How “course and scope” can affect your workers’ compensation claim in North Carolina
An injury must arise “out of and in the course of the employment” in order to be compensable under the North Carolina Workers’ Compensation Act.
Specifically, N.C. Gen. Stat. § 97-2(6) says:
“Injury and personal injury” shall mean only injury by accident arising out of and in the course of the employment, and shall not include a disease in any form, except where it results naturally and unavoidably from the accident.”
These 2 requirements—arising out of and in the course of employment—are separate and distinct, and both must be satisfied in order to render an injury compensable.
Simply put, the term “arising out of” refers to the origin or causal connection of the injury to the employment, while the phrase “in the course of” refers to the time, place and circumstances under which the injury by accident occurs.
In this article, we will explore some common situations involving the “arising out of” requirement and the “in course of” requirement. Most injuries that occur on the employer’s premises will satisfy both of these requirements since the employee is typically injured while performing his or her assigned work activities at the employer’s designated place of employment.
However, injuries that occur on the employer’s premises before work, after work, or during breaks must be analyzed under either an exception to the “going and coming” rule or under the “personal comfort doctrine.”
Also, the employee’s activities at the time of the injury must be examined to make sure that there is some causal connection to employment. Just because an injury happens at work does not make it compensable. Conversely, just because an injury happens outside of the primary workplace does not mean your claim can automatically be denied.
For example, if the employee is engaged in a forbidden act, the arising out of the requirement may not be met even if the injury occurs on the employer’s premises. Injuries resulting from assault and horseplay will generally satisfy the in course of requirement since most of these injuries occur on the employer’s premises during work hours. But these situations usually require a more detailed analysis of the arising out of requirement.
Generally speaking, if the assault or horseplay has its origin in the employment, or if the employment puts the employee at an increased risk of assault, then the arising out of requirement will be met and the injury will be compensable.
Finally, the analysis for injuries occurring during an athletic or social event must specifically address both the arising out of requirement and the in course of requirement since these injuries tend to occur away from the employee’s regular job site.
As you’ll see, satisfying the N.C. statute of course and scope can be complicated and difficult in certain work injury cases. If you have questions or need legal assistance, we strongly recommend you consult with our knowledgeable North Carolina workers’ compensation attorneys immediately to get answers.
The premises rule and break time injuries at work
Generally speaking, North Carolina courts have held that injuries occurring on the employer’s premises satisfy the in the course of employment requirement. However, there are times when the usual rule must be examined a bit more carefully.
These periods of time are when:
- An employee is coming to work but has not yet clocked in
- When an employee has clocked out and is in the process of leaving work
- When an employee is at lunch or on another break from his or her job routine
The first 2 situations involve an analysis and application of the “going and coming” rule. The third situation involves an analysis of whether the employee’s actions at the time of injury constitute an “appreciable benefit” to the employer. This third situation has often been referred to as the “personal comfort doctrine.”
The going and coming rule
The “going and coming” rule provides that an injury occurring while an employee travels to and from work does not satisfy the in course of employment requirement of § 97-2(6) and is therefore not compensable.
There are, however, 3 notable exceptions to the going and coming rule. The courts have deemed an injury to be in the course of employment even if the employee is not yet at work when:
- The injury occurs on the employer’s premises (premises exception)
- The injury occurs during the employee’s performance of a “special errand” for the employer (special errand exception)
- The employer either arranges transportation pursuant to an employment contract or the employer compensates the employee for their transportation costs to and from work (transportation exception)
The premises exception
The premises exception to the going and coming rule applies when the employee is injured while on premises owned, controlled, or maintained by the employer. The most common application of the premises exception applies to those injuries that occur in the employer’s parking lot.
Injuries that occur on public parking lots, public walkways, or public highways are usually not compensable, even if these places are necessary routes between one area of employer-owned property to another area of employer-owned property.
The theory behind the narrow reading of the premises exception is that crossing public roads and navigating public walkways are risks inherent to the general public and are not special hazards caused by employment.
The success or failure of a majority of parking lot cases hinges on whether or not the employer owns, maintains, or controls the parking lot in which the employee is injured. In a past case (Royster v. Culp, Inc., 1996), the North Carolina Supreme Court adopted a “bright line” test that deemed only those injuries sustained on parking lots owned, controlled, or maintained by the employer to be compensable.
The current trend in the courts is to deny workers’ compensation benefits if the employee is injured off-premises while taking a necessary route between the place of employment and the employer’s parking lot.
Case example: Royster v. Culp, Inc. (1996)
In this case, the plaintiff (Mr. Royster) was struck by a car and injured while attempting to cross a public highway that separated his place of employment from a parking lot that was owned and operated by his employer.
The Deputy Commissioner and the Full Commission initially denied benefits. But in a unanimous opinion, the Court of Appeals reversed the ruling. The Supreme Court then granted discretionary review and reversed the Court of Appeals ruling with 2 justices dissenting.
