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Powers v. APAC-Carolina/Barrus7/19/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Glenn Hanson Powers (plaintiff) appeals from an Opinion and Award of the Full Commission dated 16 March 2004 denying his claim for workers' compensation benefits from APAC-Carolina/Barrus and ACE USA/ESIS (defendants).
Plaintiff was employed as an estimator with defendant. As an estimator, his duties included meeting customers, determining thequantity of work to be done on a project, developing contracts, determining final quantities for jobs, and preparing bills. On 14 February 2000, plaintiff left his home at 6:30 a.m. to travel to defendant's office. He was driving a vehicle leased by defendant and collided with another vehicle while en route to work at 6:45 a.m. As a result of the accident, plaintiff sustained a back injury . Dr. Robert Wilfong performed plaintiff's back surgery which caused plaintiff to be out of work from February until May 2000. Plaintiff returned to work for defendant at the same pay rate from May 2000 until 7 February 2001, at which time he stopped working because of the pain in his back.
Plaintiff filed this action alleging injuries sustained in the vehicle accident on 14 February 2000 were compensable under the Workers' Compensation Act. This matter came for hearing before Deputy Commissioner Phillip A. Holmes on 27 August 2002. At the hearing, the parties submitted a pre-hearing agreement, stipulating to jurisdictional issues and various exhibits. On 7 February 2003 Deputy Commissioner Holmes entered an Opinion and Award stating plaintiff had sustained an injury which was not compensable, as it did not arise out of the course and scope of employment. Plaintiff appealed to the Full Commission. On 16 March 2004, the Full Commission entered an Opinion and Award affirming the denial of plaintiff's claim. Plaintiff appeals.
The dispositive issue is whether the Commission erred in determining plaintiff's claim is not compensable under the Workers' Compensation Act.
"The standard of review on appeal to this Court from an award by the Commission is whether there is any competent evidence in the record to support the Commission's findings and whether those findings support the Commission's conclusions of law. Therefore, if there is competent evidence to support the findings, they are conclusive on appeal even though there is plenary evidence to support contrary findings." Oliver v. Lane Co., 143 N.C. App. 167, 170, 544 S.E.2d 606, 608 (2001) (citations omitted). " he Commission's conclusions of law are fully reviewable." Holley v. ACTS, Inc., 357 N.C. 228, 231, 581 S.E.2d 750, 752 (2003) (citing Lanning v. Fieldcrest-Cannon, Inc., 352 N.C. 98, 106, 530 S.E.2d 54, 60 (2000)).
Under N.C. Gen. Stat. § 97-2(6) (2003), an injury by accident must arise out of and in the course of employment to be compensable under the Workers' Compensation Act. Royster v. Culp, Inc., 343 N.C. 279, 470 S.E.2d 30 (1996). The general rule is that an accidental injury occurring while an employee travels to and from work is not one that arises out of and in the course of employment. Powers v. Lady's Funeral Home, 306 N.C. 728, 730-31, 295 S.E.2d473, 475 (1982). The "hazards of traffic are not incident to the employment and are common to the general public," and not covered by the Act. Leonard T. Jernigan, Jr., North Carolina Worker's Compensation Law and Practice § 6-3 (3d ed. 1999) (citing Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968)). This is known as the "coming and going" rule.
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