], "year": 1968, "pin_cites": [ { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/nc-app/1/0553-01" ] }, { "cite": "82 S.E.2d 419", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "421", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "240 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601951 ], "year": 1954, "pin_cites": [ { "page": "456", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0453-01" ] }, { "cite": "470 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "31" }, { "page": "31" } ], "opinion_index": 0 }, { "cite": "343 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798871 ], "year": 1996, "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0279-01" ] }, { "cite": "45 S.E.2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1947, "pin_cites": [ { "page": "390" }, { "page": "536-37" } ], "opinion_index": 0 }, { "cite": "228 N.C. 346", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626344 ], "year": 1947, "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/nc/228/0346-01" ] }, { "cite": "322 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1984, "pin_cites": [ { "page": "652" }, { "page": "652" }, { "page": "652", "parenthetical": "citation omitted" }, { "page": "652" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 532", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525856 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "536" }, { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0532-01" ] }, { "cite": "293 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "198" } ], "opinion_index": 0 }, { "cite": "306 N.C. 248", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568137 ], "year": 1982, "pin_cites": [ { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0248-01" ] }, { "cite": "335 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "332", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 241", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521718 ], "year": 1985, "pin_cites": [ { "page": "247", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0241-01" ] }, { "cite": "456 S.E.2d 847", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "850" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 624", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920169 ], "year": 1995, "pin_cites": [ { "page": "627" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0624-01" ] }, { "cite": "486 S.E.2d 478", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1997, "pin_cites": [ { "page": "480", "parenthetical": "citing Moore v. Davis Auto Service, 118 N.C. App. 624, 627, 456 S.E.2d 847, 850 (1995)" }, { "page": "556" }, { "page": "483" }, { "page": "556-57" }, { "page": "483" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 547", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712005 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "552", "parenthetical": "citing Moore v. Davis Auto Service, 118 N.C. App. 624, 627, 456 S.E.2d 847, 850 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0547-01" ] } ], "analysis": { "cardinality": 625, "char_count": 14131, "ocr_confidence": 0.762, "pagerank": { "raw": 3.4267697616628134e-07, "percentile": 0.8789195817980122 }, "sha256": "98e45fcea281b94e15e5641f43fc4401849cdf6577187cd8b0c65b09da736906", "simhash": "1:afa10cdb2e720b56", "word_count": 2287 }, "last_updated": "2023-07-14T15:17:05.865609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and BRYANT concur." ], "parties": [ "GINGER DAYLE HUNT, Employee, Plaintiff v. TENDER LOVING CARE HOME CARE AGENCY, INC., Employer, PHARMACISTS MUTUAL INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nDefendants, Tender Loving Care Home Care Agency, Inc. (\u201cemployer\u201d) and Pharmacists Mutual Insurance Company (\u201ccarrier\u201d), appeal from the opinion and award of the North Carolina Industrial Commission (\u201cCommission\u201d). The Commission reversed the decision of the Deputy Commissioner and awarded benefits to Ginger Hunt (\u201cplaintiff\u2019) on the basis that the injury arose out of or in the course of employment. We reverse the opinion and award of the Commission.\nI. Facts\nPlaintiff was employed by employer as a certified nursing aide (CNA). Plaintiffs job included caring for Ms. Locklear, her sole patient, in Ms. Locklear\u2019s home and running errands for her. The plaintiff drove her personal vehicle to and from Ms. Locklear\u2019s residence and used it to run Ms. Locklear\u2019s errands. Plaintiff\u2019s 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\u2019s only patient during the entire period of her employment.\nOn Wednesday, 1 September 1999, plaintiff was injured in an accident while driving her personal vehicle to her home from Ms. Locklear\u2019s house. The distance between the two houses is approximately 13 miles.\nAt the time of the accident, employer reimbursed its CNAs for certain mileage expenses. Under employer\u2019s 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\u2019s average commute was approximately 15 miles one way.\nPlaintiff\u2019s 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.\nAfter 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\u2019 compensation benefits because the accident arose while plaintiff was coming to and from work. The Full Commission reversed the Deputy Commissioner\u2019s decision on 13 August 2001 on the grounds (1) that these facts fell within the \u201ctraveling salesmen\u2019s exception\u201d to the coming and going rule, and (2) that employer\u2019s reimbursement for mileage on some days and not others was arbitrary.