The Supreme Court stated that the premises exception to the going and coming rule did not apply in this case because the injury occurred on a public street. The Court reasoned that Mr. Royster was not performing any duties for his employer at the time of the injury and wasn’t exposed to any greater danger than the public generally.
The Court relied heavily on a past case (Barham v. Food World, 1980), in which an employee was injured when she slipped and fell on ice in a loading zone in front of the employer’s store in a shopping center. The employee was walking to her work site after parking her car in the shopping center parking lot. The employer did not own the parking lot or the loading zone, but the employer did have access to the entire shopping center. In the Barham case, the Supreme Court emphasized that the employer did not own, maintain, or provide control over the parking lot and that the employee was not performing any duties of her employment at the time of her injury.
Other notable cases that have ruled on the premises exception to the going and coming rule include:
- Deseth v. LensCrafters, Inc. (2003). The plaintiff was the manager of a Lenscrafters store in Hanes Mall in Winston-Salem. He arrived to work and parked in the far back portion of the mall parking lot, as Lenscrafters had directed him to do. As he was walking to the back entrance of the store, a coworker accidentally struck him with their car, resulting in the plaintiff’s death. The evidence showed that the plaintiff had the keys to the store in his hand as well as papers relating to his job. The evidence showed that Lenscrafters did not own, maintain, or control the mall parking lot although it did pay into a pool for its share of the parking lot maintenance. The store had a non-exclusive right to use the parking lot. The Court held that Plaintiff’s claim was not compensable as an exception to the going and coming rule because the employer did not own, maintain, or control the parking lot.
- Grady v. Hillandale Medical Center (2002). The plaintiff worked as a nurse at a medical center that leased its office space in a shopping center. She left work and was walking to her car in the parking lot when she tripped and fell. She broke her right leg and ruptured a disk in her back. Under the terms of the lease agreement, the defendant did not own or control the shopping center parking lot, therefore the nurse’s injuries weren’t compensable. The Court said that merely paying a surcharge for the upkeep of the common areas was not enough to show that the defendants exercised actual control of the premises.
- Ragland v. Harris (2002). The plaintiff had clocked out of work and had asked for a ride home from a coworker. The coworker agreed to give the plaintiff a ride home, but he made the plaintiff wait for 25 minutes while he took care of business. The plaintiff clocked out and waited in the break room until the coworker was ready to take him home. After the plaintiff got in the passenger’s seat of the co-worker’s car, the co-worker drove the car into another vehicle in the parking lot. There was no dispute that the employer owned, maintained, and controlled the parking lot. The plaintiff brought a civil suit for damages against the coworker for his injuries. Since there was no dispute that the parking lot was owned and controlled by the employer for the benefit of the employees, the premises exception applied and the injury was compensable.
- Shivers v. Navy Exchange (1998). The parking lot exception to the going and coming rule is not limited to state court decisions. The Fourth Circuit applied the premises exception to find that an injury occurring on a commissary parking lot owned by the federal government, but maintained by the Navy Exchange store, was compensable.
- Ham v. Ogden Corp. (1998). The Full Commission awarded benefits to a janitor who was injured in a parking lot not owned by his employer but located at his place of employment. The janitor was employed by the employer-defendant to provide maintenance and janitorial services to Bridgestone/Firestone at Bridgestone’s plant in Wilson, North Carolina. Bridgestone provided a parking lot for the use of the defendant’s employees. The plaintiff was required to show a security card in order to access the parking lot. The parking lot was guarded by security personnel and was not open to the public. The Full Commission broadly interpreted the premises exception to apply even though the defendant did not maintain, control, or own the parking lot. The Full Commission reasoned that since the plaintiff reported to the Bridgestone plant pursuant to the defendant’s instructions and since the Bridgestone plant was the plaintiff’s regular place of business, the premises exception applied and the plaintiff was therefore entitled to benefits.
- Smallwood v. Eason (1997). The Supreme Court affirmed its narrow interpretation of the premises exception in this case. Plaintiffs Peggy Smallwood and Craig Morning were picked up after their shift at the Perdue Farms maintenance garage by plaintiff Morning’s brother, Duane Morning. Duane was driving an automobile owned by Laura Grant. At about the same time, a forklift driven by Defendant Curtis Eason and owned by Perdue stalled in the road adjacent to the Perdue facilities. Eason was unable to move the forklift completely out of the road and Duane’s car collided with the forklift causing injury to the plaintiffs. The road adjacent to the Perdue facilities was the only means of ingress and egress from the Perdue facility. The road was open to the general public, but no homes or businesses other than Perdue were on the road. Since Perdue did not own, maintain, or control the public road on which the accident occurred, the plaintiffs were not in the course and scope of their employment with Perdue at the time of the accident and the Workers’ Compensation Act would therefore not apply.
- Holt v. Alex Lee, Inc. (1997). The Full Commission applied the premises exception and found a meat cutter’s injuries compensable when he returned to the supermarket at which he worked after he had left for the day and slipped on a wet spot on the floor.
