                               NO. COA14-6

                   NORTH CAROLINA COURT OF APPEALS

                         Filed: 29 July 2014


JOHN E. GRAVEN, JR. and
KATHRYN L. WALL,
     Employees, Plaintiffs

    v.                                 Industrial Commission
                                       I.C. File No. X22254, X21936
N.C. DEPT. OF PUBLIC
SAFETY-DIVISION OF LAW
ENFORCEMENT (formerly N.C.
Dept. of Crime Control and
Public Safety),
     Employer, Defendant

    and

CORVEL CORPORATION,
     Third-Party Administrator.


    Appeal   by   Plaintiffs   from   opinion   and   award   entered   2

October 2013 by the North Carolina Industrial Commission. Heard

in the Court of Appeals 5 May 2014.


    Patterson Harkavy LLP, by Narendra K. Ghosh; Baddour,
    Parker, & Hine, P.C., by Phillip A. Baddour, Jr.; and
    Narron,   O’Hale  &   Whittington,  P.A.,   by O. Hampton
    Whittington, Jr., for Plaintiffs-Appellants.

    Attorney General Roy A. Cooper, III, by Special Deputy
    Attorney General Sharon Patrick-Wilson, for Defendant-
    Appellee.


    DILLON, Judge.
                                           -2-
    John     E.    Graven,     Jr.   and    Kathryn        L.    Wall    (“Plaintiffs”)

appeal from the North Carolina Industrial Commission’s opinion

and award denying their claims for benefits.                       For the following

reasons, we affirm.

                                 I. Background

    Plaintiffs filed workers’ compensation claims for injuries

sustained on 16 December 2010, which were subsequently denied by

their employer, the North Carolina Department of Public Safety

(“Defendant”).      Plaintiffs’ claims were consolidated for hearing

before   Deputy     Commissioner      Stephen       T.     Gheen,       who   entered     an

opinion and award concluding inter alia that Plaintiffs each

sustained a compensable work-related injury by accident arising

out of and in the course of their employment.

    On 15 March 2013, Defendant employer appealed to the Full

Commission    (“the     Commission”).               On     2     October      2013,      the

Commission    filed    an    opinion       and    award,       reversing      the   deputy

commissioner’s        decision       and         denying        Plaintiffs      workers’

compensation benefits.           A summary of the parties’ stipulations

and uncontested findings of fact in the Commission’s opinion and

award tended to show as follows:

    Plaintiffs        worked    as   technical        support       analysts        in   the

State    Highway    Patrol     (“SHP”),      a     division       of     Defendant,       as
                                           -3-
technical    support       analysts      with     the    Technical      Services      Unit

providing software training to State Troopers and civilians in

Raleigh and around the State.               They worked four days per week,

from 7:00 a.m. until 5:00 p.m., and were permitted to take a 30-

minute paid lunch break.

      In   December      2010,     Plaintiffs’         supervisor      sent    out    three

emails     over   the    course     of    several       days    inviting       employees,

including     Plaintiffs,        to      attend    a     lunch    (hereinafter         the

“holiday lunch”) to be held at a particular public restaurant on

16   December     2010     “to   celebrate       the     department’s       hard     work.”

Attendance was voluntary, and attendees were required to pay for

their own meals, though they benefitted from a group discount

offered by the restaurant.                Plaintiffs decided to attend the

holiday     lunch   and     rode    to    the     restaurant      in    a     state-owned

vehicle, which had been signed out by another SHP employee.

Less than half of the SHP employees who were invited actually

attended the holiday lunch.                Attendance was not taken at the

lunch.      No    awards    were      presented     at    the    lunch.        No    formal

speeches were given at the lunch; however, three supervisors

made brief remarks, welcoming the attendees and thanking them

for their service.
                                         -4-
    After    the     lunch,     while     Plaintiffs    were       traveling   on   a

public street returning to the SHP office in the state-owned

vehicle, the driver, who was also a SHP employee, encountered a

patch of ice and lost control of the vehicle, causing it to

collide with a tree.            As a result of this accident, Plaintiff

Graven was paralyzed from the chest down, and Plaintiff Wall

sustained a concussion and some cuts and bruises.                       SHP employee

Sergeant Taylor testified that even though Plaintiffs rode in a

state-vehicle       it   was    not   authorized     for     use   to    attend   the

holiday lunch and if the vehicle had been requested for the

purpose of attending the holiday lunch that request would have

been denied.

