{ "id": 8372150, "name": "NORMA G. HOLLIN, Employee, Plaintiff v. JOHNSTON COUNTY COUNCIL ON AGING, Employer LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Hollin v. Johnston County Council on Aging", "decision_date": "2007-01-02", "docket_number": "No. COA06-310", "first_page": "77", "last_page": "85", "citations": [ { "type": "official", "cite": "181 N.C. App. 77" } ], "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": "625 S.E.2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635042 ], "year": 2006, "pin_cites": [ { "page": "564" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0562-01" ] }, { "cite": "614 S.E.2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633151 ], "weight": 6, "year": 2005, "pin_cites": [ { "page": "451" }, { "page": "451" }, { "page": "451" }, { "page": "451" }, { "page": "451" }, { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0448-01" ] }, { "cite": "117 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "479" } ], "opinion_index": 0 }, { "cite": "253 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626303 ], "pin_cites": [ { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0554-01" ] }, { "cite": "133 S.E.2d 702", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1963, "pin_cites": [ { "page": "704", "parenthetical": "quoting Allred v. Allred-Gardner, Inc., 253 N.C. 554, 557, 117 S.E.2d 476, 479 (I960)" }, { "page": "704" } ], "opinion_index": 0 }, { "cite": "260 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576353 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "762", "parenthetical": "quoting Allred v. Allred-Gardner, Inc., 253 N.C. 554, 557, 117 S.E.2d 476, 479 (I960)" }, { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0760-01" ] }, { "cite": "224 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1976, "pin_cites": [ { "page": "658" }, { "page": "659" }, { "page": "660" }, { "page": "660" } ], "opinion_index": 0 }, { "cite": "29 N.C. App. 491", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8437195 ], "weight": 6, "year": 2005, "pin_cites": [ { "page": "389" }, { "page": "389" }, { "page": "389" }, { "page": "389" }, { "page": "390" }, { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0386-01" ] } ], "analysis": { "cardinality": 814, "char_count": 18705, "ocr_confidence": 0.751, "pagerank": { "raw": 3.2880849261113536e-07, "percentile": 0.8711550364519322 }, "sha256": "90b38514a2b24380ee144543299d81a9543cd3c786175c65058a4b613a121991", "simhash": "1:277505cb7efb2a0e", "word_count": 3104 }, "last_updated": "2023-07-14T22:19:54.793724+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and CALABRIA concur.", "Judge HUDSON concurred in this opinion prior to 31 December 2006." ], "parties": [ "NORMA G. HOLLIN, Employee, Plaintiff v. JOHNSTON COUNTY COUNCIL ON AGING, Employer LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "HUNTER, Judge.\nNorma G. Hollin (\u201cplaintiff\u2019) appeals from an opinion and award of the North Carolina Industrial Commission (\u201cthe Commission\u201d) denying her claim for benefits pursuant to the Workers\u2019 Compensation Act. Plaintiff argues that, as she was required to provide her own vehicle for transportation as part of her employment as a health care aide with the Johnston County Council on Aging (\u201cdefendant\u201d), the injuries she sustained while traveling to her worksite arose out of and in the course of employment. We agree and therefore reverse the opinion and award of the Commission.\nPlaintiff\u2019s case came before the Commission on 27 June 2005. The evidence tended to show that plaintiff was employed by defendant as a health care aide providing assistance to patients in their homes. Plaintiff saw the same patients each week and worked regular hours from 8:00 a.m. in the morning until 4:00 p.m. in the afternoon, Monday through Friday. Plaintiff was required to use her own personal vehicle for transportation to her patients\u2019 homes, and received reimbursement for travel between patients\u2019 homes. However, as part of defendant\u2019s company policy, plaintiff was not considered to be working or \u201con the clock\u201d while traveling from her residence to her first patient\u2019s home in the morning and from her last patient\u2019s home in the afternoon back to her residence, and she did not receive reimbursement for such travel. Plaintiff earned $6.72 per hour in addition to 31\u2021 for each mile she traveled between job sites.