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Chavis v. TLC Home Health Care8/16/2005
leaving the place of employment to return home."). In Stanley, " he [employee] was driving her own vehicle at the time of the accident, and her employer did not pay for travel time to and from work or reimburse her for mileage[, and] . . . the [employee] was no longer on the employer's premises." 161 N.C. App. at 725, 589 S.E.2d at 178. There, we held the employee was subject to the "going and coming" rule and affirmed the Commission's denial of compensation. Here, Ms. Chavis has also failed to show she falls within any exception to the "going and coming" rule. See Royster, 343 N.C. at 281, 470 S.E.2d at 31. Exceptions to the "going and coming" rule do not allow compensate for injuries that occur while an employee is engaged in purely personal errands.
B. "Traveling Salesman"
The "traveling salesman" exception allows compensation for injuries to employees "whose work requires travel away from the employer's premises are within the course of their employment continuously during such travel, except when there is a distinct departure for a personal errand." 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); Brewer v. Powers Trucking Co., 256 N.C. 175, 179, 123 S.E.2d 608, 611 (1962). In Jacobs v. Sara Lee Corp., an employee fell and injured his knee on an employer-sponsored trip while coming from a baseball game not included on his employee itinerary. 157 N.C. App. 105, 106-07, 577 S.E.2d 696, 698 (2003). "The Commission concluded as a matter of law, 'plaintiff's injury while on a deviation to a baseball game is not compensable. Plaintiff had not ended his personal deviation when he was injured leaving the ballpark.'" Id.
This Court has also held, "employees 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." Creel v. Town of Dover, 126 N.C. App. 547, 556-57, 486 S.E.2d 478, 483 (1997); see also Hunt, 153 N.C. App. at 270, 569 S.E.2d at 678. ("The applicability of the 'traveling salesman' rule to the facts at bar depends upon the determination of whether plaintiff had fixed job hours and a fixed job location."). The majority's opinion holds Ms. Chavis has proven she is entitled to compensation under the "traveling salesman" exception simply because she was required to travel "continuously" throughout the day to different patients. Their opinion also asserts Ms. Chavis had no "fixed" place of employment.
Ms. Chavis has failed to prove she is entitled to compensation under the "traveling salesman" exception for several reasons. Ms. Chavis was not on an overnight trip as is usually required by this exception. See Jacobs, 157 N.C. App. at 106-07, 577 S.E.2d at 698. While Ms. Chavis did not have one fixed place of employment, she did have fixed hours of employment. She was not compensated for time when she was not on duty. An employee must simultaneously have no definite place of work and no definite hours to be considered a traveling employee. Hunt, 153 N.C. App. at 270, 569 S.E.2d at 678. Here, Ms. Chavis was "off-duty" and was engaged in a personal errand while "off-duty" for her personal gain. See Bowser, 147 N.C. App. at 311, 555 S.E.2d at 621 (A traveling employee was denied compensation when on a personal errand to lunch.). Ms. Chavis failed to call her employer for a new assignment when her patient left the house. Although Ms. Chavis was told not to remain in the patient's house, nothing required her to leave the patient's premises, particularly where the patient would be gone for only "20 minutes."
C. "Contractual Duty"
"The 'contractual duty'
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