- Jennings v. Backyard Burgers of Asheville (1996). The Court of Appeals reluctantly applied Royster and held that the going and coming rule prevented an employee from receiving workers’ compensation benefits when the employee was injured while going down a narrow set of stairs in a parking lot not maintained, owned, or controlled by the employer.
- Harless v. Flynn (1968). The plaintiff was employed at the Henry T. Link Corporation plant in Lexington, North Carolina. Link Corporation maintained on its premises a parking lot for its employees and guests. One afternoon, the plaintiff and defendant were preparing to leave the employer’s parking lot to go eat lunch somewhere off the employer’s premises. The vehicle in which the plaintiff was a passenger was struck by the vehicle being driven by the defendant. The accident occurred while both cars were still in the employer’s parking lot. The Court held that plaintiff’s injury occurred within the course of her employment and was therefore covered by the Workers’ Compensation Act.
- Maurer v. Salem Co. (1966). The claimant was injured after work in his employer’s parking lot while pushing a fellow employee’s car trying to get the engine started in order to get a ride home. The Supreme Court found the case compensable.
- Bass v. Mecklenburg County (1962). The claimant, who was provided room and maintenance on the premises of her employment, was injured when she slipped and fell while on her way from her living quarters to the building where she expected to have breakfast before proceeding to the main building where she worked. The Supreme Court recognized her claim as compensable.
- Davis v. Devil Dog Mfg. Co. (1959). The Supreme Court held that the claimant’s broken ankle occurred in the course of her employment because she slipped and fell while on her way to work walking from her parked car in the employer’s parking lot down a clay walk to her employer’s plant.
Although the premises exemption has historically been narrowly applied in North Carolina, both the state and federal courts have been quite clear that if the employer either owns, maintains, or controls the premises—including a parking lot—where the employee is injured, that injury will be compensable.
When employees are injured on parking lots either before or after work, the injury comes within the premises exception to the going and coming rule.
What about unauthorized acts and the premises rule?
When there are injuries that occurred on the employer’s premises but there is a question as to whether the injury arose out of employment, the question of “unauthorized acts” arises. Activities that directly or indirectly further an employer’s business arise out of employment, even if those activities are forbidden or unauthorized.
However, if the employee is injured while engaging in unreasonable activities that bear no relationship to employment, even if these activities occur on the employer’s premises, the arising out of employment requirement will not be satisfied.
There is no bright-line test to apply in analyzing these cases. The facts of each case must be considered to determine if the activity bears a reasonable relationship to employment.
Examples of unauthorized acts that may still be compensable based on past rulings include:
✔ Injured while operating work equipment (such as a forklift) without authorization (Hoyle v. Isenhour Brick & Tile, 1982)
✔ Hurt while running in the workplace despite it being forbidden (Spratt v. Duke Power Co.,1983)
✔ Injured while picking fruit for an elderly client as a CNA (McGrady v. Olsten Corp., 2001)
Examples of unauthorized acts that NOT be compensable based on past rulings include:
✘ Hurt while attempting to climb a fence to leave the jobsite (Arp v. Parkdale Mills, Inc., 2003)
✘ Injured while attempting to pick up final payment after being fired (Byrd v. George W. Kane, Inc., 1988)
Break-time injuries and the personal comfort doctrine
Generally, injuries occurring while an employee is tending to his or her personal health and comfort, such as visits to the bathroom, smoking breaks and coffee breaks, will be compensable. The theory is that the personal comfort of an employee is integral to their productivity and thus the employer receives an appreciable benefit from the employee undertaking these activities.
The personal comfort doctrine is clearly stated in Rewis v. New York Life Ins. Co. (1946) as follows:
An employee, while about his employer’s business, may do those things which are necessary to his own health and comfort, even though personal to himself, and such acts are regarded as incidental to the employment … “Such acts are as necessary to the life, comfort and convenience of the workman while at work, though personal to himself, and not technically acts of service, are incidental to the service; and an accident occurring in the performance of such acts is deemed to have arisen out of the employment. Such acts are regarded as inevitable incidents of the employment, and accidents happening in the performance of such acts are regarded as arising out of and in the course of employment.”
North Carolina courts have held that a broad range of activities fit into the personal comfort doctrine, including:
- Visiting the washroom
- Smoke breaks
- Breaks to partake of refreshment
- Personal errands involving a temporary absence from the employee’s post of duty
- Going to an off-premises cafeteria during a 15-minute paid break
- Running on the employer’s premises to retrieve an object during a paid 10-minute rest break
The operative principle in determining whether to allow compensation for break-time injuries is the degree of authority the employer has retained over the employer. The Court has outlined several factors to consider in making this determination. These factors are:
- The duration of the break period
- Whether the employee is paid during the break
- Whether the employer provides a place for the employee to take breaks
- Whether the employer allows off-premises breaks
- The proximity of the off-premises location where the employee was injured to the employment site
What about injuries during a lunch break?