\nII.Issue\nDefendants 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.\nIII.Standard of Review\nOur review of a decision of the Commission is limited to two issues: \u201c(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 conclusion of law.\u201d 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\u2019s conclusions of law are reviewable. Grant v. Burlington Industries, Inc., 77 N.C. App. 241, 247, 335 S.E.2d 327, 332 (1985) (citation omitted). \u201cWhether 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.\u201d 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)).\nIV.\u201cArising Out of and in the Course of Employment\u201d\nDefendants contend that plaintiff\u2019s injury was not an accident that arose out of and in the course of plaintiff\u2019s 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\u2019s injury occurred within the \u201cgoing and coming\u201d rale, and that plaintiff is not entitled to reimbursement and workers\u2019 compensation benefits for this particular trip.\nAn employee is entitled to workers\u2019 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). \u201cArising out of\u2019 refers to the cause of the accident; the employee must be about the business of the employer. Id. (citing Taylor v. Wake Forest, 228 N.C. 346, 350, 45 S.E.2d 387, 390 (1947)). \u201cIn the course of\u2019 points \u201cto the time, place, and circumstances under which an accident occurred.\u201d Id. at 536-37, 322 S.E.2d at 652. The accident must happen during the time and at the place of employment. Id. at 537, 322 S.E.2d at 652 (citation omitted).\nThe \u201cgoing and coming\u201d rule states that an accident occurring while an employee travels to and from work generally does not arise out of or in the course of employment. Royster v. Culp, Inc., 343 N.C. 279, 281, 470 S.E.2d 30, 31 (1996). An employee is not engaged in the business of the employer while driving his or her personal vehicle to the place of work or while leaving the place of employment to go home. Ellis v. American Service Co., Inc., 240 N.C. 453, 456, 82 S.E.2d 419, 421 (1954) (citations omitted). Accidents falling within this rule are not compensable. Royster at 281, 470 S.E.2d at 31.\nA. \u201cTraveling Salesman\u201d Exception\nThe \u201cgoing and coming rule\u201d is subject to some exceptions. The Commission found the \u201ctraveling salesman\u201d exception to apply here. If travel is contemplated as part of the employment, an injury from an accident during travel is compensable. Yates v. Hajoca Corp., 1 N.C. App. 553, 556, 162 S.E.2d 119, 120 (1968); Ross v. Young Supply Co., 71 N.C. App. 532, 537, 322 S.E.2d 648, 652 (1984). Recognizing that traveling to and from work is inherent in nearly all jobs, Professor Larson notes that \u201cfor employees having fixed hours and place of work, [an accident occurring while] going to and from work is covered only on the employer\u2019s premises.\" 1 Arthur Larson & Lex K. Larson, Larson\u2019s Workers\u2019 Compensation Law, \u00a7 13.01 (2001). Whether the travel is \u201cpart of the service\u201d performed is also significant. Id. at \u00a7 14.01 (2001).\nPlaintiff cites Creel v. Town of Dover for the proposition that an employee is within the course of employment when making a journey to perform a service on behalf of the employer. Creel, 126 N.C. App. 547, 486 S.E.2d 478 (1997). In Creel, the employer argued that because the plaintiff-employee, the town\u2019s mayor, did not have a job with fixed hours or fixed location, he could not take advantage of the \u201cspecial' errand\u201d exception to the \u201ccoming and going\u201d rule. Id. at 556, 486 S.E.2d at 483. This Court held the claim compensable under the \u201ctraveling salesman\u201d exception because \u201cemployees with no definite time and place of employment, . . ., are within the course of their employment when making a journey to perform a service on behalf of their employer.\u201d Id. at 556-57, 486 S.E.2d at 483. The applicability of the \u201ctraveling salesman\u201d rule to the facts at bar depends upon the determination of whether plaintiff had fixed job hours and a fixed job location.\nHere, plaintiff had worked for employer over two years. During the entirety of plaintiffs employment with employer, she had worked solely with Ms. Locklear, at Ms. Locklear\u2019s home 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. Her employment did not require attending to several patients, at differing locations with no fixed work location. Plaintiff had fixed hours and a fixed work location. The plaintiff\u2019s job description does not fall into the \u201ctraveling salesman\u201d exception.\nB. The Contractual Duty Exception\nThe Commission found plaintiff\u2019s claim compensable by also referencing the \u201ccontractual duty\u201d exception as being applicable. The \u201ccontractual duty\u201d exception provides that where an employer provides transportation or allowances to cover the cost of transportation, injuries occurring while going to or returning from work are compensable. Puett v. Bahnson Co., 231 N.C. 711, 712, 58 S.E.2d 633, 634 (1950). For a claim to fall within this exception, the transportation must be provided as a matter of right as a result of the employment contract. Whittington v. Schnierson & Sons, 255 N.C. 724, 725, 122 S.E.2d 724, 725 (1961) (citations omitted). If the transportation is provided permissively, gratuitously, or as an accommodation, the employee is not within the course of employment while in transit. Robertson v. Construction Co., 44 N.C. App. 335, 337, 261 S.E.2d 16, 18 (1979). Where the cost of transporting employees to and from work is made an incident to the contract of employment, compensation benefits have been allowed. Puett v. Bahnson Co., 231 N.C. 711, 713, 58 S.E.2d 633, 634 (1950).