{ "id": 8959480, "name": "JOSEPH B. DUNN, Employee, Plaintiff v. MARCONI COMMUNICATIONS, INC., Employer, ACE USA, Carrier, Defendants", "name_abbreviation": "Dunn v. Marconi Communications, Inc.", "decision_date": "2003-12-16", "docket_number": "No. COA03-129", "first_page": "606", "last_page": "615", "citations": [ { "type": "official", "cite": "161 N.C. App. 606" } ], "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": "509 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "486 S.E.2d 208", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 180", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139373, 139471, 139543, 139546, 139582 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0180-02", "/nc/346/0180-01", "/nc/346/0180-04", "/nc/346/0180-05", "/nc/346/0180-03" ] }, { "cite": "478 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "226" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 637", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11890320 ], "year": 1996, "pin_cites": [ { "page": "641" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0637-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "413" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "296 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560803 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0121-01" ] }, { "cite": "291 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "161" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521779 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0033-01" ] }, { "cite": "349 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732777, 4738513, 4738804, 4734109, 4737790 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0417-02", "/nc/318/0417-01", "/nc/318/0417-03", "/nc/318/0417-04", "/nc/318/0417-05" ] }, { "cite": "343 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "81 N.C. App. 140", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521831 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/81/0140-01" ] }, { "cite": "97 S.E.2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "pin_cites": [ { "page": "871" } ], "opinion_index": 0 }, { "cite": "246 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625636 ], "year": 1957, "pin_cites": [ { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/nc/246/0214-01" ] }, { "cite": "239 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "244" } ], "opinion_index": 0 }, { "cite": "293 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567203 ], "year": 1977, "pin_cites": [ { "page": "733" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0731-01" ] }, { "cite": "322 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "71 N.C. App. 532", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525856 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/71/0532-01" ] }, { "cite": "287 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567713 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0292-01" ] }, { "cite": "123 S.E.2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "611" } ], "opinion_index": 0 }, { "cite": "256 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571678 ], "year": 1962, "pin_cites": [ { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0175-01" ] }, { "cite": "281 S.E.2d 718", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "720", "parenthetical": "quoting Brewer v. Trucking Co., 256 N.C. 175, 179, 123 S.E.2d 608, 611 (1962)" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 766", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523603 ], "year": 1981, "pin_cites": [ { "page": "768", "parenthetical": "quoting Brewer v. Trucking Co., 256 N.C. 175, 179, 123 S.E.2d 608, 611 (1962)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0766-01" ] }, { "cite": "532 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "212", "parenthetical": "internal citations omitted" }, { "page": "213" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 593", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080920 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "601", "parenthetical": "internal citations omitted" }, { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0593-01" ] }, { "cite": "486 S.E.2d 478", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "126 N.C. App. 547", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712005 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc-app/126/0547-01" ] }, { "cite": "572 S.E.2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 436", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511425, 1511469, 1511153, 1511506, 1511576 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0436-01", "/nc/356/0436-05", "/nc/356/0436-02", "/nc/356/0436-03", "/nc/356/0436-04" ] }, { "cite": "569 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "153 N.C. App. 266", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249421 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/153/0266-01" ] }, { "cite": "110 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "251 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622288 