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Chavis v. TLC Home Health Care8/16/2005
her employment. The words "arising out of the employment" refer to the origin or cause of the accidental injury. Roberts, 321 N.C. at 354, 364 S.E.2d at 420. " contributing proximate cause of the injury must be a risk inherent or incidental to the employment, and must be one to which the employee would not have been equally exposed apart from the employment." Culpepper, 93 N.C. App. at 248, 377 S.E.2d at 781 (emphasis omitted) (citing Gallimore, 292 N.C. at 404, 233 S.E.2d at 533). Under this "increased risk" analysis, the "causativedanger must be peculiar to the work and not common to the neighborhood." Gallimore, 292 N.C. at 404, 233 S.E.2d at 532 (citations omitted). Where a plaintiff's job requires him or her to travel from his or her place of work to various places in the community, the job exposes the plaintiff to the risk of travel. Warren v. City of Wilmington, 43 N.C. App. 748, 750, 259 S.E.2d 786, 788 (1979).
In this case, Ms. Chavis's job required her to travel to and from different patients' homes, exposing her to the risk of travel. This increased travel time is an "increased risk" inherent to the employment. Culpepper, 93 N.C. App. at 248, 377 S.E.2d at 781.
However, TLC Home Health Care argues that Ms. Chavis's accident was caused by her idiopathic condition, i.e., blackout, and not her increased travel risk. " here the accident and resultant injury arise out of both the idiopathic condition of the workman and hazards incident to the employment, the employer is liable. But not so where the idiopathic condition is the sole cause of the injury." Vause v. Vause Farm Equip. Co., Inc., 233 N.C. 88, 92-93, 63 S.E.2d 173, 176 (1951). The general rule is that where an employee falls from a building, scaffold, ladder, or other place of danger where his employment places him, the accident, if it appears to be incident to and a natural result of a particular risk of the work, may be said to arise out of the employment, even though illness or some pre-existing infirmity may have been a contributing cause of the fall.
Vause, 233 N.C. at 96, 63 S.E.2d at 179 (citing Rewis v. N.Y. Life Ins. Co., 226 N.C. 325, 38 S.E.2d 97 (1946); DeVine v. Dave Steel Co., 227 N.C. 684, 44 S.E.2d 77 (1947); Robbins v. Bossong Hosiery Mills, Inc., 220 N.C. 246, 17 S.E.2d 20 (1941)).
The full Commission found that "Plaintiff's October 26, 2000 injury arose out of both her idiopathic condition and the hazards incident to her employment with defendant-employer." Ms. Chavis testified that " he only thing I remember was I was fixing to hit the side of the road. I know I was going around a curve, the next thing I know I was hitting the side of the church. That's the only thing I can remember." Ms. Chavis had previously described this incident as having a "blackout." But the accident occurred while Ms. Chavis was driving in the course of her employment. Ms. Chavis's job duties required her constantly to travel in her car, increasing her travel risk. Since Ms. Chavis's work required her to face the increased risk of constant road travel on her job, we hold that the car accident "arose out of" her employment, even though her idiopathic condition may have been a contributing cause. Vause, 233 N.C. at 96, 63 S.E.2d at 179.
Next, TLC Home Health Care argues that the full Commission erred in concluding that Ms. Chavis's average weekly wage should include what she was paid in mileage reimbursement. We disagree.
Section 97-2(5) of the North Carolina General Statutes provides in pertinent part that " herever allowances of any character made to an employee in lieu of wages are specified part of the wage contract, they shall be deemed a part of his earnings." N.C. Gen. Stat. ยง
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