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  "name": "JOANNE MUNOZ, Employee, Plaintiff v. CALDWELL MEMORIAL HOSPITAL, Employer, and ALLIED CLAIMS ADMINISTRATION, Carrier, Defendants",
  "name_abbreviation": "Munoz v. Caldwell Memorial Hospital",
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    "judges": [
      "Judges McCULLOUGH and STEELMAN concur."
    ],
    "parties": [
      "JOANNE MUNOZ, Employee, Plaintiff v. CALDWELL MEMORIAL HOSPITAL, Employer, and ALLIED CLAIMS ADMINISTRATION, Carrier, Defendants"
    ],
    "opinions": [
      {
        "text": "TIMMONS-GOODSON, Judge.\nCaldwell Memorial Hospital (\u201cCaldwell\u201d) and Allied Claims Administration (\u201cAllied\u201d) (collectively, \u201cdefendants\u201d) appeal an opinion and award of the North Carolina Industrial Commission awarding Joanne Munoz (\u201cplaintiff\u2019) compensation for injuries resulting from an automobile collision. For the reasons discussed herein, we affirm the opinion and award.\nThe facts and procedural history pertinent to the instant appeal are as follows: On 5 January 2001, plaintiff began work for Caldwell as a home health care nurse. Plaintiffs position with Caldwell required her to travel each day to an assigned patient\u2019s residence to provide care for the patient. Plaintiff provided care for only one patient per day, and her hourly wages began when she reached the patient\u2019s home. As part of plaintiff\u2019s compensation, Caldwell paid plaintiff excess travel mileage if her patient\u2019s residence was more than sixty miles round trip from her own residence.\nOn 8 January 2001, plaintiff was assigned to care for a patient in Lenoir, North Carolina. While on her way to the patient\u2019s residence, plaintiff decided to drop off her time slips at Caldwell\u2019s office, which was also located in Lenoir. As plaintiff drove to Caldwell\u2019s office, she was involved in an automobile collision and suffered injuries to her head and back. Caldwell denied plaintiff\u2019s subsequent worker\u2019s compensation claim, contending that the collision did not arise out of and in the course of plaintiff\u2019s employment at Caldwell.\nOn 6 November 2002, the case was heard by North Carolina Industrial Commission Deputy Commissioner Edward Gamer, Jr. (\u201cthe Deputy Commissioner\u201d). On 10 March 2003, the Deputy Commissioner entered an opinion and award concluding that plaintiff\u2019s injuries arose out of and in the course of her employment at Caldwell. Based upon this conclusion, the Deputy Commissioner awarded plaintiff $271.46 per week in compensation.\nDefendants appealed the Deputy Commissioner\u2019s award to a full panel of the North Carolina Industrial Commission (\u201cthe Full Commission\u201d). On 28 June 2004, the Full Commission entered an opinion and award affirming the Deputy Commissioner\u2019s prior award. The Full Commission made the following pertinent conclusions of law:\n5. In this case, the \u201ctraveling salesman\u201d exception applies because plaintiff was injured while en route to visit a patient pursuant to a job with no fixed hours or place of work. Plaintiff\u2019s job required that she report directly from her home to the patient\u2019s home for which she would be caring each day rather than beginning her day at her employer\u2019s fixed place of business. Plaintiff\u2019s job required that she visit with only one patient per day, but during the four days that plaintiff had been employed, she had visited three different patients at three different residences, and worked varying hours each day. . . . [U]nder these circumstances, the \u201ctraveling salesman\u201d exception would apply to each day upon leaving her house to travel to her patient\u2019s home because plaintiff did not have a fixed work place or fixed work hours.\n6. Plaintiff\u2019s employment was of a nature that failed to establish a fixed work place or fixed work hours, and plaintiff\u2019s mere intention to drop her pay slips off while traveling the route to her patient\u2019s home that would take her by her employer\u2019s place of business on January 8, 2001, did not constitute a \u201cdistinct\u201d and \u201ctotal\u201d departure on a personal errand. Accordingly, the traumatic brain injury and other injuries resulting from plaintiff\u2019s automobile accident on January 8, 2001, are compensable as they arose out of and in the course of her employment pursuant to the \u201ctraveling salesman\u201d exception to the \u201cgoing and coming\u201d rule.