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/251/0047-01" ] }, { "cite": "295 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "475", "parenthetical": "citing Humphrey v. Laundry, 251 N.C. 47, 110 S.E.2d 467 (1959)" } ], "opinion_index": 0 }, { "cite": "306 N.C. 728", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573682 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "730-31", "parenthetical": "citing Humphrey v. Laundry, 251 N.C. 47, 110 S.E.2d 467 (1959)" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0728-01" ] }, { "cite": "560 S.E.2d 796", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219969, 220200, 219983, 219888, 220082 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0283-03", "/nc/355/0283-02", "/nc/355/0283-05", "/nc/355/0283-04", "/nc/355/0283-01" ] }, { "cite": "485 S.E.2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 751", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54001, 53908, 53845, 53911, 53913 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0751-03", "/nc/345/0751-04", "/nc/345/0751-01", "/nc/345/0751-02", "/nc/345/0751-05" ] }, { "cite": "477 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "679" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 526", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11890015 ], "year": 1996, "pin_cites": [ { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0526-01" ] }, { "cite": "555 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "621", "parenthetical": "quoting Cauble v. Soft-Play, Inc., 124 N.C. App. 526, 528, 477 S.E.2d 678, 679 (1996), disc. rev. denied, 345 N.C. 751, 485 S.E.2d 49 (1997)" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 308", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9379457 ], "year": 2001, "pin_cites": [ { "page": "311", "parenthetical": "quoting Cauble v. Soft-Play, Inc., 124 N.C. App. 526, 528, 477 S.E.2d 678, 679 (1996), disc. rev. denied, 345 N.C. 751, 485 S.E.2d 49 (1997)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0308-01" ] }, { "cite": "530 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "553" } ], "opinion_index": 0 }, { "cite": "352 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684964 ], "year": 2000, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0109-01" ] } ], "analysis": { "cardinality": 959, "char_count": 21721, "ocr_confidence": 0.77, "pagerank": { "raw": 1.4842460973255977e-07, "percentile": 0.6617457233993179 }, "sha256": "4c75042273c4f025b57a35624e7e8f10f1334209ace9529120efe93296d6a1ba", "simhash": "1:61a1c88a1639007f", "word_count": 3459 }, "last_updated": "2023-07-14T20:10:07.642184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and LEVINSON concur." ], "parties": [ "JOSEPH B. DUNN, Employee, Plaintiff v. MARCONI COMMUNICATIONS, INC., Employer, ACE USA, Carrier, Defendants" ], "opinions": [ { "text": "EAGLES, Chief Judge.\nPlaintiff Joseph B. Dunn appeals from an opinion and award of the full Industrial Commission denying workers\u2019 compensation benefits. Plaintiff asserts two arguments on appeal: that the Industrial Commission erred (1) by failing to apply the appropriate law to determine the compensability of plaintiff\u2019s claim and (2) by deferring to the deputy commissioner\u2019s judgment regarding the credibility of witnesses. After careful review of the transcript, exhibits, record and briefs, we affirm.\nThe evidence presented to the Commission tended to show that plaintiff was injured in an automobile accident on 14 April 2000. At the time of the accident, plaintiff was returning from his home in Maysville, North Carolina, to a job site located in Richmond, Virginia.\nPlaintiff began working for defendant Marconi Communications, Inc. (\u201cMarconi\u201d) in 1997. In 2000, plaintiff worked as a \u201clead man\u201d for Marconi. As a lead man, plaintiff\u2019s job responsibilities consisted of supervising the installation of telephone equipment by teams of workers and maintaining the stock of materials necessary for the project. Plaintiff traveled frequently as part of his job. He testified that he had previously completed projects for Marconi in Oklahoma City, Oklahoma; Roswell, New Mexico; Dallas, Texas; Chattanooga, Tennessee; and Detroit, Michigan.\nMarconi provided plaintiff a company van to drive and a company credit card in order to pay for gasoline for the van. Plaintiff was paid for any time he spent traveling between job sites. During weekends or between jobs, plaintiff would drive the company van to his home and then drive the van to the next job site.\nPlaintiff used a pager that was turned on at all times. Plaintiff\u2019s supervisors contacted plaintiff using this pager in order to tell plaintiff the location of his next job site. Plaintiff testified that he called the company headquarters every week to inform the payroll clerk where to deliver his paycheck. The payroll clerk would then send plaintiff\u2019s paycheck to his location, using an express mail service if necessary.