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Waite v. Meyers8/2/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Defendants (Heilig Meyers and Kemper Insurance Companies) appeal from an Opinion and Award of the North Carolina Industrial Commission awarding plaintiff (Patsy Waite) disability and medical workers' compensation benefits. We affirm.
The pertinent facts are undisputed and may be summarized as follows: Plaintiff was employed as a salesperson by defendant Value House Furniture (a division of Heilig Meyers), a two-story furniture store in Nashville, North Carolina. Her duties included tidying the store, straightening and vacuuming furniture, waiting on customers, and running errands. The plaintiff's errandssometimes included trips to the bank to make deposits or get cash. Plaintiff remained on the clock while running these errands. She frequently worked through her lunch break because company policy required that at least two employees remain in the store at all times.
On 23 July 1999 plaintiff and a store manager both worked through lunch. They ordered lunch by delivery from a nearby restaurant, and paid with twenty dollars borrowed from the cash register. The manager attested to the routine nature of this practice: " e did this very often_-borrow[ed.] . . . hey would have to pay it back at the end of the day so we could make the drawer right[.]" As the store prepared to close, the manager "told [plaintiff] she needed the money to put back in the till[.]" Plaintiff left the store and began walking to a nearby bank to withdraw money for the store register and for her personal use. While walking through the store's parking lot, plaintiff tripped on a cable wire and suffered serious injuries to her hip and knee requiring medical treatment and surgery.
On 24 July 1999 plaintiff filed a claim for workers' compensation benefits, which defendants denied on the basis that "[plaintiff was] not injured by accident in the course and scope of employ[ment]." In December 2002, plaintiff's workers' compensation claim was heard before Deputy Commissioner Adrian A. Phillips, who entered an opinion and award granting medical and disability workers' compensation benefits to plaintiff for her left hip injury. Defendant appealed to the Full Commission, whichadopted and affirmed, with some modification, the Deputy Commissioner's holding, and entered an opinion and award granting medical and disability workers' compensation benefits to plaintiff. On 6 May 2004 defendant filed notice of appeal from this Opinion and Award.
Standard of Review
"The standard of appellate review of an opinion and award of the Industrial Commission is well established. Our review 'is limited to a determination of (1) whether the Commission's findings of fact are supported by any competent evidence in the record; and (2) whether the Commission's findings justify its legal conclusions.'" Aaron v. New Fortis Homes, Inc., 127 N.C. App. 711, 714, 493 S.E.2d 305, 306 (1997) (quoting Counts v. Black & Decker Corp., 121 N.C. App. 387, 389, 465 S.E.2d 343, 345 (1996)) (citation omitted). "The findings of fact made by the Commission are conclusive upon appeal when supported by competent evidence, even when there is evidence to support a finding to the contrary." Plummer v. Henderson Storage Co., 118 N.C. App. 727, 730, 456 S.E.2d 886, 888 (1995) (citation omitted). " his Court is 'not at liberty to reweigh the evidence and to set aside the findings . . . simply because other . . . conclusions might have been reached.'" Baker v. City of
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