\n8. Plaintiff\u2019s injuries sustained while traveling to work on January 8, 2001, are compensable pursuant to the \u201ccontractual duty\u201d exception because [Caldwell] was under an active contractual duty to reimburse plaintiff for her mileage at the time of her automobile collision. Pursuant to this mileage plan, plaintiff was paid mileage for the amount of miles she was required to travel in excess of 60 miles roundtrip to a single patient\u2019s home. Thus, the \u201ccontractual duty\u201d exception would apply to a home health care nurse visiting a single patient over the course of a day at the time that nurse traveled beyond a 30-mile radius of her listed home address.\n9. Plaintiff\u2019s mere intent to drop her pay slip off, as required, while traveling the route to her patient\u2019s home that would take her by her employer\u2019s place of business does not constitute a \u201cdistinct\u201d or \u201ctotal\u201d departure on a personal errand.\nBased upon these conclusions of law, the Full Commission awarded plaintiff $271.46 per week in compensation. Defendants appeal.\nThe issues on appeal are whether the Full Commission erred by: (I) concluding that plaintiff\u2019s injury arose out of and in the course of her employment; and (II) determining plaintiff\u2019s average weekly wage.\nDefendants first argue that the Full Commission erred by concluding that plaintiff\u2019s injuries arose out of and in the course of her employment. Defendants assert that because the collision giving rise to plaintiff\u2019s injuries occurred while plaintiff was driving her personal vehicle to work, plaintiff\u2019s injuries are not compensable. We disagree.\nThis Court\u2019s review of a decision of the Full Commission is limited to determining whether competent evidence supports the Full Commission\u2019s findings of fact, and whether the Full Commission\u2019s findings of fact support its conclusions of law. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). \u201cWhether an injury arises out of and in the course of a claimant\u2019s employment is a mixed question of fact and law[.]\u201d Creel v. Town of Dover, 126 N.C. App. 547, 552, 486 S.E.2d 478, 481 (1997).\nThe \u201cgoing and coming rule\u201d states that \u201cinjuries sustained by an employee while going to or from work are not ordinarily compensable\u201d because the injuries do not arise out of or in the course of employment. Bass v. Mecklenburg County, 258 N.C. 226, 231-32, 128 S.E.2d 570, 574 (1962) (citations omitted); Hunt v. Tender Loving Care Home Care Agency, Inc., 153 N.C. App. 266, 269, 569 S.E.2d 675, 678, disc. review denied, 356 N.C. 436, 572 S.E.2d 784 (2002). The rationale for this rule is that \u201cthe risk of injury while traveling to and from work is one common to the public at large,\u201d Creel, 126 N.C. App. at 555, 486 S.E.2d at 482, and \u201c[a]n 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.\u201d Hunt, 153 N.C. App. at 269, 569 S.E.2d at 678. Nevertheless, the going and coming rule is subject to exceptions. Such exceptions have been recognized where:\n(1) an employee is going to or coming from work but is on the employer\u2019s premises when the accident occurs (premises exception); (2) the employee is acting in the course of his employment and in the performance of some duty, errand, or mission thereto (special errands exception); (3) an employee has no definite time and place of employment, requiring her to make a journey to perform a service on behalf of the employer (traveling salesman exception); or (4) an employer contractually provides transportation or allowances to cover the cost of transportation (contractual duty exception).\nStanley v. Burns Int\u2019l Sec. Servs., 161 N.C. App. 722, 725, 589 S.E.2d 176, 178 (2003) (citations omitted).\nIn the instant case, the Full Commission determined that both the traveling salesman exception and the contractual duty exception apply. Defendants contend that the traveling salesman exception does not apply because on the date of the collision, plaintiff had a fixed job location at the residence of her patient. In support of this contention, defendants cite this Court\u2019s refusal to apply the traveling salesman exception to the facts in Hunt. However, we conclude that Hunt is distinguishable from the instant case.\nIn Hunt, we noted that \u201c [i]f travel is contemplated as part of the employment, an injury from an accident during travel is compensable.\u201d 153 N.C. App. at 269, 569 S.E.2d at 678. Thus, under the traveling salesman exception, \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 Creel, 126 N.C. App. at 556-57, 486 S.E.2d at 483 (citations omitted). \u201cThe applicability of the \u2018traveling salesman\u2019 rule to the facts [of a case] depends upon the determination of whether [the] plaintiff had fixed job hours and a fixed job location.\u201d Hunt, 153 N.C. App. at 270, 569 S.E.2d at 678.\nLike the plaintiff in the instant case, the plaintiff in Hunt was a nursing aide whose work required her to travel to a patient\u2019s residence rather than report to her employer\u2019s premises. However, unlike the plaintiff in the instant case, the plaintiff in Hunt had worked for her employer for \u201cover two years\u201d and had worked \u201csolely\u201d with the same patient at the same address. Id. at 270, 569 S.E.2d at 678-79. Based upon these facts, this Court determined in Hunt that the plaintiff\u2019s \u201cemployment did not require attending to several patients, at different locations with no fixed work location.\u201d Id. at 270, 569 S.E.2d at 679.\nIn the instant case, plaintiff had only been employed at Caldwell for four days at the time of the collision, and she had been assigned to three different patients at different locations on each date of her employment. Although the parties stipulated that \u201cplaintiff. . . would visit only one patient per day[,]\u201d the parties also stipulated that \u201c[s]ome of [Caldwell\u2019s] home health care nurses were limited to a single patient and some would see multiple patients[.]\u201d The parties further stipulated that plaintiff\u2019s wages would \u201cbegin upon reaching a patient\u2019s residence.\u201d Thus, unlike in Hunt, plaintiff was not assigned \u201csolely\u201d to the patient she was en route to assist on the date of her injury. Instead, the record supports the Full Commission\u2019s determination that plaintiff\u2019s employment with Caldwell involved multiple patients, and that plaintiff had \u201cno fixed hours or place of work.\u201d Therefore, we conclude that the Full Commission did not err by determining that the traveling salesman exception applies to the instant case.\nDefendants also contend that the Full Commission erred by determining that the contractual duty exception applies to the instant case. In Hunt, this Court stated that \u201cwhere an employer provides transportation or allowances to cover the cost of transportation, injuries occurring while going to or returning from work are compensable\u201d under the contractual duty exception. Id.\nFor a claim to fall within this exception, the transportation must be provided as a matter of right as a result of the employment contract. If the transportation is provided permissively, gratuitously, or as an accommodation, the employee is not within the course of employment while in transit. Where the cost of transporting employees to and from work is made an incident to the contract of employment, compensation benefits have been allowed.\nId. (citations omitted).\nIn the instant case, plaintiff\u2019s employment with Caldwell included a mileage compensation plan \u201cfor approved patient care, education, and business miles.\u201d The plan provided that \u201c[f]or those having only one patient [per day], mileage will be paid if greater than 60 miles roundtrip from their listed home address.\u201d In Hunt, we rejected the plaintiff\u2019s claim that her accident was covered under a similar compensation policy, noting that \u201c[t]he parties stipulated that [the] plaintiff was not compensated for her travel because she did not travel over\u201d the relevant amount of mileage necessary for compensation under the policy. Id. at 271, 569 S.E.2d at 679. However, in the instant case, the parties stipulated that \u201c[t]he distance between the residence of [] plaintiff. . . and the residence of the patient she was visiting on January 8, 2001, was in excess of 60 miles round trip[,]\u201d and the parties also stipulated that plaintiff \u201cwould be reimbursed as per [the mileage compensation plan] for mileage to a patient\u2019s residence in Lenoir.\u201d The Full Commission noted these stipulations prior to determining that the contractual duty exception applies to the instant case. We conclude that the Full Commission did not err in its determination.\nDefendants maintain that neither the traveling salesman nor the contractual duty exceptions should apply to plaintiff\u2019s claim because at the time of the collision, plaintiff was driving to Caldwell\u2019s office rather than her patient\u2019s residence. We disagree.\nThis Court has noted that the traveling salesman exception does not apply where the evidence demonstrates a distinct departure by the employee on a personal errand. Dunn v. Marconi Communications, Inc., 161 N.C. App. 606, 612, 589 S.E.2d 150, 155 (2003). Similarly, we have also noted that \u201cthe \u2018contractual duty\u2019 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.