\nPlaintiff was assigned to the project site in Richmond, Virginia, in late March or early April 2000. Marconi was hired to install telephone cable and equipment in the Bell Atlantic building. By 14 April 2000, the Marconi team was running behind schedule on the project. The team had begun the Richmond project later than expected and the project was further delayed by sabotage. Plaintiff testified that his immediate supervisor, Steve Wade, pressured the installation team and constantly asked plaintiff how much longer it would take to finish the project.\nThe Marconi crew working at the Bell Atlantic site was using a hydraulic crimper, a tool which is used to tighten cables during installation. When plaintiff worked the 8 p.m. shift on 13 April, he observed that the crew only had one hydraulic crimper in use. Plaintiff had an additional manual crimper, owned by Marconi, at his home in Maysville. Manual crimpers are used for the installation of smaller cables, while hydraulic crimpers are needed for larger cables.\nPlaintiff decided to retrieve the crimper from Maysville in order to complete the project more quickly. At 8 a.m. on 14 April, a few hours after he got off work, plaintiff began the drive to Maysville. Plaintiff did not tell any of his co-workers that he was traveling home or that he was going to retrieve the additional crimper. Plaintiff\u2019s fianc\u00e9e Sherry accompanied him on the trip to Maysville. Plaintiff estimated that it would take him four hours to drive from Richmond to Maysville.\nPlaintiff and his fianc\u00e9e arrived at plaintiff\u2019s home in Maysville around noon. Plaintiff retrieved the crimper from his house. He checked his mailbox but his paycheck had not yet arrived.\nPlaintiff began to drive back to Richmond with his fianc\u00e9e. He was scheduled to be at work at the Richmond project site at 8:00 p.m. that evening. Plaintiff was injured in an accident during the trip back to Richmond at approximately 5:15 p.m. The accident occurred about forty miles away from the job site. Plaintiff fell asleep while driving on Interstate 95 and ran off the highway. When the van left the highway, it flipped several times and plaintiff was thrown from the van. Plaintiff had not slept or taken a nap since before he reported to work the previous evening at 8:00 p.m., meaning that plaintiff had been awake for at least 21 hours at the time of the accident. Plaintiff sustained a concussion, a scalp laceration, several broken ribs, a collapsed lung, a bruised heart, and a compound fracture of his ankle as a result of the accident.\nDefendants denied compensability of plaintiff\u2019s claim, based upon defendants\u2019 decision that plaintiff\u2019s accident did not arise out of the course and scope of his employment. Plaintiff\u2019s claim was then presented to the deputy commissioner on 26 January 2001. Defendants introduced testimony that tended to show that plaintiff did not have a legitimate business reason for driving to his home in Maysville. Marconi\u2019s human resources manager testified that, at the time of the accident, plaintiff had requested his paycheck be directly deposited in his bank account, so there was no reason for plaintiff to expect his paycheck to be delivered to his home. Plaintiff testified that he had signed up for the direct deposit program but then can-celled his participation in it. Plaintiff was unable to remember when he cancelled direct deposit of his paycheck.\nIn addition, plaintiff stated on cross-examination that he knew another employee at the Richmond work site had an extra crimper which was the same type of tool that he retrieved from his home in Maysville. However, plaintiff admitted that he did not ask the other employee if he could use the \u201cextra\u201d crimper before he decided to drive to Maysville. Plaintiff also testified that he did not investigate the Richmond area to determine whether there was a store in Richmond where he could buy an extra crimper. Plaintiff\u2019s supervisor testified that all employees were instructed on the procedure for getting tools locally if needed for the job site. Employees were instructed to buy tools at stores near the job site or to have tools shipped in by an express service from Marconi\u2019s headquarters. In addition, the supervisor stated that company policy forbids employees from keeping tools at home, as plaintiff claimed to have done. The supervisor further testified that having an extra crimper on the Richmond job site would not have hastened the completion of the project. There were not enough workers on site to operate another hydraulic crimper, and the manual crimper only fit small cables.\nThe deputy commissioner and full Commission both denied plaintiff\u2019s claim for workers\u2019 compensation benefits. The Commission denied plaintiff\u2019s claim because it found that plaintiff\u2019s stated reasons for traveling to Maysville were not credible. Plaintiff appeals.\nIt is well-settled that \u201cappellate courts reviewing Commission decisions are limited to reviewing whether any competent evidence supports the Commission\u2019s findings of fact and whether the findings of fact support the Commission\u2019s conclusions of law.