{ "id": 8957962, "name": "ALICE Y. McGRADY, Employee, Plaintiff v. OLSTEN CORP., Employer, and HARTFORD SPECIALTY RISK, Carrier, Defendants, Defendant-Appellants", "name_abbreviation": "McGrady v. Olsten Corp.", "decision_date": "2003-08-05", "docket_number": "No. COA02-1035", "first_page": "643", "last_page": "650", "citations": [ { "type": "official", "cite": "159 N.C. App. 643" } ], "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": "85 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "600" } ], "opinion_index": 0 }, { "cite": "241 N.C. 448", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612018 ], "year": 1955, "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0448-01" ] }, { "cite": "133 S.E.2d 702", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "704" } ], "opinion_index": 0 }, { "cite": "260 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576353 ], "year": 1963, "pin_cites": [ { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0760-01" ] }, { "cite": "352 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "240", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168083 ], "year": 1987, "pin_cites": [ { "page": "226-27", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0221-01" ] }, { "cite": "310 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 822", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763336, 4764105, 4762317, 4760943, 4767702 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0822-05", "/nc/309/0822-02", "/nc/309/0822-01", "/nc/309/0822-04", "/nc/309/0822-03" ] }, { "cite": "303 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "184" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 544", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523761 ], "pin_cites": [ { "page": "547" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0544-01" ] }, { "cite": "310 S.E.2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "claimant injured while running to vending machine in violation of company rules" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524723 ], "year": 1983, "pin_cites": [ { "parenthetical": "claimant injured while running to vending machine in violation of company rules" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0457-01" ] }, { "cite": "177 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "183", "parenthetical": "plaintiff suffered fatal accident while idly knocking dust and debris from conveyor rollers, actions which \"had no \"relation to his duties\"" } ], "opinion_index": 0 }, { "cite": "277 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565857 ], "year": 1970, "pin_cites": [ { "page": "445", "parenthetical": "plaintiff suffered fatal accident while idly knocking dust and debris from conveyor rollers, actions which \"had no \"relation to his duties\"" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0444-01" ] }, { "cite": "325 S.E.2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 796", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4758339, 4749837, 4759214, 4754262, 4759069 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0796-02", "/nc/312/0796-01", "/nc/312/0796-05", "/nc/312/0796-04", "/nc/312/0796-03" ] }, { "cite": "117 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "479" } ], "opinion_index": 0 }, { "cite": "253 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626303 ], "year": 1960, "pin_cites": [ { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0554-01" ] }, { "cite": "318 S.E.2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "538", "parenthetical": "plaintiff suffers compensable injury \"participating in horseplay\" with deboning knife" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 88", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520438 ], "year": 1984, "pin_cites": [ { "page": "92", "parenthetical": "plaintiff suffers compensable injury \"participating in horseplay\" with deboning knife" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0088-01" ] }, { "cite": "200 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "195", "parenthetical": "denying compensation to claimant who aspirated food while dining out during a business trip" } ], "opinion_index": 0 }, { "cite": "284 N.C. 230", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560855 ], "year": 1973, "pin_cites": [ { "page": "233", "parenthetical": "denying compensation to claimant who aspirated food while dining out during a business trip" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0230-01" ] }, { "cite": "525 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "484" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 587", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241064 ], "year": 2000, "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0587-01" ] }, { "cite": "579 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "118", "parenthetical": "citing Okwara v. Dillard Dep't Stores, Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000)" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 168", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185540 ], "year": 2003, "pin_cites": [ { "page": "180", "parenthetical": "citing Okwara v. Dillard Dep't Stores, Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0168-01" ] }, { "cite": "225 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "581" }, { "page": "582", "parenthetical": "injury compensable if \"competent proof exists that the employee understood, or had reasonable grounds to believe that the act resulting in injury was incidental to his employment\"" } ], "opinion_index": 0 }, { "cite": "290 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560920 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "281" }, { "page": "283", "parenthetical": "injury compensable if \"competent proof exists that the employee understood, or had reasonable grounds to believe that the act resulting in injury was incidental to his employment\"" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0276-01" ] }, { "cite": "364 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "420" } ], "opinion_index": 0 }, { "cite": "321 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566796 ], "year": 1988, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0350-01" ] }, { "cite": "386 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "citing Roberts v. Burlington Indus., Inc., 321 N.C. 350, 354, 364 S.E.2d 417, 420 (1988)" } ], "opinion_index": 0 }, { "cite": "325 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488046 ], "year": 1989, "pin_cites": [ { "parenthetical": "citing Roberts v. Burlington Indus., Inc., 321 N.C. 350, 354, 364 S.E.2d 417, 420 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0702-01" ] }, { "cite": "377 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "780-81", "parenthetical": "citing Roberts v. Burlington Indus., Inc., 321 N.C. 350, 354, 364 S.E.2d 417, 420 (1988)" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 242", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527997 ], "year": 1989, "pin_cites": [ { "page": "247-48", "parenthetical": "citing Roberts v. Burlington Indus., Inc., 321 N.C. 350, 354, 364 S.E.2d 417, 420 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0242-01" ] }, { "cite": "188 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "354", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "281 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574679 ], "year": 1972, "pin_cites": [ { "page": "239", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0234-01" ] }, { "cite": "519 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "351 N.C. 46", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155933 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/351/0046-01" ] }, { "cite": "162 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "1 N.C. App. 448", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553835, 8553878 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/1/0448-01", "/nc-app/1/0448-02" ] }, { "cite": "514 S.E.2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "532-33" }, { "parenthetical": "plaintiff injured in parking lot after she left production line in violation of company rules" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 14", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11215376 ], "weight": 2, "pin_cites": [ { "page": "17" }, { "parenthetical": "plaintiff injured in parking lot after she left production line in violation of company rules" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0014-01" ] }, { "cite": "158 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "571" } ], "opinion_index": 0 }, { "cite": "272 N.C. 433", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573243 ], "year": 1968, "pin_cites": [ { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0433-01" ] }, { "cite": "293 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1982, "pin_cites": [ { "page": "198" }, { "page": "199" }, { "page": "202", "parenthetical": "compensation not barred by actions that violate employer's rules unless undertaken in \"disobedience of a direct and specific order by a then present superior\"" } ], "opinion_index": 0 }, { "cite": "306 N.C. 248", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568137 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "251" }, { "page": "252" }, { "page": "259", "parenthetical": "compensation not barred by actions that violate employer's rules unless undertaken in \"disobedience of a direct and specific order by a then present superior\"" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0248-01" ] }, { "cite": "486 S.E.2d 478", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "481", "parenthetical": "citing Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248, 251, 293 S.E.2d 196, 198 (1982)" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 547", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712005 ], "year": 1997, "pin_cites": [ { "page": "552", "parenthetical": "citing Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248, 251, 293 S.E.2d 196, 198 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0547-01" ] }, { "cite": "265 