    Based      on    its   findings,       the   Commission        concluded      that

Plaintiffs’ injuries did not arise out of or occurred within the

course and scope of their employment.                  Plaintiffs appeal from

the Commission’s opinion and award denying them coverage.

                            II. Standard of Review

    “[W]hen         reviewing         Industrial       Commission         decisions,

appellate   courts       must   examine    whether     any   competent      evidence

supports the Commission’s findings of fact and whether those

findings support the Commission’s conclusions of law.”                      Frost v.

Salter Path Fire & Rescue, 361 N.C. 181, 183, 639 S.E.2d 429,
                                     -5-
432 (2007) (citation, brackets, ellipsis, and quotation marks

omitted).    Unchallenged findings of fact, however, “are presumed

to   be   supported   by   competent    evidence     and    are   binding   on

appeal.”     Bishop v. Ingles Markets, Inc., ___ N.C. App. ___,

___, 756 S.E.2d 115, 118 (2014) (citation and quotation marks

omitted).

      In the present case, Plaintiffs challenge certain findings

made by the Commission and also the Commission’s conclusion that

Plaintiffs failed to show by the preponderance of the evidence

that their “injuries arose out of and or occurred within the

course and scope of their employment.”            Accordingly, our review

will consist of determining whether the challenged findings are

supported by the evidence and whether the sustained challenged

findings and the unchallenged findings and stipulations support

the Commission’s conclusion.

                              III. Analysis

      The workers’ compensation system in North Carolina is “a

creature    of   statute   enacted     by   our   General    Assembly”      and

codified in the Workers’ Compensation Act.             Frost, 361 N.C. at

184, 639 S.E.2d at 432.      Our Supreme Court has stated as follows

regarding this system:

            The   social  policy  behind           the  Workers’
            Compensation Act is twofold.          First, the Act
                                      -6-
           provides employees with swift and certain
           compensation    for   the    loss   of   earning
           capacity   from    accident    or   occupational
           disease arising in the course of employment.
           Second, the Act insures limited liability
           for employers.    Although, the Act should be
           liberally   construed     to    effectuate   its
           intent, the courts cannot judicially expand
           the   employer’s     liability     beyond    the
           statutory perimeters.

Id. (quoting Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 190,

345 S.E.2d 374, 381 (1986)).

      The remedies provided under the Act do not apply to all

injuries that may be suffered by an employee, but only to those

injuries which are caused by accidents “arising out of and in

the   course   of     the   employment[.]”     N.C.    Gen.   Stat.   97-2(6)

(2013).   “[W]hether an injury arose out of and in the course of

employment is a mixed question of law and fact[.]”                Fortner v.

J.K. Holding Co., 319 N.C. 640, 643, 357 S.E.2d 167, 168 (1987)

(citations and quotation marks omitted).              The burden is on the

employee to prove by a preponderance of the evidence that the

accident causing him injury arose out of and occurred during the

course of his employment.           Taylor v. Twin City Club, 260 N.C.

435, 437, 132 S.E.2d 865, 867 (1963); Adams v. Metals USA, 168

N.C. App. 469, 475, 608 S.E.2d 357, 361 (2005).               In the present

case, we must       determine whether the Commission erred in its

conclusion     that    Plaintiffs    failed   to   meet   their   burden   of
                                      -7-
proving that their injuries sustained in the 16 December 2010

automobile accident while returning to work from a social event

arose out of and occurred in the course of their employment and

therefore covered under the Workers’ Compensation Act.

    In its opinion and award, the Commission cited two cases

where our appellate courts have considered whether an accident

occurring at a social event arises out of or is in the course of

employment:       Perry v. American Bakeries Co., 262 N.C. 272, 136

S.E.2d 643 (1964), decided by our Supreme Court, and Chilton v.