\nOn 20 May 2003, plaintiff was traveling to the home of her first patient for the day when she was involved in a head-on collision with another vehicle. As a result of the accident, plaintiff sustained severe injuries to both legs and underwent several surgeries. Plaintiff resigned from her employment with defendant on 16 June 2003 due to the severity of her injuries and the extended period of time she would require to recover.\nAfter considering the evidence, the Commission concluded that plaintiff\u2019s injury did not arise \u201cin the course of\u2019 her employment and entered an opinion and award denying her claim to benefits. Plaintiff appeals.\n\u201cThis 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.\u201d Munoz v. Caldwell Mem\u2019l Hosp., 171 N.C. App. 386, 389, 614 S.E.2d 448, 451 (2005): \u201cHowever, questions of law are reviewed de novo.\u201d Nicholson v. Edwards Wood Prods., 175 N.C. App. 773, 776, 625 S.E.2d 562, 564 (2006). The question of whether a claimant\u2019s injury arises in the course of employment is a mixed question of law and fact. Munoz, 171 N.C. App. at 389, 614 S.E.2d at 451. Here, plaintiff does not challenge the Commission\u2019s findings, but rather its conclusions of law. We must therefore determine whether the Commission\u2019s findings support its conclusion of law that plaintiff\u2019s injury did not arise out of and in the course of her employment.\n\u201cAn employee is entitled to workers\u2019 compensation benefits for injuries sustained in an accident arising out of and in the course of employment.\u201d Hunt v. Tender Loving Care Home Care Agency, Inc., 153 N.C. App. 266, 269, 569 S.E.2d 675, 678 (2002). The term \u201carising out of\u2019 refers to the cause of the accident, while the term \u201cin the course of\u2019 refers to the time, place, and circumstances in which an accident occurred. Id. \u201cThe accident must happen during the time and at the place of employment.\u201d Id.\nThe \u201cgoing and coming rule\u201d provides that \u201c \u2018injuries sustained by an employee while going to or from work are not ordinarily compensable\u2019 because the injuries do not arise out of or in the course of employment.\u201d Munoz, 171 N.C. App. at 389, 614 S.E.2d at 451 (quoting Bass v. Mecklenburg County, 258 N.C. 226, 231-32, 128 S.E.2d 570, 574 (1962)). This is because \u201c \u2018the risk of injury while traveling to and from work is one common to the public at large,\u2019 \u201d Munoz, 171 N.C. App. at 389, 614 S.E.2d at 451 (quoting Creel v. Town of Dover, 126 N.C. App. 547, 555, 486 S.E.2d 478, 482 (1997)), 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. However, the going and coming rule is subject to the following exceptions:\n\u201c(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).\u201d\nMunoz, 171 N.C. App. at 390, 614 S.E.2d at 451 (quoting Stanley 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 Commission rejected plaintiff\u2019s arguments that two exceptions to the going and coming rule apply to her case: the \u201ctraveling salesman\u201d exception and the \u201ccontractual duty\u201d exception. The \u201ctraveling salesman\u201d exception states that \u201c[i]f travel is contemplated as part of the employment, an injury from an accident during travel is compensable.\u201d Hunt, 153 N.C. App. at 269, 569 S.E.2d at 678. Such claims are compensable because \u201cemployees with no definite time and place of employment... are within the course of their employment when making a journey.to perform a service on behalf of their employer.\u201d Creel, 126 N.C. App. at 556-57, 486 S.E.2d at 483. The applicability of the \u201ctraveling salesman\u201d exception to a particular case \u201c \u2018depends upon the determination of whether [the] plaintiff had fixed job hours and a fixed job location.\u2019 \u201d Munoz, 171 N.C. App. at 390, 614 S.E.2d at 451 (quoting Hunt, 153 N.C. App. at 270, 569 S.E.2d at 678).\nApplying the traveling salesman exception to the instant case, the Commission found that plaintiff \u201cworked from 8:00 a.m. in the morning until 4:00 p.m. in the afternoon, Monday through Friday.