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "390" } ], "opinion_index": 0 }, { "cite": "300 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559969 ], "year": 1980, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0164-01" ] }, { "cite": "581 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "141", "parenthetical": "quoting Click v. Freight Carriers, 300 N.C. 164, 166, 265 S.E.2d 389, 390 (1980)" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 480", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188153 ], "year": 2003, "pin_cites": [ { "page": "483", "parenthetical": "quoting Click v. Freight Carriers, 300 N.C. 164, 166, 265 S.E.2d 389, 390 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0480-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "414", "parenthetical": "quoting Anderson v. Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "681", "parenthetical": "quoting Anderson v. Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "233 S.E.2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "531" } ], "opinion_index": 0 }, { "cite": "292 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569857 ], "year": 1977, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0399-01" ] }, { "cite": "486 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "254", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712737 ], "year": 1997, "pin_cites": [ { "page": "680", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0678-01" ] } ], "analysis": { "cardinality": 945, "char_count": 17661, "ocr_confidence": 0.751, "pagerank": { "raw": 4.4793276177203605e-08, "percentile": 0.28095421779416485 }, "sha256": "20ba90701932b76ea72d17cb82eeb3f1f68bf7cc105c16cff54e5c11be7f5df0", "simhash": "1:a385759ab45f72de", "word_count": 2836 }, "last_updated": "2023-07-14T16:27:55.515420+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge BRYANT concur." ], "parties": [ "ALICE Y. McGRADY, Employee, Plaintiff v. OLSTEN CORP., Employer, and HARTFORD SPECIALTY RISK, Carrier, Defendants, Defendant-Appellants" ], "opinions": [ { "text": "LEVINSON, Judge.\nDefendants (Olsten Corporation and ITT Specialty Risk Services, Inc.) appeal from a divided opinion of the Industrial Commission, awarding plaintiff (Alice McGrady) medical benefits and temporary total disability. We affirm.\nThe factual background of this appeal is summarized as follows: Plaintiff was fifty years old at the time of the hearing and had an eighth grade education. In 1994, she completed the course required for certification as a certified nursing assistant (CNA), and was employed by defendant as a CNA. As a CNA, plaintiff provided in-home care for patients requiring assistance with daily living. In July, 1999, plaintiff\u2019s only client was Ms. Withers, an elderly woman with limited physical abilities. Plaintiff assisted Ms. Withers with bathing, dressing, personal care, housekeeping, and meal preparation. In addition, plaintiff drove Ms. Withers to various places in the community and did her grocery shopping. Ms. Withers enjoyed fresh fruit, which plaintiff obtained for her from the local farmers market or at a grocery store.\nPlaintiff\u2019s regular hours were from 6:00 a.m. until 3:30 p.m. On 26 July 1999 plaintiff arrived at her usual time and assisted Ms. Withers with breakfast. During breakfast, Ms. Withers asked plaintiff to take her dog \u201cFootsie\u201d out to the yard. Plaintiff testified she \u201cusually took her out. . . sometimes twice a day.\u201d While plaintiff was outside with Footsie, she noticed that Ms. Withers\u2019 pear tree had borne a pear. She had previously obtained fruit from Ms. Withers\u2019 peach tree without incident and decided to retrieve the pear for her and Ms. Withers to share. Plaintiff began to climb the tree; however, she soon realized that the pear was too high up for her to shake it out of the tree, so she started back down. As plaintiff was climbing back to the ground, she fell. Plaintiff was taken by ambulance to a hospital, where physicians determined that she had broken her back, suffering \u201c50 percent compression fracture\u201d of her spine, and resulting in \u201cquite a bit of damage to the vertebral body.\u201d She was initially treated with pain medication and bed rest, until further examination revealed that plaintiff had both an \u201cacute compression fracture\u201d and a \u201cburst fracture\u201d of the spine. Accordingly, plaintiff\u2019s treating physician performed surgery on her vertebrae and implanted steel rods in her back. Despite the surgery, plaintiff continued to experience pain, and her physician testified at the hearing that it was unlikely that plaintiff could ever return to work, \u201ceven light duty.\u201d He also testified that plaintiff\u2019s injuries were caused by the fall from Ms. Withers\u2019 pear tree.