An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                          -2-
(“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
                                        -3-
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.
                                       -4-
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.
                                             -5-
      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
                                              -6-
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.
                                           -7-
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
                                             -8-
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
                                         -9-
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.
                         -10-
Affirmed.

Judges BRYANT and GEER concur.

Report per Rule 30(e).