\u201d Although plaintiff worked with patients in their individual homes, plaintiff worked with the same patients each week. The Commission also found that \u201c[p]laintiff would see these same patients until the patient died, got sick, or no longer needed her services.\u201d Based on these findings, the Commission concluded that:\nBecause plaintiff had fixed work hours and saw the same patients each week, her situation is different from a true traveling salesman who might visit a different customer each day. . Plaintiff saw the same patients week after week, traveled to the same homes week after week, and therefore she had fixed work locations. Therefore, the traveling salesman exception does not apply to this case.\nThe findings of fact support the Commission\u2019s determination that the traveling salesman exception does not apply to the instant case. See Hunt, 153 N.C. App. at 269-70, 569 S.E.2d at 678-79.\nWe also agree with the Commission that the \u201ccontractual duty\u201d exception does not apply to plaintiffs claim. \u201cThe \u2018contractual duty\u2019 exception provides that where an employer provides transportation or allowances to cover the cost of transportation, injuries occurring while going to or returning from work are compensable.\u201d Id. at 270, 569 S.E.2d at 679. \u201cWhere the cost of transporting employees to and from work is made an incident to the contract of employment, compensation benefits have been allowed.\u201d Id. Although plaintiff was reimbursed for travel as part of her job, plaintiff admitted that she was not reimbursed for travel to the first patient\u2019s home in the morning and from the last patient\u2019s home to her home in the afternoon. Plaintiff understood and agreed to this policy at the time she was hired by defendant. Plaintiff was injured as she was traveling to her first patient\u2019s home. The Commission concluded that \u201c[p]laintiff was only paid travel reimbursement for travel between patients\u2019 homes and defendant-employer did not transport any employees to and from work. Therefore, the contractual duty exception does not apply in this case.\u201d The Commission\u2019s conclusions are supported by its findings.\nWe nevertheless agree with plaintiff that her claim was compensable. Plaintiff was required as a condition of employment to use her personal vehicle while at work. \u201cIf the employee as part of his or her job is required to bring along his or her own car, truck or motorcycle for use during the working day, the trip to and from work is by that fact alone embraced within the course of employment.\u201d 1 Arthur Larson, Larson\u2019s Workers\u2019 Compensation Law \u00a7 15.05(1) (2006). Professor Larson notes that the reasoning behind the rule\nis in part related to that of the employer-conveyance cases: the obligations of the job reach out beyond the premises, make the vehicle a mandatory part of the employment environment, and compel the employee to submit to the hazards associated with private motor travel, which otherwise he or she would have the option of avoiding. But in addition there is at work the factor of making the journey part of the job, since it is a service to the employer to convey to the premises a major piece of equipment devoted to the employer\u2019s purposes. .. .\nId. at \u00a7 15.05(2).\nThis rule is followed in a great number of jurisdictions. See, e.g., Olsten Kimberly Quality Care v. Pettey, 944 S.W.2d 524, 527 (Ark. 1997); Smith v. Workmen\u2019s Compensation Appeals Board, 447 P.2d 365, 373 (Cal. 1968); Whale Communications v. Osborn, 759 P.2d 848, 848 (Colo. Ct. App. 1988); Poinciana Village Const. Corp. v. Gallarano, 424 So. 2d 822, 823 (Fla. Dist. Ct. App. 1982); Pittsburgh Testing Laboratories v. Kiel, 167 N.E.2d 604, 606-07 (Ind. App. 1960); Medical Assoc. Clinic v. First Nat. Bank, 440 N.W.2d 374, 375-76 (Iowa 1989); Prothro v. Louisiana Paving Co., Inc., 399 So. 2d 1229, 1230 (La. App. 1981); Alitalia v. Tornillo, 603 A.2d 1335, 1343 (Md. 1992); Gilbert v. Star Tribune/Cowles Media, 480 N.W.2d 114, 115 (Minn. 1992); White v. Atlantic City Press, 313 A.2d 197, 200 (N.J. 1973); Weatherbee Electric Company v. Duke, 294 P.2d 298, 301 (Okla. 1955); Liberty Northwest Ins. Corp. v. Over, 810 P.2d 876, 877-78 (Or. App. 1991); Toolin v. Aquidneck Island Med. Resource, 668 A.2d 639, 641 (R.I. 1995); Bailey v. Utah State Industrial Commission, 398 P.2d 545, 547 (Utah 1965).