\nThe Commission\u2019s order contains no findings of fact that defendant provided transportation or its expenses as incident to its employment contracts. Employer maintained a policy to reimburse and assist its employees who traveled over 30 miles a day during a weekday or at all during the weekend with the costs of commuting. The parties stipulated that plaintiff was not compensated for her travel because she did not travel over 30 miles on 1 September 1999. The present situation does not fall within the \u201ccontractual duty\u201d exception to the \u201cgoing and coming\u201d rule. The Commission\u2019s conclusion of law that the partial mileage reimbursement policy of the employer was found to be \u201carbitrary\u201d does not bring that mileage policy into the \u201ccontractual duty\u201d exception.\nV. The Commission\u2019s Misapplication of Fact to Law\nThe Commission erred in its application of the findings of fact to its conclusions of law. The Commission found as fact that the \u201c [plaintiffs job duties included caring for the patient in the patient\u2019s home and running any errands for the patient....\u201d In its conclusions of law, the Commission states that \u201c[d]ue to plaintiff\u2019s employment as an in-home health care provider, she was required to travel in her own vehicle back and forth to the homes of the patients and in providing services to the patients.\u201d (emphasis supplied). This conclusion of law indicates that plaintiff was responsible for caring for more than one patient. It is undisputed that plaintiff worked with only one patient. This fact is critically important because it provides a fixed job location. Because plaintiff has a fixed job location, the accident does not fall under the \u201ctraveling salesman\u201d exception.\nThe Commission cites the Arkansas Supreme Court case of Olsten Kimberly Quality Care v. Pettey, 944 S.W.2d 524 (Ark. 1997), for the proposition that accidents occurring during the travel of a home care nurse from her home to that of her first patient are com-pensable. Olsten, 944 S.W.2d at 527. In Olsten, plaintiff-employee was a nurse that traveled daily to the homes of her patients. Id. at 525. Plaintiff\u2019s job description submitted her to the hazards of day-to-day travel in her own vehicle as she traveled between the homes of her patients. Id. at 527. As those facts are not present here, the Olsten case is distinguished.\nVI. Summary\nPlaintiff did not service more than one patient a day. Plaintiff had fixed hours and a fixed place of work. Her accident is not compensable under the \u201ctraveling salesman\u201d exception. Employer was not under a contractual duty to provide plaintiff with transportation or unqualified reimbursement. Plaintiff was injured while traveling to and from work and is precluded from receiving compensation benefits. We reverse the award of benefits by the Full Commission, and remand for entry of an order holding for defendant.\nReversed and Remanded.\nJudges MCCULLOUGH and BRYANT concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Musselwhite, Musselwhite, Musselwhite & Branch, by James W. Musselwhite, for plaintiff-appellee.", "Young Moore and Henderson P.A., by Joe E. Austin, Jr. and Zachary G. Bolen, for defendants-appellants." ], "corrections": "", "head_matter": "GINGER DAYLE HUNT, Employee, Plaintiff v. TENDER LOVING CARE HOME CARE AGENCY, INC., Employer, PHARMACISTS MUTUAL INSURANCE COMPANY, Carrier, Defendants\nNo. COA01-1571\n(Filed 1 October 2002)\n1. Workers\u2019 Compensation\u2014 going and coming rule \u2014 traveling salesman exception \u2014 not applicable\nThe traveling salesman exception to the going and coming rule did not apply in a workers\u2019 compensation case where plaintiff-nursing aide had worked for the entirety of her employment at one home and was not required to attend multiple patients with no fixed work location.\n2. Workers\u2019 Compensation\u2014 going and coming rule \u2014 contractual duty exception \u2014 not applicable\nThe contractual duty exception to the going and coming rule did not apply in a workers\u2019 compensation case where plaintiff was employed as a nursing aide, her employer provided reimbursement for employees who traveled over 30 miles a day, and plaintiff did not travel that distance on the day of the accident. The Commission\u2019s conclusion that this employer\u2019s reimbursement policy was arbitrary did not bring the mileage policy within the exception.\n3. Workers\u2019 Compensation\u2014 nurse\u2019s aide \u2014 automobile accident\nThe Industrial Commission erred in a workers\u2019 compensation case by concluding that plaintiff nursing aide\u2019s job duties as an in-home health care provider included traveling to and from the homes of patients where it was undisputed that plaintiff worked with one patient. Plaintiff had a fixed job location and her automobile accident does not fall under the traveling salesman exception to the going and coming rule.\nAppeal by defendants from Opinion and Award of the North Carolina Industrial Commission entered 13 August 2001. Heard in the Court of Appeals 11 September 2002.\nMusselwhite, Musselwhite, Musselwhite & Branch, by James W. Musselwhite, for plaintiff-appellee.\nYoung Moore and Henderson P.A., by Joe E. Austin, Jr. and Zachary G. Bolen, for defendants-appellants." }, "file_name": "0266-01", "first_page_order": 296, "last_page_order": 302 }