School of Medicine, 45 N.C. App. 13, 262 S.E.2d 347 (1980),

decided by this Court.

    In 1964, our Supreme Court stated in Perry as follows:

               Where, as a matter of good will, an employer
               at his own expense provides an occasion for
               recreation or an outing for his employees
               and invites them to participate, but does
               not require them to do so, and an employee
               is injured while engaged in the activities
               incident thereto, such injury does not arise
               out of the employment.

Perry, 262 N.C. at 275, 136 S.E.2d at 646 (emphasis added and

citations omitted).         Sixteen years later in 1980, we approved

and adopted in          Chilton a method of analysis for determining

whether    employee        injuries    incurred    at     employer-sponsored

recreational      and    social   activities   arise    out   of   and    in    the

course    of    employment.       Specifically,   we    enumerated       from   1A
                                     -8-
Larson,   Workmen’s   Compensation      Law    §   22.23,   six    factors   to

assist a court in making this determination:

           (1) Did    the   employer    in    fact    sponsor   the
           event?

           (2) To what      extent     was    attendance    really
           voluntary?

           (3) Was there some degree of encouragement
           to attend evidenced by such factors as:

                a. taking a record of attendance;

                b. paying for the time spent;

                c. requiring the employee to work if he
                did not attend; or

                d.   maintaining       a      known    custom     of
                attending?

           (4) Did the employer finance the occasion to
           a substantial extent?

           (5) Did the employees             regard    it as an
           employment   benefit  to          which     they were
           entitled as of right?

           (6) Did the employer benefit from the event,
           not merely in a vague way through better
           morale and good will, but through such
           tangible advantages as having an opportunity
           to make speeches and awards?

45 N.C. App. at 15, 262 S.E.2d at 348.             More recently, in 2007,

our Supreme Court in Frost, supra, stated that the factors we

outlined in Chilton were consistent with its 1964 holding in

Perry.    The Supreme Court in Frost, however, stopped short of
                                          -9-
expressly adopting the Chilton factors because its analysis in

Perry was sufficient to resolve the case before it; but the

Supreme Court did state that the factors adopted by this Court

in Chilton “may serve as helpful guideposts in this inquiry[.]”

361 N.C. at 186-87, 639 S.E.2d at 433-34.

      In   the    present       case,   the   Commission   made    some    findings

regarding the factors considered by the Supreme Court in Perry

as well as many of the six Chilton factors, answering most in

the   negative.           For     instance,     the   Commission     found    that

attendance at the holiday lunch was voluntary and no attendance

was taken.       Further, in its finding of fact 22, the Commission

stated as follows:

            22.     The Commission finds that while
            Plaintiffs were traveling to the holiday
            lunch, they were doing so for their own
            benefit. Although Plaintiffs testified that
            they attended the holiday lunch because they
            felt it was important for the morale of the
            department, less than half of the employees
            attended the lunch, and the undersigned find
            that the benefit to the employer, if any,
            was de minimus.

Plaintiffs specifically challenge               the conclusion contained in

finding of fact 22 that the holiday lunch was for the benefit of

the employees and that the only benefit to the employer was de

minimus at best.          We believe, however, that this conclusion is

supported    by     the     Commission’s        findings   and    the     evidence.
                                        -10-
Specifically, the sixth factor in                Chilton states that for a

social event to be considered a benefit to the employer in the

context of determining whether an injury at the event is covered

by   the   Workers’     Compensation      Act,   the     benefit   must   not    be

“merely in a vague way through better morale and good will, but

through such tangible advantages as having an opportunity to

make speeches and awards[.]”            Chilton, 45 N.C. App. at 15, 262

S.E.2d     at   350.    It   is    undisputed     that    at    least   three   SHP

supervisors      gave   brief     remarks   before     and     during   the   lunch

thanking employees for their dedication, but there was testimony

that these remarks did not rise to the level of a speech.                     Also,

no awards were handed out at the holiday lunch and attendees

paid for their own meals.1          2
                                         These findings answering some of