\nFor example, in a case strikingly similar to the present one, the Supreme Court of Arkansas held that an in-home nurse\u2019s assistant who was injured on her way to the home of her first patient of the day was entitled to workers\u2019 compensation benefits. Olsten Kimberly Quality Care, 944 S.W.2d at 527. The claimant used her own vehicle for travel to and from her patients\u2019 homes, but received no wages for travel time, and was not reimbursed for travel expenses. Id. at 525. The Olsten Court noted that the \u201c \u2018going and coming\u2019 rule ordinarily precludes recovery for an injury sustained while the employee is going to or returning from his place of employment.\u201d Id. at 527. It was nevertheless\nevident that [the claimant] was required by the very nature of her job description to submit herself to the hazards of day-to-day travel in her own vehicle, back and forth to the homes of her patients. As such, [the claimant] was acting within the course of her employment with [defendant-employer] at the time her injuries were sustained.\nId. The Court reasoned: \u201c \u2018It is . . . clear that delivering nursing services to patients at their homes is the raison d\u2019etre of the [employer\u2019s] business, and that traveling to patients\u2019 homes is an essential component of that service.\u2019 \u201d Id. (citation omitted).\nDefendant argues that this Court\u2019s decision in Franklin v. Board of Education, 29 N.C. App. 491, 224 S.E.2d 657 (1976), prevents adoption of a rule providing compensation benefits where an employee is required to furnish their own conveyance and is injured on the way to the worksite. In Franklin, the claimant\u2019s decedent was a teacher employed at two schools located several miles apart. Id. at 492, 224 S.E.2d at 658. She received traveling expenses to drive her personal vehicle between the two. Id. She was killed in an automobile accident when she backed her car out of the school parking lot and onto the highway. The point of impact was on the highway. Id. at 493, 224 S.E.2d at 659. The day she was killed, she had finished teaching at one school, and had driven to the other school to pick up her paycheck. She was killed after picking up her paycheck. Id. The Commission concluded that the decedent\u2019s death did not arise out of and in the course of her employment and denied benefits. Id. at 494, 224 S.E.2d at 660. Upon appeal, this Court agreed with the Commission, as there was no evidence to show that the decedent was on employer-related business when she was killed. Id. at 495, 224 S.E.2d at 660. The Court never addressed the issue, however, of whether the claimant should be entitled to compensation because she was required to furnish her own vehicle, and it is unclear whether such a claim was ever raised before the Court. As such, we do not agree that Franklin operates to bar plaintiff\u2019s claim.\nDefendant further argues that adoption of the rule would eliminate the contractual duty exception. We do not agree. This rule will expand, not eliminate the contractual duty exception. As Professor Larson cautions,\ncare must be exercised not to confuse these cases with the more common cases [involving contractual duty exceptions] in which attention is focused exclusively on the journey itself \u2014 in particular, on the question: was the employee paid for the time or expenses of the journey itself? In the present category, it is immaterial whether the employee is compensated for the time or expenses of the journey, since work-connection is independently established by the fact of conveying the vehicle to the operating premises. Indeed, it is quite common in these cases to find that the employee is reimbursed for his or her mileage after he or she reaches the premises and until he or she leaves for home, but specifically not for the going and coming trip. Yet the going and coming trip has repeatedly been held covered in these circumstances.\nLarson at \u00a7 15.05(2) (footnote omitted).