\u201d Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). However, the Commission\u2019s decision regarding whether \u201can accident arose out of and in the course of employment is a mixed question of law and fact; thus, this Court may review the record to determine if the findings and conclusions are supported by sufficient evidence.\u201d Bowser v. N.C. Dep\u2019t. of Corr., 147 N.C. App. 308, 311, 555 S.E.2d 618, 621 (2001) (quoting Cauble v. Soft-Play, Inc., 124 N.C. App. 526, 528, 477 S.E.2d 678, 679 (1996), disc. rev. denied, 345 N.C. 751, 485 S.E.2d 49 (1997)), disc. rev. denied, 355 N.C. 283, 560 S.E.2d 796 (2002).\nG.S. \u00a7 97-2 (6) defines \u201cinjury\u201d under the Workers\u2019 Compensation Act to refer to \u201cinjury by accident arising out of and in the course of the employment . . . .\u201d The \u201ccoming and going rule,\u201d which is the \u201cgeneral rule in this and other jurisdictions,\u201d states \u201cthat an injury by accident occurring en route from the employee\u2019s residence to his workplace or during the journey home is not one that arises out of or in the course of employment.\u201d Powers v. Lady\u2019s Funeral Home, 306 N.C. 728, 730-31, 295 S.E.2d 473, 475 (1982) (citing Humphrey v. Laundry, 251 N.C. 47, 110 S.E.2d 467 (1959)). However, the general rale barring compensability of injuries sustained while traveling to or from work is subject to several exceptions, including inter alia, the \u201ctraveling salesman\u201d exception, the \u201ccontractual duty\u201d exception, the \u201cspecial errand\u201d exception, and the \u201cdual purpose\u201d exception. See Powers, 306 N.C. 728, 295 S.E.2d 473 (1982); Hunt v. Tender Loving Care Home Care Agency, Inc., 153 N.C. App. 266, 569 S.E.2d 675, disc. rev. denied, 356 N.C. 436, 572 S.E.2d 784 (2002); Creel v. Town of Dover, 126 N.C. App. 547, 486 S.E.2d 478 (1997).\nPlaintiff argues that the full Commission erred by omitting several factual findings that, if found, would have provided sufficient evidence to allow plaintiff to recover under various exceptions to the \u201ccoming and going\u201d rule. Plaintiff contends that the Commission\u2019s failure to find these facts indicates that the Commission misapprehended the law and failed to apply the proper standard when it denied workers\u2019 compensation benefits. We disagree.\nAs a preliminary matter, we note that this Court has held that when the Commission determines \u201cthe credibility of the witnesses and the evidence and the weight each is to receive,\u201d the Commission \u201cmay not wholly disregard or ignore the competent evidence before it.\u201d Peagler v. Tyson Foods, Inc., 138 N.C. App. 593, 601, 532 S.E.2d 207, 212 (2000) (internal citations omitted). \u201c[T]he Commission is not required to find facts as to all credible evidence.\u201d Peagler, 138 N.C. App. at 602, 532 S.E.2d at 213. Therefore, merely because plaintiff presented credible evidence, the Commission was not required to make findings of fact regarding that evidence.\nHere, plaintiff contends that the Commission failed to make a finding that plaintiff was on permanent \u201con call\u201d status despite uncontroverted evidence that plaintiff carried a pager twenty-four hours each day. Plaintiff argues that such a finding would have allowed plaintiff to argue that his injury fell under the \u201ctraveling salesman\u201d exception to the \u201ccoming and going\u201d rule. The Commission also omitted any factual finding about defendant employer\u2019s furnishing of a company vehicle for plaintiff\u2019s use, which would have enabled plaintiff to argue that his injuries were compensable according to the \u201ccontractual duty\u201d exception. In addition, plaintiff contests the lack of factual findings indicating that plaintiff had decision-making authority regarding where to get work materials for the job site, that plaintiff\u2019s purpose in traveling to Maysville was to retrieve the crimper, and that plaintiff\u2019s return trip assumed a business purpose because he was returning to work when the accident occurred. Any of these findings of fact would have allowed plaintiff to argue that either the \u201cspecial errand\u201d or \u201cdual purpose\u201d exception applied. Although plaintiff presented evidence that would tend to support these proposed factual findings and therefore allow plaintiff to make these arguments regarding compensability, we hold that the absence of these proposed findings is not error here. The Commission\u2019s finding of fact that plaintiffs evidence about the purpose of his trip to Maysville was \u201cnot believable\u201d eliminates all support for the exceptions to the \u201cgoing and coming\u201d rule that plaintiff argues were present in this matter.\nThe \u201ctraveling salesman\u201d exception to the \u201cgoing and coming\u201d rule has been defined as follows: \u201c[EJmployees whose work entails travel away from the employer\u2019s premises are held ... to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown.\u201d Chandler v. Teer Co., 53 N.C. App. 766, 768, 281 S.E.2d 718, 720 (1981) (quoting Brewer v. Trucking Co., 256 N.C. 175, 179, 123 S.E.2d 608, 611 (1962)), aff'd per curiam, 305 N.C. 292, 287 S.E.2d 890 (1982); see also Ross v. Young Supply Co., 71 N.C. App. 532, 322 S.E.2d 648 (1984). The \u201ccontractual duty\u201d exception states that \u201c[i]njuries received by an employee while traveling to or from his place of employment are usually not covered by the Act unless the employer furnishes the means of transportation as an incident of the contract of employment.\u201d Strickland v. King and Sellers v. King, 293 N.C. 731, 733, 239 S.E.2d 243, 244 (1977). However, the \u201ccontractual duty\u201d exception can be negated if the Commission finds that the employee, while using an employer-provided vehicle, abandoned his employment-related purpose for using the vehicle. See Alford v. Chevrolet Co., 246 N.C. 214, 217, 97 S.E.2d 869, 871 (1957). The \u201cspecial errand\u201d exception allows an employee to recover for injuries sustained while traveling to or from work if the injuries occur while the employee is engaged in a special duty or errand for his employer. See Schmoyer v. Church of Jesus Christ of Latter Day Saints, 81 N.C. App. 140, 343 S.E.2d 551, disc. rev. denied, 318 N.C. 417, 349 S.E.2d 600 (1986); Felton v. Hospital Guild, 57 N.C. App. 33, 291 S.E.2d 158, affd by an equally divided court, 307 N.C. 121, 296 S.E.2d 297 (1982). The \u201cdual purpose\u201d exception is defined as follows:\n[W]hen a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the business purpose and would have been dropped in the event of failure of the private purpose, though the business errand remained undone; it is a business trip if a trip of this kind would have been made in spite of the failure or absence of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the employee\u2019s personal journey.\nFelton, 57 N.C. App. at 37, 291 S.E.2d at 161 (quoting 1 Arthur Larson, The Law of Workmen\u2019s Compensation \u00a7 18.12 (1978)).\nAll of the exceptions relied upon by plaintiff can be eliminated from consideration based upon a finding that plaintiff was on a personal errand at the time of his accident and that the trip did not serve a dual business purpose. Here, the Commission found that:\nThe greater weight of the competent evidence fails to support plaintiff\u2019s testimony that the purpose of his April 14, 2000 trip to Maysville, North Carolina with an anticipated return to Richmond, Virginia by 8:00 p.m. to work his next shift was to either pick up a manual crimper for the benefit of his employer or to pick up his paycheck.\nThis finding was sufficient to indicate that the Commission rejected the evidence offered to show that plaintiff had a business-related reason for his trip to Maysville. The \u201cdual purpose\u201d rule cannot apply to plaintiff\u2019s claim because no legitimate business purpose existed according to the Commission\u2019s factual finding.\nThe Commission\u2019s holding that plaintiff\u2019s accident did not occur within the course and scope of his employment is a mixed question of law and fact. Therefore, we must analyze whether sufficient evidence supports the Commission\u2019s findings of fact. Here, plaintiff offered two reasons for the trip to Maysville: (1) the necessity of getting a manual crimper and (2) the retrieval of his paycheck. Defendants responded by offering evidence that tended to show that plaintiff knew that neither of these goals required him to make an eight-hour round trip journey. Defendants presented evidence that plaintiff\u2019s paychecks were being electronically deposited into his bank account, meaning that plaintiff did not need to drive home in order to retrieve his paycheck. In addition, defendants and plaintiff presented evidence that tended to show that Marconi would send an employee\u2019s paycheck to him on a job site by an express delivery service if requested by the employee. Defendants also presented evidence that Marconi had a company policy of shipping in necessary tools or buying tools locally and that plaintiff knew of this policy. In addition, plaintiff knew that a co-worker at the same job site had the exact tool that plaintiff thought was needed. Plaintiff did not ask his coworker for the tool, nor did he tell anyone where he was going when he left Richmond. Finally, defendants presented evidence that indicated the additional tool that plaintiff allegedly traveled home to get was not needed on the Richmond job site. Sufficient evidence supports the Commission\u2019s conclusion that plaintiff\u2019s stated reasons for returning home were not credible. Therefore, this assignment of error is overruled.\nPlaintiff\u2019s second argument is that the full Commission improperly deferred to the deputy commissioner\u2019s credibility determinations. Plaintiff contends that the full Commission may not rely on the deputy commissioner\u2019s findings at all, because the full Commission is the sole judge of credibility. We disagree.