\nOn 9 September 1999, plaintiff filed a claim for workers\u2019 compensation, which was denied by defendants on the basis that her injuries were not causally connected to her employment. A hearing was conducted before Deputy Commissioner Wanda Taylor on 17 April 2000, and on 5 October 2000 the deputy commissioner issued an opinion denying plaintiff\u2019s claim for workers\u2019 compensation. The opinion concluded that, although plaintiff\u2019s accident had proximately caused her injuries, the fall itself \u201cwas not an activity which a person so employed might reasonably do in employment such as plaintiff\u2019s.\u201d Plaintiff appealed to the Full Commission, which conducted a review of the record on 7 January 2002. On 18 April 2002, the Industrial Commission issued an opinion reversing the deputy commissioner and awarding plaintiff medical compensation and temporary total disability. The opinion concluded that plaintiff\u2019s attempt to get a pear from Ms. Withers\u2019 pear tree either was \u201cwithin plaintiff\u2019s work duties\u201d or was not a serious deviation from her job duties, and thus that plaintiff\u2019s injuries were compensable. One commissioner dissented on the basis that \u201c[c]limbing a pear tree was not a contemplated action of plaintiff\u2019s employment\u201d and thus that there was \u201cno causal relationship between plaintiff\u2019s injuries and... her employment as an in-home caregiver.\u201d From this opinion and award, defendants appealed.\nStandard of Review\n\u201cThe standard of appellate review of an opinion and award of the Industrial Commission in a workers\u2019 compensation case is whether there is any competent evidence in the record to support the Commission\u2019s findings of fact and whether these findings support the Commission\u2019s conclusions of law.\u201d Lineback v. Wake County Board of Commissioners, 126 N.C. App. 678, 680, 486 S.E.2d 252, 254 (1997) (citation omitted). Further, the Industrial Commission\u2019s findings of fact \u201care conclusive on appeal if supported by any competent evidence.\u201d Gallimore v. Marilyn\u2019s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977). \u201cThus, on appeal, this Court \u2018does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\u2019 \u2019\u2019Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Anderson v. Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). \u201cEven where there is competent evidence to the contrary, we must defer to the findings of the Commission where supported by any competent evidence. The Commission\u2019s findings of fact may only be set aside when \u2018there is a complete lack of competent evidence to support them.\u2019 \u201d Griggs v. E. Omni Constructors, 158 N.C. App. 480, 483, 581 S.E.2d 138, 141 (2003) (quoting Click v. Freight Carriers, 300 N.C. 164, 166, 265 S.E.2d 389, 390 (1980)). The Commission\u2019s conclusions of law, however, are reviewed de novo. Id.\nDefendants argue on appeal that the Industrial Commission erred by finding that plaintiff suffered a compensable injury. Under N.C.G.S. \u00a7 97-2(6) (2001) a compensable injury \u201cmean[s] only injury by accident arising out of and in the course of the employment!.]\u201d In the present case, there is no dispute that plaintiffs injuries were caused by an accident. However, defendants contend that plaintiff\u2019s injury did not arise \u201cout of and in the course of\u2019 her employment.\n\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 v. Town of Dover, 126 N.C. App. 547, 552, 486 S.E.2d 478, 481 (1997) (citing Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248, 251, 293 S.E.2d 196, 198 (1982)). \u201cThe phrase \u2018arising out of\u2019 refers to the requirement that there be some causal connection between the injury and claimant\u2019s employment. \u2018In the course of\u2019 refers to the time and place constraints on the injury; the injury must occur during the period of employment at a place where an employee\u2019s duties are calculated to take him[.]\u201d Creel, id. (citing Clark v. Burton Lines, 272 N.C. 433, 437, 158 S.E.2d 569, 571 (1968)). Thus, \u201c[w]here the evidence shows that the injury occurred during the hours of employment, at the place of employment, and while the claimant was actually in the performance of the duties of the employment, the injury is in the course of the employment.\u201d Choate v. Sara Lee Products, 133 N.C. App. 14, 17, 514 S.E.2d 529, 532-33 (citing Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968)), aff'd, 351 N.C. 46, 519 S.E.2d 523 (1999). \u201cIn other words, to be compensable, the injury must spring from the employment or have its origin therein.\u201d Robbins v. Nicholson, 281 N.C. 234, 239, 188 S.E.2d 350, 354 (1972) (citations omitted). The burden of proof is upon the claimant who \u201cmust establish both the \u2018arising out of and \u2018in the course of requirements to be entitled to compensation.\u201d Culpepper v. Fairfield Sapphire Valley, 93 N.C. App. 242, 247-48, 377 S.E.2d 777, 780-81, aff'd, 325 N.C. 702, 386 S.E.2d 174 (1989) (citing Roberts v. Burlington Indus., Inc., 321 N.C. 350, 354, 364 S.E.2d 417, 420 (1988)). Moreover:\nwhile the \u2018arising out of and \u2018in the course of elements are distinct tests, they are interrelated and cannot be applied entirely independently. Both are part of a single test of work-connection. Because \u2018the 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.\u2019 \u201d\nId. (citing Watkins v. City of Wilmington, 290 N.C. 276, 281, 225 S.E.2d 577, 581 (1976), and quoting Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 252, 293 S.E.2d 196, 199 (1982)) (emphasis added).\nIn the instant case, the Industrial Commission\u2019s findings of fact included, in relevant part, the following:\n2. In August 1994, plaintiff became employed with defendant-employer as an in-home caregiver[.] ... As a caregiver, plaintiff had a variety of job duties relating to the care of clients[.] . . . Plaintiff also was required to make meals for clients for breakfast, lunch and dinner as well as snacks, perform household chores such as cleaning and laundering, as well as transporting the client and grocery shopping if requested.\n4. While working for defendant-employer plaintiff was assigned as a caregiver in the home of Ms. Nancy Withers.\n5. On July 26, 1999, after assisting Ms. Withers out of bed and preparing her breakfast, plaintiff took Ms. Withers\u2019 dog outside and, while outside in the yard, plaintiff decided to pick a pear from the pear tree for herself and Ms. Withers. Plaintiff climbed into the tree to retrieve a pear and, as she was coming down, she fell from the tree.\n7. Plaintiff regularly served fruit to Ms. Withers as a part of her job.\n8. As an employee for defendant-employer, plaintiff was to provide services pursuant to . . . [a] plan of care which . . . authorized plaintiff to fix meals for Ms. Withers and to go grocery shopping.\n9. . . . Plaintiffs activities in obtaining and preparing food for Ms. Withers [were] in the course and scope of her employment with defendant-employer. . . . The taking of the pear was thereby consistent with plaintiffs duties to acquire and prepare food for Ms. Withers. . . .\nUnder N.C.G.S. \u00a7 97-86 (2001), an appeal from an opinion and award of the Industrial Commission is taken \u201cunder the same terms and conditions as govern appeals from the superior court to the Court of Appeals in ordinary civil actions[, and the] procedure for the appeal shall be as provided by the rules of appellate procedure.\u201d N.C.R. App. R 10(a) provides that \u201cthe scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal.\u201d Because defendants do not assign as error any of the Industrial Commission\u2019s findings of fact, they are \u201cconclusively established on appeal.\u201d Johnson v. Herbie\u2019s Place, 157 N.C. App. 168, 180, 579 S.E.2d 110, 118 (2003) (citing Okwara v. Dillard Dep\u2019t Stores, Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000)).\nWe next determine whether the Industrial Commission correctly applied the law to these facts when it reached the following conclusion: \u201cOn July 26, 1999, plaintiff sustained a compensable injury by accident arising out of and in the course of her employment with defendant-employer when she fell from a pear tree while picking a pear for the consumption of her employer\u2019s patient.\u201d\nDefendants argue that plaintiffs injury is not compensable. They contend that, because plaintiff was not authorized to climb a tree in order to obtain a pear for Ms. Withers, plaintiff\u2019s injury did not result from \u201ca risk which might have been contemplated by a reasonable person familiar with the whole situation as incidental to the service when he entered the employment.\u201d Bartlett v. Duke University, 284 N.C. 230, 233, 200 S.E.2d 193, 195 (1973) (denying compensation to claimant who aspirated food while dining out during a business trip). Defendants frame the issue of compensability primarily in terms of whether plaintiff was authorized to obtain a pear by climbing a tree, which defendants term \u201cthe critical issue[] in this case[.]\u201d\nHowever, a review of relevant appellate law indicates that a plaintiff\u2019s entitlement to workers\u2019 compensation generally is not defeated by his negligence, or by evidence that at the time of injury the plaintiff was engaged in a foolish, even forbidden, activity:\nThe Workers\u2019 Compensation Act is a compromise. . . . Nothing in it supports the notion that it was enacted just for the protection of careful, prudent employees, or that employees that do not stick strictly to their business are beyond its protection.. .. [I]t is not required that the employment be the sole proximate cause of the injury, it being enough that \u2018any reasonable relationship to the employment exists, or employment is a contributory cause.