Opinion
I.C. NO. 940754
Filed 7 January 2002.
This case was reviewed by the Full Commission on April 25, 2001, upon appeal by defendants from an Opinion and Award by Deputy Commissioner Amy L. Pfeiffer filed on October 11, 2000. Deputy Commissioner originally heard this case in Charlotte, North Carolina, on May 15, 2000. At the deputy commissioner hearing, the parties agreed that there was no need for subsequent depositions given the lack of medical issues in this case. The record was closed following the receipt of the parties' contentions.
Plaintiff: Frederick R. Stann, Gastonia, North Carolina; appearing.
Defendants: Hedrick, Eatman, Gardner Kincheloe, Raleigh, North Carolina; Jennifer S. Jerzak, appearing.
***********Upon review of the competent evidence of record, and having the benefit of the arguments of the parties, the Full Commission, upon reconsideration of the evidence, reverses the Opinion and Award of the Deputy Commissioner and denies plaintiff's claim for compensation.
The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties in a pretrial agreement dated 12 May 2000 as:
STIPULATIONS
1. The date of the injury giving rise to this claim was 23 May 1999.
2. At the time of the injury giving rise to this claim, the parties were subject to and bound by the provisions of the North Carolina Workers' Compensation Act.
3. At such time, an employment relationship existed between plaintiff and defendant-employer.
4. At such time, plaintiff's average weekly wage was such that it yields the maximum compensation rate of $560.00.
5. Plaintiff received short-term disability from 24 May 1999 through 19 November 1999, in the total amount of $15,325.54. This amount was paid pursuant to defendant-employer's short-term disability plan, which is 100% funded by defendant-employer.
6. The issue to be determined as a result of this hearing is whether plaintiff's injury arose out of and in the course and scope of his employment.
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Based upon the greater weight of the competent and credible evidence of record in this matter, the Full Commission makes the following additional
FINDINGS OF FACT
1. On the date of the evidentiary hearing, plaintiff was a fifty-three year old college graduate who had worked for defendant-employer for eighteen years. Plaintiff's job duties consisted mostly of outside sales activities. These duties involved traveling to the places of business of customers and prospective customers to promote defendant-employer's products and to take orders. Plaintiff also delivered emergency orders to customers.
2. As an incentive, defendant-employer offered trips to food shows as prizes for employees who sold certain volumes of products. Plaintiff had taken approximately twenty such trips during his employment with defendant-employer. Defendant-employer provided transportation and, normally, spending money to employees who won these trips. Plaintiff and other employees were paid their normal salaries while on the trips. Defendant-employer also provided a program of food show events that he could attend.
3. No attendance was taken at the food show events or at the related parties.
4. On 23 May 1999, plaintiff was in Chicago, having won a trip to the Chicago food show through the aforementioned incentive program with defendant-employer. On that day, plaintiff attended a major league baseball game. The baseball game was not on any itinerary or program provided for this trip and tickets to the ball game were not provided by defendant-employer. Plaintiff personally chose to attend the ball game and paid for his ticket.
5. While exiting the ballpark, plaintiff slipped and fell, twisting and rupturing a tendon in his right knee.
6. Plaintiff indicated that he left the ball game early because it started to rain and that he intended to go to a "Dave Busters" party which was listed on a program of events available to salespeople who, like plaintiff, had won the privilege of taking the trip to Chicago. Defendant-employer did not expect plaintiff to attend the ball game; the baseball game was not on the itinerary of events related to the food show; and travel to and from the ball game was for entirely for plaintiff's benefit and did not serve any interests of defendant-employer. Plaintiff was free to attend, or not attend, events on the itinerary that was provided to him; defendant-employer anticipated that plaintiff would attend some portion of the food show only. Plaintiff was free to travel to baseball games, take city tours, site see, or to remain in his hotel; plaintiff was not required to attend any particiular function, and plaintiff was not required to attend a "Dave Busters" party, which was scheduled to begin several hours after the time plaintiff left the ball park. The greater weight of the evidence is that the attendance of the ball game was a deviation from any benefit the employer could have anticipated from plaintiff's attendance at any food show event, and plaintiff was still on his deviation to the ballgame when he fell.
8. After the fall, plaintiff immediately was taken to the hospital. Plaintiff had surgery to repair his knee on 2 June 1999.
9. Plaintiff's 23 May 1999 injury did not arise out of and in the course of his employment with defendant-employer.
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The foregoing stipulations and findings of fact result in the following additional
CONCLUSION OF LAW
Plaintiff did not sustain an injury arising out of and in the course of his employment. N.C. Gen. Stat. § 97-(2) (6); Roman v. Southland Trans. Co., 350 N.C. 549, 515 S.E.2d 214 (1999); Perry v. Bakeries Co., 262 N.C. 272, 136 S.E.2d 643 (1964); Lewis v. Tobacco Co., 260 N.C. 410, 132 S.E.2d 877 (1963); Burton v. American National Ins. Co., 10 N.C. App. 499, 179 S.E.2d 7 (1971). An injury to an employee while he is performing acts for his benefit, or for the benefit of third persons, is not compensable unless the act benefits the employer to an appreciable extent. Fulcher v. Willard's Cab Co., 132 N.C. App. 74, 511 S.W.2d 9 (1999) (Greene, J., concurring); see Lewis, supra; Burton, supra. The condition that the injury must arise out of and in the course of employment separates workers' compensation from general health insurance. Perry, supra. Plaintiff's injury while on a deviation to a baseball game is not compensable. Bowser v. N.C. Department of Correction, ___ N.C. App. ___ (20 November 2001); N.C.G.S. § 97-2(6). Plaintiff had not ended his personal deviation when he was injured leaving the ballpark. Bowser, supra.