Injuries occurring during an employee’s lunch hour are usually not compensable because the employer does not retain as much control over the employee as it does during shorter breaks. Even if the break-time injury occurs on the employer’s premises, the factors listed above should be applied in determining whether there is a reasonable relationship between the injury and employment.
The following cases illustrate these distinctions:
- Horn v. Sandhill Furniture Co. (1956). Mr. Horn was injured on a public road during his lunch break while traveling from the employee-designated parking lot to the employer’s main factory. The Supreme Court held that his claim was not compensable even though he was taking a necessary route between the parking lot and the factory.
- Forsyth v. Inco (1989). The decedent, who was mentally retarded, choked on a peanut butter sandwich during her lunch break. She was on her employer’s premises when she choked, but had brought her sandwich from home. The Court held that the plaintiff was in the course of employment when she died, but choking on a sandwich did not arise out of her employment.
- Watkins v. City of Wilmington (1976). The injured worker was a fireman who was required to stay at the firehouse during his entire 24-hour tour of duty. The claimant was injured in an explosion that occurred when he poured gasoline on the oil breather cap from a coworker’s car when he attempted to clean it during his lunch hour. The Court held that “the plaintiff’s act in assisting in the cleaning of the oil breather cap from a fellow employee’s car during the lunch period was a reasonable activity, and the risk inherent in such activity was a risk of employment.” The Court held that when an employee has been directed to remain at a particular place, he cannot be expected to remain immobile.
Work injuries arising from horseplay and assaults
This topic is closely tied to the topic of unauthorized acts. As with unauthorized acts, gross negligence is not a bar to recovery. Contributory negligence, even in the form of horseplay, is also not a bar to recovery.
In other words:
Engaging in horseplay alone does not necessarily mean that an injury must be denied. If the activity has any reasonable relationship to employment, it may be compensable.
The following relevant case examples show how North Carolina courts have historically ruled in such cases:
- Bare v. Wayne Poultry Co. (1984). A poultry company employee was injured during horseplay with a co-employee. The employee was a chicken deboner who worked in close proximity to another chicken deboner on the processing line. The employees used long, sharp knives in their job. The plaintiff and her co-worker were kidding around trying to cut each other’s apron strings. The co-worker missed the apron and cut the plaintiff’s thigh. Playing around with the knives on the processing line was a common practice of the employees, and the Commission found that this practice was condoned by the employer. The Court agreed that the plaintiff’s participation in horseplay was foolish and negligent, but that was not the point since fault is not a factor under the Act.
- Williams v. Hydro Print, Inc. (1984). The plaintiff was on a break in the employer’s courtyard when he and his co-workers spotted a shiny object on the railroad tracks. He started running with his co-workers to investigate the object and fell. The defendants argued that the plaintiff was engaging in horseplay at the time of the injury and his claim should be denied. However, the court granted benefits citing the personal comfort doctrine.
- McGraw v. Fieldcrest Mills, Inc. (1987). The plaintiff sustained a back injury when a coworker, with whom he was joking around, grabbed the plaintiff by his belt and jerked him. The Deputy Commissioner denied the plaintiff benefits finding that his injury sustained resulted from horseplay. The Full Commission overturned the deputy’s denial and awarded benefits. The Court of Appeals affirmed. The Court cited Bare and agreed that plaintiff’s participation in horseplay was irrelevant to whether his injury arose out of his employment.
- Stackhouse v. Gold Kist, Inc. (2002). The Full Commission awarded benefits to a chicken-catcher who was stabbed by a co-worker’s brother. The plaintiff worked on a rough crew. The crew often verbally abused one another, but although the conversation was considered harsh and profane, most of the workers considered it to be joking around. However, 2 brothers on the crew did not appreciate the ridicule. The plaintiff picked on the smaller brother and started wrestling with him. The older brother retaliated by stabbing the plaintiff in the back. The Commission awarded benefits stating that “verbal abuse and harassment were a routine part of the work environment for all of the employees.” The injury arose out of employment since the supervisor condoned the activity and since the joking around was a part of the normal work routine.
Even though an assault is an intentional act, the injury will be compensable if the assault arises out of employment. Most employees claiming benefits are in the course of employment when they are assaulted. The analysis is whether the assault arises out of employment.
The most determinative factor is the motivation for the assault. If the motivation has its roots in employment, then the assault will be compensable. However, if the assault is for purely personal reasons, then benefits will be denied even if the assault occurs on the employer’s premises.
Assaults will also be compensable when an employee is injured while performing an activity that appreciably benefits the employer, or when the employment places the employee at an increased risk to be assaulted.
The injured party always has the option of pursuing a claim against the person who assaulted him. The right to pursue a claim against the coworker or third person for the intentional injury will not bar the workers’ compensation claim.