1
     Plaintiffs argue that Finding of Fact 26, which states that
“[t]he injuries sustained by Plaintiffs on December 16, 2010
occurred during a meal break that Plaintiffs were free to use as
they pleased” is not supported by the evidence because they were
paid for their attendance, the holiday lunch lasted longer than
their normal 30-minute paid lunch break, and they were not
otherwise allowed to spend more than 30 minutes for a lunch
break that day “as they pleased.”    We agree that the evidence
conclusively establishes that Plaintiffs were not free to spend
more than 30 minutes on the day of 16 December 2010 for a lunch
break any way they pleased.    Notwithstanding, we believe that
the fact that SHP employees attending the holiday lunch were
compensated for the long lunch break further supports the
conclusion that the lunch was for the benefit of the employees.
See Smith v. Decotah Cotton Mills, 31 N.C. App. 687, 690, 230
S.E.2d 772, 774 (1976) (stating that “[t]he fact that plaintiff
was being paid during the break is not sufficient to cause [an]
                                     -11-
the Chilton factor questions establish that the holiday lunch

did not arise out of or in the course of Plaintiffs’ employment.

       Further, we believe that the holiday lunch is similar to

the type of event that is described in Perry, quoted above,

which   the   Supreme     Court   stated    would   not    arise     out    of   the

employment.     Specifically, here, though the holiday lunch was

not provided at Defendant’s expense, Defendant did provide “an

occasion” for the employees to participate in “an outing” which

“was    a   matter   of   good    will”     in   that,    as   the    Commission

determined, it was for the benefit of the employees and not

Defendant.    Perry, 262 N.C. at 275, 136 S.E.2d at 646.                   However,

we note that Plaintiffs were not injured at the social event but

while traveling back to the workplace.                Neither party cites to

any case where an employee was injured while traveling between

their workplace and a social event occurring during the workday.

       In North Carolina, the general rule is that “[i]njuries

received by an employee while traveling to or from his place of

employment     are      usually    not      covered       by   the     [Workers’

Compensation] Act unless the employer furnishes the means of


accident to arise out of her employment”).
2
     Plaintiffs   also  challenge   finding of   fact  23  that
“Plaintiffs exposure to the risk of highway travel is a risk to
which the general public is equally exposed,” arguing that this
finding is a conclusion of law. In either case, we address this
issue of causation below in this opinion.
                                            -12-
transportation as an incident of the contract of employment” or

if   such        injuries    are     sustained     while   the     employee     is    “on

premises owned or controlled by the employer[.]”                         Strickland v.

King, 293 N.C. 731, 733, 239 S.E.2d 243, 244 (1977).                                 This

general rule has been referred to as the “coming and going” rule

by our Supreme Court.                See, e.g., Royster v. Culp, Inc., 343

N.C.   279,       281,    470    S.E.2d    30,   31   (1996).      Our     Courts    have

explained that “the question of arising out of is not satisfied

. . . where the injury is due to the hazards of the public

highway      –    risks     common   to    the   general   public.”         Harless       v.

Flynn, 1 N.C. App. 448, 458, 162 S.E.2d 47, 54 (1968) (emphasis

in original).             See Roberts v. Burlington Industries, 321 N.C.

350, 358, 364 S.E.2d 417, 422-23 (1988); Rose v. City of Rocky

Mount, 180 N.C. App. 392, 401, 637 S.E.2d 251, 257 (2006), disc.

review denied, 361 N.C. 356, 644 S.E.2d 232 (2007).

       The       “going    and   coming”    rule,     however,     is    subject     to   a

number of exceptions.                For instance, there is “the ‘traveling

salesman’         exception,       the    ‘contractual     duty’        exception,    the

‘special errand’ exception, and the ‘dual purpose’ exception.”

Dunn v. Marconi, 161 N.C. App. 606, 611, 589 S.E.2d 150, 154

(2003).
                                     -13-
      The    “traveling    salesman”     exception       applies   where    an

employee’s    “work     entails    travel     away   from    the   employer’s

premises [and does not involve] . . . a distinct departure [to

make] . . . a personal errand.”             Id. at 612, 589 S.E.2d at 155

(citation    omitted).      The    “special    errand”     exception   applies

where the employee is “engaged in a special duty or errand for

his employer.”    Id.     (citation omitted).        The “contractual duty”

exception applies where “the employer furnishes the means of

transportation as an incident of the contract of employment.”

