Opinion
I.C. No. 532640
Filed 21 April 1997
This matter was reviewed by the Full Commission on August 21, 1996 upon the appeal of plaintiff from an Opinion and Award of Deputy Commissioner Douglas E. Berger filed on March 5, 1996.
APPEARANCES
Plaintiff: Ward and Smith, P.A., Attorneys at Law, New Bern, North Carolina; S. McKinley Gray, III, appearing.
Defendants: Maupin, Taylor, Ellis Adams, Attorneys at Law, Raleigh, North Carolina; Jack Holmes, appearing.
The undersigned have reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Douglas E. Berger and the briefs and oral arguments before the Full Commission. The appealing party has not shown good ground to reconsider the evidence, receive further evidence, rehear the parties or their representatives, or amend the Opinion and Award, except for minor revisions.
The Majority agree with that part of the dissenting Commissioner's opinion concerning the unfairness and inequity of the statutory provisions which would have compensated plaintiff's dependents if he had been killed in this same accident, but allow no recovery for his injuries. However, any clarification or modification of this statutory inconsistency should be addressed by the General Assembly and not by this Commission.
* * * * * * * * * * *
The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties at the hearing as:
STIPULATIONS
1. As aforementioned, all stipulations contained in the Pre-Trial Agreement are received into evidence.
2. A copy of a recorded statement made by Alan Dennis on April 25, 1995 marked as exhibit stipulated 1 was received into evidence. (six pages)
3. A copy of a recorded statement by the plaintiff on April 18, 1995 marked as exhibit stipulated 2 was received into evidence.
* * * * * * * * * * *
The Full Commission adopts the findings of fact found by the Deputy Commissioner as follows:
FINDINGS OF FACT
1. Plaintiff had served as a volunteer firefighter for the Conetoe Volunteer Fire Department three years prior to April 18, 1995. Plaintiff was serving as the president of the fire department on April 18, 1995.
2. Plaintiff's duties included fighting fires, responding to calls for help until a rescue squad arrived, and presiding over board meetings and regularly scheduled monthly business meetings.
3. On April 18, 1995, plaintiff presided over the regularly scheduled monthly business meeting at the fire station. All members of the volunteer fire department were required to be at this meeting. The fire chief trained the members on how to test fire hoses. After the meeting, plaintiff left the fire station in order to return home. Plaintiff drove his motorcycle approximately one hundred yards when he lost control of the vehicle inside a curve on the public road. As a result of this motor vehicle accident, plaintiff sustained a shoulder injury, three cracked ribs, a collapsed lung and a hole in his left hand.
4. Plaintiff was not reimbursed for travel expenses arising out of traveling to and from these fire station meetings.
5. Plaintiff was required to receive thirty six hours of training in order to maintain his status as a certified volunteer firefighter. Plaintiff received credit for attending the meeting on April 18, 1995.
6. Plaintiff had a duty to be at the fire station meeting on April 18, 1995.
7. Plaintiff had to provide his own transportation to and from the regularly scheduled monthly business meetings held at the fire station.
8. The members of the fire department do not respond directly to a fire by leaving their homes and traveling to the scene of a fire. The firefighters travel from their homes to the fire station and then leave the fire station to travel to the scene of a fire.
9. Plaintiff was not performing any work for or activity on behalf of the defendant-employer at the time of his injury by accident.
10. Plaintiff was not traveling to a destination required by the defendant-employer at the time of his injury by accident on April 18, 1995.
11. The fire station was the regular situs of plaintiff's employment.
* * * * * * * * * * *
Based upon the findings of fact, the Full Commission concludes as follows:
CONCLUSIONS OF LAW
1. For an injury to be compensable, it must be shown to have resulted from an accident arising out of and in the course of employment. N.C. Gen. Stat. § 97-2(6); Perry v. Bakeries Co., 262 N.C. 272, 136 S.E.2d 643(1964).
2. An injury sustained by an employee while going to or coming from work is not an injury arising out of and in the course of employment. Barham v. Food World, 300 N.C. 329, 266 S.E.2d 676 reh'g denied, 300 N.C. 562, 270 S.E.2d 105(1980).
3. Since plaintiff was going about his own personal business at the time of the accident after leaving a work-related function, plaintiff did not sustain an injury by accident arising out of and in the course of his employment. N.C. Gen. Stat. § 97-2(6); Wright v. Wake County Public Schools, 103 N.C. App. 282, 405 S.E.2d 228(1991).
4. Plaintiff's claim, therefore, is not compensable under the North Carolina Workers' Compensation Act. N.C. Gen. Stat. § 97-2(6).
* * * * * * * * * * *
Based on the foregoing findings of fact and conclusions of law, the Full Commission affirms the holding of the Deputy Commissioner and enters the following:
ORDER
1. Plaintiff's claim must be, and is hereby, DENIED.
2. Each side shall pay its own costs.
This the ____ day of April, 1997.