\nThe finding of fact that plaintiff disputes on appeal reads as follows, in pertinent part:\nIn light of the fact that the Deputy Commissioner had the opportunity to view the witnesses and make reasonable inferences therefrom from their conduct and having considering [sic] all competent evidence of record, the Full Commission concludes that plaintiff traveled home for some unknown personal reason.\nWe note that the Commission\u2019s finding of fact states that the Commission reached its decision after reviewing all competent evidence of record. Plaintiff argues that the Commission cannot rely upon the credibility determinations of the deputy commissioner according to Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998). The Adams case stated:\nWhether the full Commission conducts a hearing or reviews . a cold record, N.C.G.S. \u00a7 97-85 places the ultimate fact-finding function with the Commission \u2014 not the hearing officer. It is the Commission that ultimately determines credibility, whether from a cold record or from live testimony. Consequently, in reversing the deputy commissioner\u2019s credibility findings, the full Commission is not required to demonstrate, as Sanders states, \u201cthat sufficient consideration was paid to the fact that credibility may be best judged by a first-hand observer of the witness when that observation was the only one.\u201d\nAdams, 349 N.C. at 681, 509 S.E.2d at 413 (quoting Sanders v. Broyhill Furniture Industries, 124 N.C. App. 637, 641, 478 S.E.2d 223, 226 (1996), disc. rev. denied, 346 N.C. 180, 486 S.E.2d 208 (1997), overruled by Adams, 349 N.C. 676, 509 S.E.2d 413 (1998)). Adams clearly holds that the full Commission is not required to defer to the deputy commissioner\u2019s credibility determinations simply because the deputy commissioner viewed the testimony or other evidence firsthand. However, Adams does not hold, as plaintiff argues here, that the full Commission may not consider the deputy Commissioner\u2019s findings.\nAssuming arguendo that Adams does forbid the full Commission from giving any consideration to the deputy commissioner\u2019s credibility determinations, the Commission here did not commit reversible error. The Commission stated that it considered all the evidence and made factual findings different from the findings of the deputy commissioner, as noted in plaintiff\u2019s first argument on appeal. Because the full Commission did not rely solely upon the deputy commissioner\u2019s credibility determination, we overrule this assignment of error.\nFor the reasons stated above, the Industrial Commission\u2019s opinion and award is affirmed.\nAffirmed.\nJudges MARTIN and LEVINSON concur.", "type": "majority", "author": "EAGLES, Chief Judge." } ], "attorneys": [ "The Jemigan Law Firm, by Leonard T. Jemigan, Jr., N. Victor Farah and Lauren R. Tmstman, for plaintiff-appellant.", "Teague, Campbell, Dennis & Gorham, L.L.P., by Dayle A. Flammia, for defendant-appellees." ], "corrections": "", "head_matter": "JOSEPH B. DUNN, Employee, Plaintiff v. MARCONI COMMUNICATIONS, INC., Employer, ACE USA, Carrier, Defendants\nNo. COA03-129\n(Filed 16 December 2003)\n1. Workers\u2019 Compensation\u2014 coming and going rule \u2014 exceptions\nThe Industrial Commission did not err by allegedly failing to apply the proper standard when it denied workers\u2019 compensation benefits based on its omitting several factual findings that, if found, would have provided sufficient evidence to allow plaintiff worker to recover under various exceptions to the coming and going rule, because: (1) the Commission\u2019s finding of fact that plaintiffs evidence about the purpose of his trip to his home was not believable eliminated all support for the exceptions to the going and coming rule that plaintiff argued were present in this matter; and (2) all of the exceptions relied upon by plaintiff can be eliminated from consideration based upon the Commission\u2019s finding that plaintiff was on a personal errand at the time of his accident and that the trip did not serve a dual business purpose.\n2. Workers\u2019 Compensation\u2014 credibility of witnesses\u2014 reliance on deputy commissioner\u2019s determination\nThe Industrial Commission did not err in a workers\u2019 compensation case by deferring to the deputy commissioner\u2019s judgment regarding the credibility of witnesses, because: (1) the Commission\u2019s finding of fact stated that the Commission reached its decision after reviewing all competent evidence of record; and (2) the full Commission did not rely solely upon the deputy commissioner\u2019s credibility determination.\nAppeal by plaintiff from opinion and award entered 16 September 2002 by the North Carolina Industrial Commission. Heard in the Court of Appeals 17 November 2003.\nThe Jemigan Law Firm, by Leonard T. Jemigan, Jr., N. Victor Farah and Lauren R. Tmstman, for plaintiff-appellant.\nTeague, Campbell, Dennis & Gorham, L.L.P., by Dayle A. Flammia, for defendant-appellees." }, "file_name": "0606-01", "first_page_order": 636, "last_page_order": 645 }