North Carolina’s exclusivity provision (§ 97-10.1) does not bar a claim against a co-worker for intentional misconduct. However, in order to pursue a civil claim against the employer, the employer must expressly ratify the intentional acts of its employee. This is different from a Woodson claim which infers the constructive intent of the employer, instead of actual intent, as the basis for a civil claim.
The following case examples illustrate 4 types of workplace assault claims:
1. Random attacks
- Gallimore v. Marilyn’s Shoes (1977). The Supreme Court denied benefits to an employee who was kidnapped from a mall parking lot as she was leaving her job at a shoe store in the mall. The employee was robbed of the money in her purse and ultimately murdered. The Court held that in order for an assault to be compensable, the “injury must be caused by a risk which is reasonably related to and created by the employment.” Furthermore, the “causative danger must be peculiar to the work and not common to the neighborhood.” The Court indicated that if Ms. Gallimore was carrying the money bag at the time of the abduction, her assault may have arisen out of her employment. Because there was no such evidence, her claim was denied.
- Holshouser v. Shaner Hotel Group (1999). Plaintiff was abducted from the employer’s parking lot on her way to work by an unknown assailant. She was raped in an adjacent area overgrown with shrubs and trees. The Court determined that the assault was not a natural and probable consequence of employment. Instead, it was a hazard to which the plaintiff would have been equally exposed despite the employment. Accordingly, the Court denied benefits.
- Culpepper v. Fairfield Sapphire Valley (1989). The Court of Appeals awarded benefits to a waitress who, on her way home from work, stopped to aid a customer who had flagged her down on the side of the road. The customer had flirted with the waitress earlier in the evening, but the waitress politely turned down his advances. When the waitress saw that the customer apparently needed assistance, she stopped to help. The customer kidnapped the waitress and sexually assaulted her. The court cited the “appreciable benefits” test and found the injuries sustained in the sexual assault were compensable because assisting a guest of the employer was of an appreciable benefit to the employer making her actions come within the course and scope of her employment.
- D’Aquisto v. Mission St. Joseph’s Health System (2005). The plaintiff worked at a hospital where she would often need to go to the morgue to retrieve paperwork. While waiting for the elevator to take her from her office to the morgue, she was accosted by an unknown person wearing scrubs. The man forced her into the stairwell and sexually assaulted her. The Court found that her job duties took her out of her office to other areas of the hospital where few other people were around. Also, the man wearing scrubs appeared to have legitimate business reasons for being in the hospital. Based on these factors, the Court held that the plaintiff’s job placed her at an increased risk for assault and awarded benefits.
- Caple v. Bullard (2002). The plaintiff was the night manager at Burger King, whose duties included transferring the money from the register to the safe at night. Burger King hired a night porter to make sure the plaintiff was safe while she performed her nightly activities. One evening when the plaintiff and the night porter were alone, the night porter assaulted the plaintiff with a wrench and demanded that she open the safe. The night porter ended up stealing the safe when the plaintiff could not open it. The plaintiff’s claim was accepted, but she filed a civil suit against Burger King for NIED, IIED, and negligent hiring. She filed an assault claim against the night porter. That claim resulted in a default judgment against the porter. The superior court dismissed plaintiff NIED, IIED and negligent hiring claims against Burger King under the exclusivity provision of the Act.
- Hobgood v. Anchor Motor Freight (1984). A truck driver was hit with a pipe and shot in the head by an unknown assailant while he was sitting in the cab of his truck at a delivery point. The plaintiff had made a delivery in Goldsboro and then clocked out. The next day, he was supposed to make a delivery to Pinehurst. While he was sitting in his cab at the Goldsboro location, a man smashed the window and demanded money. When the plaintiff said he didn’t have any money, the assailant shot him in the head. The Court allowed benefits finding that an employee whose work entails travel away from the employer’s premises acts within the course of employment continuously during the trip, unless there is proof of a distinct departure on a personal errand.
3. Domestic violence
Assaults arising out of domestic violence issues rarely will support an award of workers’ compensation benefits. This is true even if an innocent co-worker gets caught in the crossfire.
- Hemric v. Reed and Prince (1981). The Court of Appeals denied benefits to the plaintiff who was unintentionally shot by the estranged boyfriend of a co-worker. The boyfriend had come to the co-worker’s jobsite with the intention of shooting her. The boyfriend shot and killed the co-worker. In the melee, 4 bullets struck the plaintiff while he was at his desk. The Court reasoned that the motivation for the assault was purely personal in nature and was not connected to the employment.
- Robbins v. Nicholson (1972). The Court denied death benefits when the plaintiff was shot while working at a convenience store by a co-worker’s estranged husband. The husband had repeatedly threatened to kill his wife because he thought she was cheating on him.
- Ross v. Mark’s Inc. (1995). The Court denied death benefits for a woman killed by her ex-husband while leaving work with the bank deposit, holding that the primary motivation was personal even though the husband ended up taking the money after killing the wife.
4. Road rage
In Dodson v. Dubose Steel, Inc. (2003), the plaintiff, John Dodson, was a truck driver by trade. During one of his routes, he was cut-off in his lane of travel by another motorist, Troy Campbell. He and Campbell exchanged gestures. Dodson exited his vehicle and approached Campbell’s driver’s side. According to the evidence, Dodson did not have an intention to injure Campbell when he approached the vehicle. Apparently by accident, Campbell struck and killed Dodson with his car.
The Full Commission found that Dodson sustained a compensable injury by accident arising out of and in the course of his employment. The Full Commission found that Dodson’s job as a truck driver placed him at an increased risk of an assault due to “road rage.”
The Court of Appeals affirmed the Full Commission and found that assaults based on disputes concerning work are compensable. The Court stated that “defendants failed to prove by the greater weight of the evidence that Dodson’s injury and death resulted from Dodson’s willful intention to injure or kill himself or another.” The Court focused more on the “assault” theory of liability than the “increased risk” theory adopted by the Full Commission.
However, Judge Steelman of the Supreme Court dissented and rejected the assault analysis since assault cases usually involve injuries inflicted by co-workers or injuries occurring at the workplace. Judge Steelman did not agree that the “road” constituted Dodson’s workplace. Instead, Judge Steelman analyzed the claim under the increased risk argument. He felt that there was no connection between Dodson’s job as a truck driver and the road rage that led to the confrontation with Campbell. He also agreed with the defense’s argument that once Dodson exited his truck, he deviated from his job and his conduct was no longer related to his employment.
The Supreme Court adopted Judge Steelman’s dissent, reversed the Court of Appeals and denied benefits.
Injuries arising from job-related athletic and social events
An employee may be able to recover from an injury occurring during his or her attendance or participation at employer-sponsored athletic or social events. Again, though, the facts of each case must be examined to determine if the injury bears a reasonable relationship to employment and if the employee was in the course of employment at the time of the injury.
North Carolina courts have considered the following factors when determining whether or not compensation should be awarded in such cases:
- Did the employer in fact sponsor the event?
- To what extent was attendance really voluntary?
- Was there some degree of encouragement to attend?
As evidenced by such factors as:
•Taking a record of attendance
•Paying for the time spent
•Requiring the employee to work if he or she did not attend
•Maintaining a known custom of attending
- Did the employer finance the occasion to a substantial extent?
- Did the employees regard it as an employment benefit to which they were entitled as of right?
- Did the employer benefit from the event, not merely in a vague way through better morale and goodwill, but through such tangible advantages as having an opportunity to make speeches and awards?
These claims will most likely be denied if the employee is not required to attend the event, even if the employer pays for the event and gains a benefit by fostering goodwill among the employees. However, if attendance is strongly encouraged and some of the other factors are present, then the claim may be compensable.
The following 8 case examples shed more light on relevant past rulings:
- Barber v. Minges (1943). The decedent was burned to death during an annual boat outing arranged by the employer when the boat’s gasoline engine exploded. The outing occurred on a Sunday, the decedent was not paid for his attendance, his attendance was not required, and he would not have been penalized for failing to attend. The Court denied the claim even though the outing promoted goodwill among the company.
- Lewis v. W.B. Lea Tobacco Co. (1963). The employee died as a result of injuries received in an automobile accident that occurred when he was returning home from a hunting trip with his boss’ children. The decedent’s primary job was a forklift operator, but about 25% of his time was spent as a chauffeur for one of the company’s office managers while the manager vacationed at his cottage. On the day in question, the decedent was invited to go hunting with his boss’ sons. He was not required to go hunting and the boys would have gone hunting without the decedent if he chose not to go. The Court held that although the decedent was in the course of employment at the time of the accident, the accident did not arise out of employment because the hunting trip did not benefit the employer.
- Perry v. American Bakeries Co. (1964). The employee was paralyzed when diving in a hotel swimming pool the night before a sales meeting occurring at the hotel. The employer had paid for the accommodations and the employee was required to attend the sales meeting. Following an employer-sponsored social hour at the hotel, the employee went to dinner with a co-worker then decided to go swimming. He broke his neck while diving. The Court held that the injury did not arise out of and in the course of employment because swimming was not a function of employment. Swimming did not further the employer’s business, and the employee was not required to use the swimming pool.
- Burton v American Nat’l Ins. (1971). The decedent drowned while on a fishing trip he had won as a reward for increasing his sales. The decedent was not required to go on the trip. The employer paid for the food and lodging, but not for the transportation or fishing equipment. The employees on the trip each contributed $25 to the cost of the trip. The Court relied on the cases above in holding that the death was not compensable.
- Chilton v. Bowman Gray School of Medicine (1980). A medical school faculty member was injured while playing volleyball at the annual radiology department picnic. Faculty members were encouraged to attend the picnic to meet the new residents, but attendance was not mandatory. The picnic had been held for several years and was advertised throughout the department. The department paid for the picnic shelter and beverages, and the faculty members provided the food. About 80% of the department was in attendance, but no record of attendance was taken. Faculty members were not required to work at the medical school if they did not attend the picnic. Even though the picnic was an annual event, it was not a benefit to which the employees were entitled as a matter of right. Also, the radiology department did not use the picnic as an opportunity to give speeches, pep talks, or awards.
The Court rejected the plaintiff’s argument that the picnic fostered goodwill and served the larger purpose of enhancing the educational experience by encouraging personal interaction between the students and faculty. Instead, the Court denied benefits and determined that the personal contact between the faculty and students was vague and unmeasurable as a benefit to the employer.
- Martin v. Mars Mfg. Co. Inc. (1982). An employee was injured while dancing at a company Christmas party. The company paid for the party, which was held at a nearby Moose Lodge. All employees were invited and encouraged to attend. Attendance was voluntary and no attendance records were kept. Wages were paid for the time that the employees spent at the party, but wages were also paid to those employees who chose not to attend. The party was considered a fringe benefit to the employees, with the purpose of improving employer-employee relations. Most of the employees attended the party. The plant manager gave a pep talk at the party and handed out service awards. The injured employee had worked for the company for 7 years and had attended all but 1 of the Christmas parties.
In this case, the Court allowed benefits because the event was employer-sponsored. Employees were encouraged to attend and were paid for their time at the party. The injured employee had attended many of the parties in the past, and the employer benefited from the event because the managers had the opportunity to make speeches and present awards.
- Floyd v. First Citizens Bank (1999). The plaintiff slipped and fell while buying bagels for the office Christmas breakfast. She was instructed by her boss to coordinate the breakfast, which included ordering and picking up the bagels. She slipped and strained her lower back on her way out of the bagel store. The Full Commission analyzed the case under the dual purpose rule and the special errand exception, and they found that plaintiff’s job created the necessity to travel to the bagel store.
The Court of Appeals affirmed and noted that the plaintiff’s attendance at the Christmas breakfast was mandatory, she was ordered to do the tasks necessary to coordinate the breakfast, and she was injured in the performance of her work-related duties. Since Ms. Floyd was required to coordinate and attend the breakfast, the injury she received while furthering that task was compensable.
- Jacobs v. Sara Lee Corp. (2003). The employee was injured while leaving a baseball game to go to an employer-sponsored event at a nearby restaurant. The employee was attending a trade show in Chicago and decided to see a White Sox game with some co-workers. The baseball game was not part of the trade show’s scheduled events. When it started to rain, the plaintiff decided to leave the baseball game and go to a party at Dave & Busters that was on the trade show’s list of scheduled events. The plaintiff slipped and fell on his way out of the stadium, injuring his knee.
The Full Commission stated that since the plaintiff was not required to be at either the baseball game or the party, his injury did not arise out of and in the course of his employment. The Full Commission held that “the trip to Chicago was a pleasure trip won by the plaintiff as a result of a sales incentive program with his employer. The plaintiff was not required to travel to the baseball game but rather chose to do so at his own desire. His attendance at the baseball game, including travel to and from the game, was not an action arising out of and in the course of plaintiff’s employment.”
Commissioner Mavretic dissented, stating that the trip to Chicago was clearly business-related travel and arose out of the plaintiff’s employment. However, the Court of Appeals rejected Commissioner Mavretic’s argument and held that even though the employee was on a business trip at the time he was injured, attending the baseball game constituted a personal deviation from the course of employment at the time of the injury and his injury was therefore not compensable.
The intoxication defense (work injuries arising from an impairment)
The intoxication defense is an affirmative defense, meaning the burden of proof is with the defendant to show that:
- The plaintiff was appreciably impaired at the time of the injury. and
- This impairment was a proximate cause of the plaintiff’s injury.
The intoxication does NOT need to be the sole proximate cause of the injury, but it must be more probable than not a cause in fact of the accident and resulting injury. Existing case law holds that the burden of proof lies with the defendant with respect to both of these elements.
- Bursey v. Kewaunee Scientific Equip. Corp. (1995). This case holds that it was the employer’s burden to prove proximate cause between the presence of cocaine in an employee’s system and the employee crushing his hand in a stamp machine, despite the employee failing a post-injury drug test.
- Anderson v. Century Data Systems, Inc. (1984). This case held that the Industrial Commission needs to make findings of fact to both whether an employee was intoxicated at the time of injury and whether intoxication was a proximate cause of the injury.
- Gaddy v. Anson Wood Products (1988). In this case, the plaintiff was awarded benefits despite a BAC of .37 because intoxication was not a proximate cause of injury.
- Willey v. Williamson Produce (2003). The employee was a truck driver who died in a traffic accident. He tested positive for cocaine, but there was conflicting expert testimony on whether the metabolic levels caused a pharmacological effect on the truck driver. The Commission found in favor of the truck driver and stated that the employer had not met its burden of proving impairment under 97-12.
The Court of Appeals reversed the Commission’s ruling and stated that the defendant had a “presumption of impairment” due to the presence of cocaine in the plaintiff’s system. The Court of Appeals relieved the employer of proving that the intoxication caused the injury. Instead, the Court placed the burden on the plaintiff to prove that the employee’s intoxication did not cause the accident.
Judge Greene dissented on the basis that the plain language of 97-12 fails to mention a “presumption of impairment.” Judge Greene stated that the presumption of impairment endorsed by the majority opinion improperly shifts the burden of proof from defendants to plaintiffs on the issue of impairment.
The Supreme Court reversed and reinstated the Commission’s findings based on Judge Greene’s dissent. This case says there is no presumption of impairment even if there is evidence that the plaintiff was intoxicated at the time of the accident. The burden of proving that the intoxication caused the accident remains with the defendant.
Note that the new statute switches the presumption of impairment. If this case were decided under the new statute, the defendant’s burden of proof on impairment would have been satisfied. The burden would have switched to the plaintiff to show that he was not impaired, as the Court of Appeals argued.
However, the Court of Appeals would have still been wrong to switch the burden of proximate cause to the plaintiff once the defendant produced a failed blood test. Even under the new statute, the burden of proving that the impairment caused the accident stays with the defendant.
The new statute (§ 97-12)
The legislature amended § 97-12 effective on October 1, 2005, to add a rebuttable presumption of impairment if the plaintiff fails a drug test or has a BAC of .08 or higher. The Willey case cited above may have been one of the reasons the legislature changed the statute to switch the burden of disproving impairment to the plaintiff.
The new statute reads as follows:
97-12. Use of intoxicant or controlled substance; willful neglect; willful disobedience of statutory duty, safety regulation or rule
No compensation shall be payable if the injury or death to the employee was proximately caused by:
(1) His intoxication, provided the intoxicant was not supplied by the employer or his agent in a supervisory capacity to the employee; or
(2) His being under the influence of any controlled substance listed in the North Carolina Controlled Substances Act, G.S. 90-86, et seq., where such controlled substance was not by prescription by a practitioner; or
(3) His willful intention to injure or kill himself or another.
When the injury or death is caused by the willful failure of the employer to comply with any statutory requirement or any lawful order of the Commission, compensation shall be increased ten percent (10%). When the injury or death is caused by the willful failure of the employee to use a safety appliance or perform a statutory duty or by the willful breach of any rule or regulation adopted by the employer and approved by the Commission and brought to the knowledge of the employee prior to the injury compensation shall be reduced ten percent (10%).
“Intoxication” and “under the influence” shall mean that the employee shall have consumed a sufficient quantity of intoxicating beverage or controlled substance to cause the employee to lose the normal control of his or her bodily or mental faculties, or both, to such an extent that there was an appreciable impairment of either or both of these faculties at the time of the injury.
A result consistent with “intoxication” or being “under the influence” from a blood or other medical test conducted in a manner generally acceptable to the scientific community and consistent with applicable State and federal law, if any, shall create a rebuttable presumption of impairment from the use of alcohol or a controlled substance.
The burden of proof shall be upon him who claims an exemption or forfeiture under this section.
Under the old statute, the defendant’s burden of proving impairment was not satisfied by a failed drug test. The defendant still had to produce expert testimony that the drugs or alcohol impaired the plaintiff to an appreciable extent.
The new law still requires the defendant to produce a failed drug test, but the defendant no longer needs to prove that the plaintiff was impaired in addition to the drug test.
The new statute states if the defendant can show appreciable impairment, either through a blood alcohol test or another medical test, the defendant has satisfied its burden of proof with respect to impairment.
Once the failed drug test is produced, the burden then shifts to the plaintiff to show that he or she was not appreciably impaired despite the presence of drugs in his system. It is now the plaintiff’s responsibility to hire a toxicologist to say that the presence of drugs or alcohol did not impair them.
The new statute does not change the language regarding the burden of proof with respect to proximate cause. The new presumption of impairment should not raise a presumption that the impairment caused the injury. However, defense attorneys may try to argue that once the employer produces a failed drug test, the burden of proof with respect to both elements switches to the plaintiff.
Our experienced plaintiffs’ attorneys will continue to take the position that the case law clearly states that these are 2 separate elements with 2 separate burdens of proof and that the new statute only speaks to the impairment element.
When to consult a North Carolina work injury attorney
So, in light of this information, the question is:
Is your work injury or illnesses considered to be in the course and scope of employment under North Carolina law?
As you can see, the answer to this question can be quite complicated depending on the unique circumstances surrounding your claim. For this reason, it’s vital you consult with an experienced and knowledgeable work injury attorney who understands relevant legal theories and case precedents that can help support your claim.
If you or a loved one were injured at work in North Carolina, don’t hesitate to contact our North Carolina workers’ compensation attorneys immediately for straightforward legal help.