\u201d Id. However, our courts have further recognized that workers\u2019 compensation rules are subject to \u201cliberal construction,\u201d and therefore, \u201c \u2018[w]here any reasonable relationship to employment exists, or employment is a contributory cause, the court is justified in upholding the award as \u201carising out of employment.\u201d \u2019 \u201d Kiger v. Service Co., 260 N.C. 760, 762, 133 S.E.2d 702, 704 (1963) (quoting Allred v. Allred-Gardner, Inc., 253 N.C. 554, 557, 117 S.E.2d 476, 479 (I960)).\nIn the instant case, defendants contend that plaintiff\u2019s route the date of the collision was not the most direct to her patient\u2019s residence, and that at the time of the collision, plaintiff had \u201cdoubled back\u201d to drop off her time slips. However, we note that in Creel, this Court agreed that \u201c \u2018[a]n identifiable deviation from a business trip for personal reasons takes the employee out of the course of his employment until he returns to the route of the business trip, unless the deviation is so small as to be regarded as insubstantial.\u2019 \u201d 126 N.C. App. at 557, 486 S.E.2d at 483 (quoting 1 Arthur Larson & Lex K. Larson, Larson\u2019s Workmen\u2019s Compensation Law \u00a7 19.00, at 4-352 (1996)). Moreover, in Smith v. Central Transport, 51 N.C. App. 316, 321, 276 S.E.2d 751, 754 (1981), we held that an employee\u2019s injury from an automobile collision arose out of and in the course of his employment, and was not incurred during a distinct departure, even though the collision occurred \u201capproximately four and a half hours after [the employee] had delivered his load of chemicals, and while he was ... heading in a direction which would have been opposite to the most direct route back\u201d to his employer\u2019s business. In the instant case, we conclude that even if plaintiff deviated from the most direct route of her travel in order to drop off her time slips, this deviation does not rise to the level of a distinct departure. Plaintiff stipulated that \u201c[s]he was on her way to see a patient\u201d when the collision occurred, but because \u201c[s]he had extra time . . . she decided to drop off [her] time slips at\u201d Caldwell\u2019s office. Plaintiff also stipulated that she was required to drop her time slips off at Caldwell\u2019s office by 5:00 p.m. on Mondays, including Monday, 8 January 2001, the date of the collision. Although we note that plaintiff would not be reimbursed for the mileage she incurred in driving to drop off her time slips, we also note that Caldwell\u2019s office was located in the same town as plaintiff\u2019s patient\u2019s residence. In light of the foregoing, we conclude that the Full Commission correctly determined that plaintiff\u2019s \u201cmere intention to drop her pay slips off while traveling the route to her patient\u2019s home\u201d did not prevent application of the traveling salesman and contractual duty exceptions. Accordingly, we overrule defendants\u2019 first argument.\nDefendants\u2019 final argument is that the trial court erred by determining plaintiff\u2019s average weekly wage. N.C. Gen. Stat. 97-2(5) (2003) governs the determination of an injured worker\u2019s average weekly wage, and it provides in pertinent part as follows:\nAverage Weekly Wages. \u2014 \u201cAverage weekly wages\u201d shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury .... Where the employment prior to the injury extended over a period of fewer than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed; provided, results fair and just to both parties will be thereby obtained. Where, by reason of a shortness of time during which the employee has been in the employment of his employer or the casual nature or terms of his employment, it is impractical to compute the average weekly wages as above defined, regard shall be had to the average weekly amount which during the 52 weeks previous to the injury was being earned by a person of the same grade and character employed in the same class of employment in the same locality or community.\nBut where for exceptional reasons the foregoing would be unfair, either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.\nIn the instant case, prior to the hearing, the parties stipulated in pertinent part as follows:\n3. With respect to average weekly wage, during the year 2000, [Caldwell\u2019s] PRN (as needed) LPNs worked:\na. If each week is averaged, the total average hours per week is 23.94.\nb. With a weighted average (weeks with 10 LPNs working would receive twice the weight as weeks with 5 LPNs working), the average hours per week is 22.76.