S/ __________________________ LAURA KRANIFELD MAVRETIC COMMISSIONER
CONCURRING:
S/ ______________________ THOMAS J. BOLCH COMMISSIONER
DISSENTING:
S/ ______________________ BERNADINE S. BALLANCE COMMISSIONER
LKM/bjp
I respectfully dissent from the Opinion and Award of the Full Commission for the following reasons:
Initially it is noted that there is no existing case law or statutory authority providing for workers' compensation which is specifically applicable to the facts of this case. However, the facts before us provide an opportunity to examine what I perceive to be a deficiency in the current statutory language regarding compensation for voluntary fire fighters injured while traveling to or from the workplace.
The primary argument in favor of providing a means of compensating for injury those who voluntarily expose themselves to risk for the benefit of the public good is one of simple fairness and equity. Under N.C. Gen. Stat. § 143-166 et. seq., the legislature deemed such "hazardous public service" sufficient to warrant a system to provide benefits to dependents of those killed in the discharge of their official duties. N.C. Gen. Stat. § 143-166.1. Pursuant to the requirements of the Act, plaintiff in this case would have been eligible for benefits had he been killed in the accident, rather than merely injured. N.C. Gen. Stat. § 143-166.2(f) (includes as "official duties," "while en route to, . . . or returning from training . . .).
Given the stated legislative purpose of providing benefits in case of death, it strains the limits of credulity to interpret the absence of language supporting compensation for injury to indicate an affirmative decision to deny it. This position is further bolstered by language contained in N.C. Gen. Stat. § 97-2(5), which contemplates the computation of average weekly wages for volunteer firemen who experience a "disabling injury" or death under compensable circumstances. By including both possibilities, it may be construed that the legislature intended to provide a system of benefits for injury under the Act, subject to the parameters listed in Chapter 143. Certainly this interpretation provides a more equitable result than the contrary.
There is case law from other jurisdictions which has reached similar conclusions. In Colorado Civil Air Patrol v. Hagans, 662 P.2d 194 (Colo.Ct.App. 1983), plaintiff was a non-compensated volunteer member of a search and rescue operation who was injured while returning home from a mandatory training meeting. The Colorado Court held that because the only reason for the plaintiff's travel was to attend the mandatory meeting, the injury arose out of and in the course of the necessary activities of his employment. The same is true in the case before us. The training session attended by plaintiff was mandatory and a necessity for maintaining his status as a volunteer fire fighter. As such, injuries sustained while en route to or from the session should be compensable as arising out of and in the course of employment. This is especially true when examined in the light of a clear public policy favoring encouragement of this type of voluntary public service.
An additional avenue of providing volunteer fire fighters compensation for injuries incurred under circumstances similar to those in this case is available, involving the creation of a "special errand" exception to the general going and coming exclusion relied upon in the Opinion and Award.
The general rule is that "an injury suffered by an employee while going to or coming from work is not an injury arising out of and in the course of employment." Felton v. Hospital Guild, 57 N.C. App. 33, 34, 291 S.E.2d 158, 159, affirmed, 307 N.C. 121, 296 S.E.2d 297 (1982). Under the special errand exception to this rule, employees who are required by their employment to travel away from the employer's premises are held to be within the course of employment while in transit unless a specific departure for a personal errand is demonstrated. Kirk v. N.C. Dept of Correction, 121 N.C. App. 129, 465 S.E.2d 301 (1995). I contend that in the case of volunteer fire fighters, they are not employees of the fire station, nor do the stations constitute "employer's premises." Therefore, every time a fire fighter travels in furtherance of his employment, the special errand exception should apply.
The Court of Appeals has defined the concept of being "at work" as "being at a particular place, the usual and customary place where one is employed, as well as performing particular tasks, the usual and customary duties that one is employed to perform." Walker v. Durham Life Ins. Co., 90 N.C. App. 191, 195, 368 S.E.2d 43, ___, (1988). This definition does not fit volunteer fire fighters in general, or plaintiff in this specific case.
As a volunteer, it is questionable whether plaintiff may be considered to be "employed" by the State. Generally, employment is established by a contract trading services for compensation. Under N.C. Gen. Stat. § 97-2(2), persons who volunteer for public service are not included in the definition of the term employee. If plaintiff is not employed in the traditional sense, he should not be subject to the traditional limitations imposed on employees. Furthermore, there is no evidence that plaintiff spent any time at the fire station as a regular place of employment, but only that the station served as a storage facility for equipment and a meeting place from which to travel to the site of the current emergency. There is no evidence that plaintiff performed any particular tasks at the fire station beyond presiding over the monthly training sessions, or that he regularly appeared at the station at times other than when called on in an emergency. Rather, the evidence presented tends to show that plaintiff's performance of his duties as a fire fighter were only performed on the site of the particular emergency to which he had been dispatched. The only other times which plaintiff was present at the station, were during those training sessions required for him to continue his volunteer service. I do not believe this is sufficient to establish the station as a place of employment for purposes of invoking the going and coming rule.
If it is accepted that plaintiff is not an employee of the fire station, and/or that the station itself does not constitute a place of employment, then each time the volunteer fire fighter travels to or from a fire fighting related task, he is engaged in a special errand for the State. As such, he is entitled to compensation for injuries incurred on those travels.
For these reasons, I vote to award compensation to plaintiff for injuries sustained in the accident which occurred on 18 April 1995.
S/ _______________________ BERNADINE S. BALLANCE COMMISSIONER