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Powers v. APAC-Carolina/Barrus7/19/2005
Id.
Plaintiff claims his injuries are compensable because his accident falls within an exception to the "coming and going" rule. We disagree.
We first note plaintiff fails to set out assignments of error in his brief as required by N.C. R. App. P. Rule 28(b)(6). "Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be deemed abandoned." N.C. R. App. P. Rule 28(b)(6) (2003). Therefore, plaintiff's assignments of error are deemed abandoned and the Commission's findings of fact are binding on appeal. See Hooker v. Stokes-Reynolds Hospital/North Carolina Baptist Hosp., 161 N.C. App. 111, 114-15, 587 S.E.2d 440, 443 (2003), disc. review denied, 358 N.C. 234, 594 S.E.2d 192 (2004).
The Commission made the following pertinent findings of fact:
1. On February 14, 2000, plaintiff was employed as an estimator with [defendant]. He has been so employed since 1977.
4. Plaintiff lived approximately 21 miles from [defendant's place of business]. The majority of the time, plaintiff traveled straight to the office on weekday mornings from his house.
5. On the morning of February 14, 2000, plaintiff left his home in Maple Hill, North Carolina at approximately 6:30 a.m. . . .
6. Plaintiff testified at the hearing before the Deputy Commissioner that on February 14, 2000 he was not traveling to run any errands to benefit his employer and his destination was [defendant's place of business]. Plaintiff was driving a [vehicle] leased by [defendant] and [defendant] did not give plaintiff any travel allowance for his commutes to and from work.
7. The plaintiff was approximately seven miles [from work] when his vehicle collided with another vehicle. The plaintiff was alone in his vehicle at the time of the accident.
8. Plaintiff sustained back injuries in the accident and was transported to a hospital in Jacksonville.
9. The plaintiff was later transported to [the hospital and] his x-rays revealed a fracture at his L-1 vertebrae. Dr. Robert Wilfong performed a spinal fusion on the plaintiff and he remained hospitalized for ten days.
10. Dr. Wilfong ultimately released plaintiff to return to work and he went back to work [for defendant] from May, 2000 through February 7, 2001. During these nine (9) months, plaintiff performed quantity takeoffs for estimators, took measurements of units at job sites, and performed survey layouts.
11. On February 7, 2001, plaintiff left work with [defendant] and has not worked anywhere since.
12. Dr. Wilfong remains as plaintiffs primary treating physician. The plaintiff continues to experience pain.
14. Defendant gave plaintiff a choice of driving his company vehicle to and from work or driving his own personal vehicle to and from work each day. There would have been no disadvantage to plaintiff had he elected to leave the [company vehicle] at work at the end of each workday rather than drive it home. [Defendant had not] ever told plaintiff that he had to take his company vehicle home at night. Plaintiff chose to drive [the company vehicle] to and from his house each day, instead of his personal vehicle.
15. [Defendant] employees who were permitted to use company vehicles were required to fill out an expense account form on a monthly basis. On these forms, they had to record personal miles and business miles. For every personal mile listed, a calculation would be made as to the value of that mileage and it would be declared by the employee as income, and the employee would then be taxed on that income. On the front of th
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