Skoff v. US Airways, Inc.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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).