\nBased in part upon this stipulation, the Full Commission concluded in pertinent part as follows:\n11. In this case, plaintiffs average weekly wage is best determined by employing another method as set forth in N.C. Gen. Stat. \u00a7 97-2(5) because plaintiff\u2019s employment prior to her injury extended over a period of less than 52 weeks. Accordingly, plaintiff\u2019s average weekly wage shall be that of a similar situated employee who has been employed by [Caldwell] for more than one year. Since the parties stipulated that other LPNs worked an average of 23.94 hours per week, at $17.00 per hour for 23.94 hours per week, plaintiff\u2019s average weekly wages are $406.98, which yields a compensation rate of $271.46 per week.\nDefendants contend that the Full Commission should have used the weighted average hours detailed in the stipulation rather than the straight average. However, notwithstanding their assertion that the weighted average \u201cmore accurately reflects expected hours of a PRN LPN,\u201d defendants cite no authority in support of their argument and fail to demonstrate why the weighted average is preferred. As discussed above, our review on appeal of an opinion and award of the Full Commission is limited to determining whether competent evidence supports the Full Commission\u2019s findings of fact, and whether those findings of fact support the Full Commission\u2019s conclusions of law. Adams, 349 N.C. at 681, 509 S.E.2d at 414. In the instant case, the Full Commission\u2019s conclusion of law indicates that it based its decision to use the straight average upon the stipulation agreed to by both parties. Thus, in light of the foregoing, we conclude that the Full Commission did not err in its determination regarding plaintiffs average weekly wage. Therefore, we overrule defendants\u2019 final argument, and accordingly, we affirm the Full Commission\u2019s opinion and award.\nAffirmed.\nJudges McCULLOUGH and STEELMAN concur.",
        "type": "majority",
        "author": "TIMMONS-GOODSON, Judge."
      }
    ],
    "attorneys": [
      "Charles G. Monnett, III & Associates, by Craig O. Asbill, for plaintiff-appellee.",
      "Jones, Hewson & Woolard, by Lawrence J. Goldman, for defendants-appellants."
    ],
    "corrections": "",
    "head_matter": "JOANNE MUNOZ, Employee, Plaintiff v. CALDWELL MEMORIAL HOSPITAL, Employer, and ALLIED CLAIMS ADMINISTRATION, Carrier, Defendants\nNo. COA04-1292\n(Filed 5 July 2005)\n1. Workers\u2019 Compensation\u2014 going and coming rule \u2014 traveling salesman exception \u2014 home health nurse\nThe traveling salesman exception to the going and coming rule applied in a workers\u2019 compensation case to a home health nurse injured in an automobile collision while going to a patient\u2019s residence. The record supports the Commission\u2019s conclusion that plaintiffs employment involved multiple patients with no fixed hours or places of work.\n2. Workers\u2019 Compensation\u2014 going and coming rule \u2014 contractual duty exception \u2014 home health nurse\nThe contractual duty exception applied in a workers\u2019 compensation case to a home health nurse injured in an automobile accident on her way to a patient\u2019s house. The parties stipulated that the distance was sufficient for plaintiff to be reimbursed for mileage under her contract.\n3. Workers\u2019 Compensation\u2014 going and coming rule \u2014 exceptions \u2014 deviation from direct route \u2014 not distinct departure\nA home health nurse\u2019s decision to drive to her employer\u2019s office to drop off time slips on her way to a patient\u2019s residence did not prevent application of the traveling salesman and contractual duty exceptions to the going and coming rule. Even if plaintiff deviated from the most direct route, this deviation does not rise to the level of a distinct departure from her business trip.\n4. Workers\u2019 Compensation\u2014 average weekly wage \u2014 straight average rather than weighted\nThe Industrial Commission did not err by using a straight rather than a weighted average to determine the average weekly wage of an injured nurse employed less than a year where the decision was based on the parties\u2019 stipulation. Defendants neither cite authority nor demonstrate why a weighted average is to be preferred.\nAppeal by defendants from opinion and award entered 28 June 2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 12 May 2005.\nCharles G. Monnett, III & Associates, by Craig O. Asbill, for plaintiff-appellee.\nJones, Hewson & Woolard, by Lawrence J. Goldman, for defendants-appellants."
  },
  "file_name": "0386-01",
  "first_page_order": 416,
  "last_page_order": 425
}
