'Fun Day' injury not within scope of employment, N.C. Court says

John O'Brien Jan. 31, 2007, 5:22pm

RALEIGH, N.C. - The Workers' Compensation claim of a woman injured at her company's annual recreational outing should not be honored, the North Carolina Supreme Court said Friday.

"The question presented is whether Plaintiff's injury arose out of her employment. We hold that it did not," Edward Thomas Brady wrote in the opinion for the majority.

Tammy Frost says her back was injured at a "Fun Day" organized by her community to show its appreciation to Salter Path Fire and Rescue. Frost was a voluntary emergency medical services captain for about 20 years.

While operating a go-cart on Sept. 30, 2001, she alleged that she rounded a corner and collided with another go-cart. She says she was transported to an emergency room and was diagnosed with a cervical strain and released the same day.

Since then, Frost says she has been unable to work because of unresolved neck and back pain. The North Carolina Industrial Commission determined that attending "Fun Day" was voluntary and funded by community donations. In doing so, it denied Frost's claim.

Another hearing in 2002 found the same, though an appeal to the Full Commission resulted in the decision being reversed in 2005.

Defendants Salter Path Fire and Rescue and its insurance carrier, Volunteer Safety Workers' Compensation Fund, appealed that decision to the state's Court of Appeals.

"On March 7, 2006, a divided panel of the North Carolina Court of Appeals issued its opinion holding that the evidence in the record did support the findings of fact, which in turn supported the conclusions of law, and that the Full Commission properly determined that Plaintiff suffered a compensable injury resulting in temporary total disability," Brady wrote.

"The dissent disagreed, stating that some of the Full Commission's findings of fact were not supported by competent evidence in the record."

With the dissent in their corner, the defendants again appealed. The Supreme Court heard arguments Nov. 22.

Brady wrote that the Industrial Commissions findings of fact do not support its conclusion of law that Frost's injury arose out of her employment.

"We therefore reverse the decision of the Court of Appeals and remand this case to that court for further remand to the Industrial Commission for proceedings not inconsistent with this opinion," Brady wrote. "As to the issue presented in Defendants' petition for discretionary review, we conclude that discretionary review was improvidently allowed.

Justice Robin Hudson did not participate in the case, and Justice Patricia Timmons-Gooden offered a dissent.

She wrote that "Fun Day" was intended to boost the morale and goodwill of Salter Path Fire and Rescue workers, and that though attendance was voluntary, it was also urged.

Also, Salter Path Fire and Rescue paid its employees admission to Lost Treasures Golf and Raceway.

"I refer specifically to the Commission's findings that Plaintiff was told by the chief of Salter Path that he wanted her to attend 'Fun Day' and that the event benefitted Salter Path in terms of volunteer retention," Timmons-Gooden wrote.

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