\u2019\nBare v. Wayne Poultry Co., 70 N.C. App. 88, 92, 318 S.E.2d 534, 538 (1984) (plaintiff suffers compensable injury \u201cparticipating in horseplay\u201d with deboning knife) (quoting Allred v. Allred-Gardner, Inc., 253 N.C. 554, 557, 117 S.E.2d 476, 479 (1960)), disc. review denied, 312 N.C. 796, 325 S.E.2d 484 (1985). See also, e.g., the following cases allowing compensation: Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248, 259, 293 S.E.2d 196, 202 (1982) (compensation not barred by actions that violate employer\u2019s rules unless undertaken in \u201cdisobedience of a direct and specific order by a then present superior\u201d); Watkins v. City of Wilmington, 290 N.C. 276, 283, 225 S.E.2d 577, 582 (1976) (injury compensable if \u201ccompetent proof exists that the employee understood, or had reasonable grounds to believe that the act resulting in injury was incidental to his employment\u201d) (citation omitted); Stubblefield v. Construction Co., 277 N.C. 444, 445, 177 S.E.2d 882, 183 (1970) (plaintiff suffered fatal accident while idly knocking dust and debris from conveyor rollers, actions which \u201chad no \"relation to his duties\u201d); Choate v. Sara Lee Products, 133 N.C. App. 14, 514 S.E.2d 529, (1999) (plaintiff injured in parking lot after she left production line in violation of company rules); Spratt v. Duke Power Co., 65 N.C. App. 457, 310 S.E.2d 38 (1983) (claimant injured while running to vending machine in violation of company rules); Patterson v. Gaston Co., 62 N.C. App. 544, 547, 303 S.E.2d 182, 184 (\u201c[N]egligence [does] not necessarily bar the award of compensation].]\u201d), disc. review denied, 309 N.C. 822, 310 S.E.2d 351 (1983). As explained by this Court:\nAn appellate court is . . . justified in upholding a compensation award if the accident is \u2018fairly traceable to the employment as a contributing cause\u2019 or if \u2018any reasonable relationship to employment exists.\u2019... [C]ompensability of a claim basically turns upon whether or not the employee was acting for the benefit of his employer \u2018to any appreciable extent\u2019 when the accident occurred ... in close cases, the benefit of the doubt concerning this issue should be given to the employee in accordance with the established policy of liberal construction and application of the Workers\u2019 Compensation Act.\nMcBride v. Peony Corp., 84 N.C. App. 221, 226-27, 352 S.E.2d 236, 240 (1987) (emphasis added) (quoting Kiger v. Service Co., 260 N.C. 760, 762, 133 S.E.2d 702, 704 (1963), and Guest v. Iron & Metal Co., 241 N.C. 448, 452, 85 S.E.2d 596, 600 (1955)).\nWe conclude that the Industrial Commission\u2019s findings of fact easily establish that plaintiff\u2019s accident arose \u201cin the course of\u2019 her employment. We further conclude that these findings of fact sufficiently support its conclusion that plaintiff\u2019s injury arose \u201cout of\u2019 her employment. We note that the Commission\u2019s findings specifically state that plaintiff (1) \u201cwas required to make meals ... as well as snacks\u201d; (2) \u201cregularly served fruit to Ms. Withers as a part of her job\u201d; (3) \u201ctook Ms. Withers\u2019 dog outside and ... decided to pick apear . . . for herself and Ms. Withers\u201d; and (4) that plaintiff\u2019s \u201cactivities in obtaining . . . food for Ms. Withers [were] in the course and scope of her employment with defendant-employer.\u201d\nDefendants\u2019 arguments are not without force. However, bearing in mind that we are bound by the Industrial Commission\u2019s findings of fact, we are constrained to conclude that plaintiff suffered a com-pensable injury. Accordingly, the opinion and award of the Industrial Commission is\nAffirmed.\nChief Judge EAGLES and Judge BRYANT concur.", "type": "majority", "author": "LEVINSON, Judge." } ], "attorneys": [ "Doran, Shelby, Pethel and Hudson, P.A., by David A. Shelby, for plaintiff-appellee.", "Morris York Williams Surles & Barringer, L.L.P, by Susan H. Briggs and Keith B. Nichols, for defendant-appellants." ], "corrections": "", "head_matter": "ALICE Y. McGRADY, Employee, Plaintiff v. OLSTEN CORP., Employer, and HARTFORD SPECIALTY RISK, Carrier, Defendants, Defendant-Appellants\nNo. COA02-1035\n(Filed 5 August 2003)\nWorkers\u2019 Compensation\u2014 course of employment \u2014 fall from pear tree\nA workers\u2019 compensation plaintiff suffered a compensable injury when she fell from a pear tree while working as a certified nursing assistant providing in-home care. The Industrial Commission\u2019s findings were binding on appeal because defendants did not assign error to those findings, and those finding specifically state that plaintiff was required to make meals and snacks, that she regularly served fruit to her patient as a part of her job, that plaintiff decided to pick a pear for herself and her patient, and that her activities were in the course and scope of her employment. Those findings sufficiently support the conclusion that plaintiffs injury arose out of her employment. Generally, a plaintiffs negligence or foolish activity does not defeat entitlement to workers\u2019 compensation.\nAppeal by defendants from opinion and award entered 18 April 2002 by the Industrial Commission. Heard in the Court of Appeals 19 May 2003.\nDoran, Shelby, Pethel and Hudson, P.A., by David A. Shelby, for plaintiff-appellee.\nMorris York Williams Surles & Barringer, L.L.P, by Susan H. Briggs and Keith B. Nichols, for defendant-appellants." }, "file_name": "0643-01", "first_page_order": 673, "last_page_order": 680 }