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The foregoing findings of fact and conclusions of law result in the following:
AWARD
1. Plaintiff's claim for workers' compensation benefits is denied.
2. The parties shall pay their respective costs.
S/______________ RENE C. RIGGSBEE COMMISSIONER
CONCURRING:
S/_______________ DIANNE C. SELLERS COMMISSIONER
DISSENTING:
S/_______________ LAURA K. MAVRETIC COMMISSIONER
I respectfully dissent from the majority's decision to reverse the Deputy Commissioner's Opinion and Award. I agree with the Deputy Commissioner that plaintiff's knee injury arose out of and within the course of his employment with defendant-employer and therefore is compensable. I would affirm the decision of the Deputy Commissioner.
Our courts have consistently held that employees whose work requires them to 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, 477 S.E.2d 678 (1996); Chandler v. Teer, 53 N.C. App. 766, 281 S.E.2d 718 (1981), aff'd, 305 N.C. 292, 287 S.E.2d 890 (1982); Martin v. Georgia-Pacific Corp., 5 N.C. App. 37, 167 S.E.2d 790 (1969). In this case, the trip to the National Restaurant Association exposition in Chicago was clearly business-related travel and arose out of plaintiff's employment. Defendant-employer paid plaintiff's salary while he was in Chicago, paid for plaintiff's airfare and hotel accommodations, and gave him expense money. Plaintiff was expected to attend the food show during the four days he was staying in Chicago at defendant-employer's expense.
The evidence shows that plaintiff went to a baseball game in the afternoon prior to attending a social event at Dave Busters. Although in previous years defendant-employer had provided tickets to baseball games to its employees attending the food shows, this particular year defendant-employer chose not to do so. Therefore, I agree with the majority that plaintiff's attendance at the White Sox-Yankees game on the date of his injury by accident was a purely voluntary decision and constituted a personal departure from the business-related nature of his trip.
However, I disagree with the majority that plaintiff remained on a personal departure at the time of his injury. North Carolina caselaw has consistently held that a traveling employee is entitled to compensation for injuries received while returning to his hotel, while going to or from a restaurant, or while returning to work after having made a detour for his own personal pleasure. Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569 (1968); Kiger v. Bahnson Service Co., 260 N.C. 760, 133 S.E.2d 702 (1963); Chandler v. Teer, supra. The Court of Appeals has stated:
"Although on a private mission prior to an accident, an employee who is injured while returning to his employment should be compensated under the Workers' Compensation Act. In order for [the employee's] death to be compensable, then, he need not have returned all the way to his sleeping quarters, just as an employee injured while returning to work on the employer's premises need not be in his exact assembly-line position or in his own office at the time of his injury in order to be compensated."
Chandler v. Teer, 53 N.C. App. 766 at 770-771, 281 S.E.2d 718 at 721. Therefore, under this analysis, plaintiff reentered the course of employment when he was leaving the stadium to travel to the food show-related party at Dave Busters.
Although the majority opinion states that plaintiff was not required to attend the food show-related party, the evidence shows that because defendant-employer financed the trip, plaintiff believed that he was obligated or expected to attend the trade parties and other events that were included on the program itinerary provided by defendant-employer. Defendants' witness Rick Keiper testified that defendant-employer had never informed employees that they were not expected to attend the related parties. Plaintiff had attended the NRA food show three times previously and always went to the parties and other sponsored events. These social events were business related in that they were an opportunity for plaintiff to meet salesmen and vendors he dealt with by telephone but had not had an opportunity to meet and to create general goodwill for defendant-employer. At the shows and related functions, employees were expected to network with other individuals involved in the food service business and to educate themselves about new products on the market that were displayed and presented as samples at the various functions.
Therefore, because of connections with people in the trade and knowledge about products acquired by plaintiff at parties and other events related to the food show, defendant-employer directly benefited from plaintiff's attendance at these parties. Plaintiff's attendance at the exposition-related parties was within the course of his employment with defendant-employer. In my opinion, to hold otherwise would be to infer that any employee traveling on his employer's business would not be covered under our Workers' Compensation Act if injured at a reception or other social event associated with business seminars, conferences, and conventions. While attendance might not be required by an employer, most employers expect their employees to participate in these functions. Conferees attend these functions for the same networking purposes plaintiff attended the parties at the trade show, including the one at Dave Busters plaintiff intended to attend after the ballgame. It is unrealistic to argue that attendance at such business-related functions is purely elective and merely for social reasons.
For the foregoing reasons, I believe that plaintiff had reentered the course of his employment when he was leaving the stadium to travel to the food show party and consequently his fall was an injury by accident arising out of and in the course of his employment with defendant-employer. Therefore, plaintiff is entitled to compensation for his injury.
S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER