Skoff v. US Airways, Inc. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-994
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
SHARON SKOFF, Employee
Plaintiff
v. From the North Carolina
Industrial Commission
I.C. File No. X67234
U.S. AIRWAYS, INC., Employer, and
NEW HAMPSHIRE INSURANCE CO.,
Carrier, (CHARTIS CLAIMS, INC.,
Third Party Administrator)
Defendants
Appeal by defendants from opinion and award entered 25 June
2013 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 22 January 2014.
The Sumwalt Law Firm, by Vernon Sumwalt, and Ted A. Greve &
Associates, PA, by Ted A. Greve, for plaintiff-appellee.
Brooks, Stevens & Pope, P.A., by Frances M. Clement and
Daniel C. Pope, Jr., for defendant-appellants.
CALABRIA, Judge.
U.S. Airways, Inc. (“U.S. Airways”) and New Hampshire
Insurance Company (collectively, “defendants”) appeal from an
opinion and award by the Full Commission of the North Carolina
Industrial Commission (“the Commission”) granting Sharon Skoff’s
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(“plaintiff”) claim for workers’ compensation benefits. We
affirm.
I. Background
Plaintiff was employed as a flight attendant with U.S.
Airways since 1988. On 29 September 2011, plaintiff disembarked
at Charlotte Airport from a U.S. Airways flight on which she had
been serving as a flight attendant. She boarded an airport
employee shuttle bus (“the bus”) that was so crowded she had to
stand to travel from the terminal to the employee parking lot
about two miles away (“the parking lot”). Plaintiff was
standing shoulder to shoulder with other employees in the aisle
near luggage shelves. The bus driver braked suddenly during the
journey to the parking lot, causing plaintiff to fall forward.
A piece of luggage hit plaintiff, and another airport employee
who was also riding the bus fell on top of plaintiff. As a
result, plaintiff sustained injuries to her neck and shoulder
that required medical treatment, specifically an anterior
cervical discectomy and fusion.
Plaintiff was unable to work in any capacity since the date
of the accident, and filed a claim with U.S. Airways alleging to
have suffered a compensable injury. U.S. Airways denied
plaintiff’s claim on 14 October 2011, finding that “the alleged
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incident did not occur within the course and scope of
employment.” Plaintiff requested her claim be assigned for
hearing, seeking workers’ compensation from U.S. Airways.
Deputy Commissioner George R. Hall, III (“Deputy Commissioner
Hall”) heard the matter on 28 August 2012. Deputy Commissioner
Hall entered an Opinion and Award on 5 December 2012, finding
and concluding that plaintiff sustained a compensable injury on
29 September 2011 under both the “only means of ingress or
egress” or “special hazards”1 exception and the “provision of
transportation” exception to the “coming and going” rule.
Defendants appealed to the Full Commission.
On 25 June 2013, the Commission entered an Opinion and
Award upholding Deputy Commissioner Hall’s Opinion and Award,
concluding that plaintiff had a compensable injury to her neck
and shoulder on 29 September 2011 arising out of and in the
course of her employment with U.S. Airways. The Full Commission
also found and concluded that the “only means of ingress or
egress” exception and the “provision of transportation”
exception to the “coming and going” rule applied. Plaintiff was
awarded, inter alia, reasonable and necessary medical
1
For the sake of simplicity, we will refer to this exception as
the “only means of ingress or egress” exception.
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compensation as well as temporary total disability compensation.
Defendants appeal.
II. Standard of Review
Defendants argue that the Commission erred in concluding
plaintiff had a compensable injury by accident arising out of
and in the course of employment with U.S. Airways because
neither the “only means of ingress or egress” exception nor the
“provision of transportation” exception apply in the
circumstances of the instant case. We disagree.
Review of an opinion and award of the Industrial Commission
“is limited to consideration of whether competent evidence
supports the Commission’s findings of fact and whether the
findings support the Commission’s conclusions of law. This
‘court’s duty goes no further than to determine whether the
record contains any evidence tending to support the finding.’”
Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660,
669 S.E.2d 582, 584 (2008) (quoting Anderson v. Lincoln Constr.
Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). “The
Commission is the sole judge of the credibility of the witnesses
and the weight to be given their testimony.” Anderson, 265 N.C.
at 433-34, 144 S.E.2d at 274.
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Generally, “injuries occurring while an employee travels to
and from work do not arise in the course of employment[.]”
Barham v. Food World, Inc., 300 N.C. 329, 332, 266 S.E.2d 676,
678-79 (1980). However, there are several exceptions to this
rule, including the “provision of transportation” exception.
Under the “provision of transportation” exception, an injury
during travel arises in the course of employment where “the
employer furnishes the means of transportation as an incident to
the contract of employment.” Strickland v. King, 293 N.C. 731,
733, 239 S.E.2d 243, 244 (1977). See also Tew v. E.B. Davis
Elec. Co., 142 N.C. App. 120, 123, 541 S.E.2d 764, 766 (2001)
(recognizing the exception where “the employer, as an incident
to the contract of employment, provides the means of
transportation to and from the place where the work of
employment is performed.”). The “provision of transportation”
exception applies when either “employees are required, or as a
matter of right are permitted, to use [the transportation] by
virtue of the contract” of employment. Jackson v. Bobbitt, 253
N.C. 670, 676-77, 117 S.E.2d 806, 810 (1961).
In the instant case, plaintiff was injured on a crowded bus
designated for airport employees to travel between the terminal
and the parking lot. The evidence at the hearing showed that
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U.S. Airways contracted with the City of Charlotte for U.S.
Airways employees’ use of the parking lot. Cindy Monsam
(“Monsam”), U.S. Airways’ director of planning and
administration, testified that the airport provided parking
passes and “hang tags” to U.S. Airways for distribution to
employees. U.S. Airways employees were assigned their parking
passes when they were hired or assigned to the Charlotte
airport. When the parking passes were assigned to its
employees, U.S. Airways notified the airport, which then billed
U.S. Airways for the assigned parking passes. Monsam testified
that U.S. Airways paid $20.42 per month for an employee parking
pass, and that employees were not reimbursed for parking in
other places. (T p 50, 66) Monsam indicated that employees
were encouraged to park in the designated employee parking lots,
that most of the 7000 U.S. Airways employees who parked in the
parking lot used the bus to travel between the parking lot and
the terminal, that employees were permitted to take the bus to
the terminal, and that U.S. Airways approved of its employees’
use of the bus.
The Commission found that, by the greater weight of the
evidence, the parking passes and “hang tags” paid for by U.S.
Airways constituted a valuable mutual benefit to both U.S.
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Airways and its employees in consideration of and as an incident
to their contract of hire, at least as an unwritten or implied
connection to the underlying purpose of the contract. By taking
measures to make parking available for its employees, U.S.
Airways invited and encouraged its employees to use the
designated employee parking lots at the airport, and U.S.
Airways knew and approved of its employees using the bus to
travel between the parking lot and the airport terminal. The
Commission also found that, by the greater weight of the
evidence, the buses were the “recognized, customary, and
habitual way, if not the only or exclusive way,” for flight
attendants to travel between the parking lots and the airport
terminal.
Defendants contend that the Commission erred in relying
upon Puett v. Bahnson Co., 231 N.C. 711, 58 S.E.2d 633 (1950),
for its conclusion that plaintiff’s injury fell within the
“provision of transportation” exception. In Puett, the
plaintiffs were injured in an automobile collision while they
were commuting from Morganton to Rhodhiss to install an air-
conditioning system. Id. at 712, 58 S.E.2d at 633. The
plaintiffs’ employer paid each employee an extra $20.80 per week
to cover living and travel expenses. Id. Our Supreme Court
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upheld the Commission’s award in favor of the plaintiffs,
holding that the injuries were compensable where the cost of
transporting employees to and from their work was an incident to
their contract of employment. Id. at 713, 58 S.E.2d at 634.
In the instant case, the evidence at the hearing showed
that U.S. Airways provided parking at the airport employee
parking lots for its employees, furnished its employees with
parking passes, and paid the parking fees to the airport as an
incident to plaintiff’s employment. Monsam specifically
testified that U.S. Airways paid $20.42 per month for an
employee parking pass, and that employees were not reimbursed
for parking in other lots. Therefore, since U.S. Airways
provided parking at the parking lot for its employees and paid
the parking fees instead of requiring employees to pay for
parking, plaintiff had the right to use the bus that routinely
traveled between the parking lot and the terminal. The
Commission’s reliance on Puett was not misplaced.
While defendants contend that U.S. Airways does not require
its flight attendants to ride the bus between the terminal and
the parking lots, the evidence at the hearing supported the
Commission’s finding that it was not only a benefit to both
employer and employee, but it was also approved by U.S. Airways
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as the “recognized, customary, and habitual way, if not the only
or exclusive way” for flight attendants to travel between the
parking lot and the terminal. The use of the buses by U.S.
Airways employees travelling between the parking lot and the
terminal is implied in the assignment of an employee’s parking
pass, and these privileges are considered a matter of right for
the employees. Tew, 142 N.C. App. at 123, 541 S.E.2d at 767.
The evidence at the hearing supports the Commission’s
findings, and the findings support the Commission’s conclusion
that plaintiff sustained a compensable injury that arose in the
course of her employment. The evidence also supports the
Commission’s findings that plaintiff’s injury occurred at a
place and under circumstances where the “provision of
transportation” exception to the “coming and going” rule applies
to the facts of this case. Because we find that the Commission
correctly concluded that plaintiff’s injury was compensable
pursuant to the “provision of transportation” exception, we need
not address the parties’ remaining arguments. See Hollin v.
Johnston Cty. Council on Aging, 181 N.C. App. 77, 81-84, 639
S.E.2d 88, 91-92 (2007) (holding plaintiff’s injuries were
compensable where one of three different exceptions applied).
We affirm the Commission’s order and award.
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Affirmed.
Judges BRYANT and GEER concur.
Report per Rule 30(e).