\nIt is well established in North Carolina that the Workers\u2019 Compensation Act should be liberally construed and that \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 \u2019\u2019 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)). We find the reasoning of Olsten Kimberly Quality Care and the many jurisdictions that follow the rule expressed in Larson\u2019s highly persuasive, and we hold that where an employee who is required to furnish their own vehicle as part of their employment is injured going to or coming from work, such injuries are covered by the Workers\u2019 Compensation Act. See Kiger, 260 N.C. at 762, 133 S.E.2d at 704. Plaintiff here was required to furnish her own vehicle for her employer\u2019s use in providing in-home care to patients. \u201c \u2018[Delivering nursing services to patients at their homes is the raison d\u2019etre of [defendant\u2019s] business, and ... traveling to patients\u2019 homes is an essential component of that service.\u2019 \u201d Olsten Kimberly Quality Care, 944 S.W.2d at 527 (citation omitted). Plaintiff was traveling to her first patient\u2019s home at the time she sustained her injuries. She was required to travel there in her own vehicle, and so was \u201crequired by the very nature of her job description to submit herself to the hazards of day-to-day travel.. . back and forth to the homes of her patients.\u201d Id. Unlike the public at large, who may choose their mode of transportation, plaintiff was required to use her private vehicle as part of her employment. \u201cAs such, [plaintiff] was acting within the course of her employment with [defendant] at the time her injuries were sustained.\u201d Id.\nIn conclusion, we hold plaintiff is entitled to benefits under the Workers\u2019 Compensation Act. We therefore reverse the opinion and award denying plaintiff benefits and remand this case to the Commission for entry of an opinion and award consistent with this opinion.\nReversed and remanded.\nJudges HUDSON and CALABRIA concur.\nJudge HUDSON concurred in this opinion prior to 31 December 2006.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Brent Adams & Associates, by Brenton D. Adams and Sheila W. Chavis, for plaintiff-appellant.", "Hedrick Eatman Gardner & Kincheloe, L.L.P., by Tonya D. Davis and Bettina Mumme, for defendant-appellees." ], "corrections": "", "head_matter": "NORMA G. HOLLIN, Employee, Plaintiff v. JOHNSTON COUNTY COUNCIL ON AGING, Employer LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants\nNo. COA06-310\n(Filed 2 January 2007)\n1. Workers\u2019 Compensation\u2014 going and coming rule \u2014 traveling salesman exception \u2014 not applicable to home health aid with fixed hours and patients\nThe workers\u2019 compensation traveling salesman exception to the going and coming rule did not apply to a home health aid who was injured as she traveled from her home to the home of the first patient of the day. Plaintiff had fixed hours and the same patients every week.\n2. Workers\u2019 Compensation\u2014 going and coming rule \u2014 contractual duty exception \u2014 home health aid not reimbursed for first visit of the day \u2014 agreed policy at hiring\nThe workers\u2019 compensation contractual duty exception to the going and coming rule did not apply to a home health aid as she traveled from her home to the home of the first patient of the day. Plaintiff was not reimbursed for expenses in traveling to the first patient\u2019s home in the morning, and she understood and agreed to this policy when she was hired.\n3. Workers\u2019 Compensation\u2014 use of personal vehicle required \u2014 covered by Act\nThe Workers\u2019 Compensation Act covers injuries to employees who are required to furnish a personal vehicle as part of their employment and who are injured going to or coming from work. The public at large can choose its mode of transportation, but the home health aid in this case was required to use her vehicle as part of her employment.\nAppeal by plaintiff from an opinion and award entered 14 November 2005 by the North Carolina Industrial Commission. Heard in the Court of Appeals 18 October 2006.\nBrent Adams & Associates, by Brenton D. Adams and Sheila W. Chavis, for plaintiff-appellant.\nHedrick Eatman Gardner & Kincheloe, L.L.P., by Tonya D. Davis and Bettina Mumme, for defendant-appellees." }, "file_name": "0077-01", "first_page_order": 109, "last_page_order": 117 }