Id.   (citation   omitted    and    emphasis     added).      However,     this

“contractual duty” exception does not generally apply where the

transportation is “provided permissively, gratuitously, or as an

accommodation[.]”        Hunt v. Tender Loving Care, 153 N.C. App.

266, 270, 569 S.E.2d 675, 679 (citation omitted), disc. rev.

denied, 356 N.C. 436, 572 S.E.2d 784 (2002).             The “dual purpose”

exception applies in certain circumstances where a trip serves

“both business and personal purposes” and where it involves a

“service to be performed for the employer [that] would have

caused the journey to be made by someone even if it had not

coincided with the employee’s personal journey.”              Dunn, 161 N.C.

App. at 612-13, 589 S.E.2d at 155 (citation omitted).
                                       -14-
      In the present case, the fact that Plaintiffs were riding

in an automobile provided by SHP does not bring the accident

within the “contractual duty” exception since the transportation

to the holiday lunch was not “an incident of the contract of”

their employment but, as found by the Commission, was provided

as   an   accommodation,       as   testified    by   SHP   employee        Sergeant

Taylor.     See Hunt, supra.          None of the other exceptions neatly

fit the present situation since Plaintiffs were not traveling to

perform work for their employer but were attending a social

event.

      Plaintiffs argue that the “coming and going” rule does not

apply     because    “[i]n    selecting    the   location    and     date    of    the

holiday     lunch,    [D]efendant      increased      [P]laintiffs’         risk    of

having a motor vehicle accident as they did[,]” noting that the

location was a 20-30 minute drive from the workplace and that

SHP employees would not ever travel such a distance during their

lunch     break   since      they   only   receive    30   minutes    for     lunch.

Essentially, Plaintiffs are arguing that the accident arose out

of their employment under the “increased risk” analysis that has

been applied by our Supreme Court.               See Roberts v. Burlington

Industries, 321 N.C. 350, 358, 364 S.E.2d 417, 422-23 (1988).
                                             -15-
Our   Supreme      Court     in    Roberts        described       the       “increased       risk”

approach as follows:

            Under [an “increased risk analysis], the
            injury arises out of the employment if a
            risk to which the employee was exposed
            because of the nature of the employment was
            a    contributing proximate cause of the
            injury, and one to which the employee would
            not have been equally exposed apart from the
            employment.    The causative danger must be
            peculiar to the work and not common to the
            neighborhood.”

Id.   (citations,        brackets,     and        quotation          marks       omitted).        We

believe, however, that the “increased risk” analysis does not

apply    where     an    employee      voluntarily             attends       a    social     event

which,    itself,       does   not    arise       out     of    his     employment         and    is

injured    due     to    a   risk    that     is    common        to    the       public     while

traveling    on    a    public      road     to    that      event.          Therefore,       this

argument is overruled.

      We believe that the Commission’s consideration of Perry v.

American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643 (1964), and

Chilton v. School of Medicine, 45 N.C. App. 13, 262 S.E.2d 347

(1980) was appropriate as it first established that the social

event     itself    did      not     arise    out       of      or     in    the     course      of

Plaintiffs’ employment.              Further, the application of the “going

and   coming”      rule      shows    that        Plaintiffs’          injuries       were       not

covered under the Workers’ Compensation Act where they were the
                                   -16-
result of an accident caused by a risk that is common to the

public occurring while they were traveling on a public road

while returning to their workplace from that social event.

      For the reasons stated above, we hold that the Commission’s

conclusion   that    Plaintiffs   failed     to   meet   their    burden   of

proving that the accident causing their injuries arose out of

and occurred in the course of their employment is supported by

the   Commission’s   findings;    and,    accordingly,   the     opinion   and

award of the Commission is affirmed.

      AFFIRMED.

      Chief Judge MARTIN and Judge STEELMAN concur.
